11th Circuit Rules In Favor Of Forced Trans Sterilization For Correct Drivers Licenses In Alabama

The decision is the latest in a series of court rulings from conservative courts rolling back transgender rights in the United States.

Edward Parr Turtle US Court of Appeals Building - Public record

On Friday, the 11th Circuit Court of Appeals reversed a lower court decision that had ruled Alabama's policies for changing sex markers on driver's licenses unconstitutional. Previously, Alabama required transgender residents to undergo sterilizing sex reassignment surgeries to update the gender marker on their driver's license. In 2021, a federal judge barred the state from enforcing this policy. However, the appeals court has now ruled that transgender individuals do not have equal protection rights based on their gender identity, determining that restrictions on driver's licenses for transgender people, including those requiring sterilization, are constitutional.

The case was brought in 2018 by three transgender women in Alabama, challenging a state policy that required transgender individuals to undergo sex reassignment surgery to update the gender markers on their state documents. The women testified that they faced significant discrimination and abuse because their driver's licenses did not reflect their gender identity or presentation. One woman, a firefighter, was barricaded in a hot room and left with third-degree burns while her colleagues called her a "freak." Another lost her job after presenting a driver's license that did not match her gender identity. A third was ridiculed by a driver's license exam administrator when it became clear that her gender marker differed from her identity.

In 2021, U.S. District Judge Myron Thompson ruled that the drivers license policy was unconstitutional, violating the transgender women’s equal protection claims. The judge ruled that the injury to the plaintiffs was severe, stating, “The injuries caused by Policy Order 63 are severe. For individuals born in Alabama or previously licensed there whose gender identity differs from the sex they were assigned at birth, the policy requires surgery that results in permanent infertility in "almost all cases" in order to obtain a license with a sex designation that matches their gender. (See Decl. of Dr. Gorton, doc. no. 52-45, ¶ 43.) Even for those who want the surgery, it may be unaffordable, as it is for Doe. (See Decl. of Jane Doe, doc. no. 56-42, at 20.)”

In recent years, appeals courts filled with Trump-appointed justices have ruled against transgender equal protection and due process rights. One of the most prominent courts to do so is the 11th Circuit Court of Appeals, which has issued anti-LGBTQ+ rulings, including one upholding a ban on gender-affirming care and a recent decision against Title IX protections for LGBTQ+ students. These rulings, often aligned with similar decisions from the 6th Circuit Court, assert that transgender individuals do not have equal protection or due process rights concerning their gender identity.

In Friday’s ruling, the court determined that “Policy Order 63 does not violate the equal protection clause because it does not impose a sex-based classification. The Policy Order does not single out or disadvantage anyone because of their sex, or regulate based on stereotypes; rather, it imposes the same objective conditions on everyone.” The decision further claimed the policy was not gender-based but neutral, stating it applies equally to “all individuals wishing to have their sex designation changed from male to female, and individuals wishing to have their sex designation changed from female to male, are all covered by the same requirements.” This distinction is crucial because if the policy were determined to be gender-based, it could be subject to intermediate scrutiny, and transgender individuals would likely prevail in equal protection claims.

These arguments have a long history of being used against LGBTQ+ individuals. If they sound familiar, it’s because similar reasoning was once employed to deny gay people the right to marry. Opponents of marriage equality argued that anti-gay marriage laws did not discriminate against gay people, as they had the same right to marry someone of the opposite sex as straight people did.

See Singer v. Hara, 1974:

The state points out that all same-sex marriages are deemed illegal by the state, and therefore argues that there is no violation of the ERA so long as marriage licenses are denied equally to both male and female pairs.— Singer v. Hara, 1974

The court also engages in fearmongering about the potential consequences of allowing transgender individuals to change the gender markers on their driver's licenses. In one footnote, the court speculates that permitting such changes could lead to “on demand new genders to suit every new identity.”

See this footnote:

Notably, this has not been an issue in the 28 states that allow gender marker changes. Some states even offer an "X" gender marker to accommodate nonbinary individuals or those who prefer not to have a gender marker on their driver's license.

Ultimately, the court ruled that transgender individuals do not receive equal protection under the law because their gender identity does not trigger intermediate scrutiny—a legal standard that makes it easier to overturn discriminatory legislation. The decision uses reasoning similar to the Dobbs ruling that overturned abortion rights, including a reference to Geduldig, which allowed discrimination against pregnant people. The court also states that it does not recognize transgender individuals as a quasi-suspect class, leaving them vulnerable to discriminatory targeting. The ruling references the Ecknes-Tucker decision, which allowed gender-affirming care bans, ultimately denying transgender individuals equal protection rights related to their gender identity.

The court also addressed due process claims regarding mandatory sterilization. The plaintiffs argued that “when the treatment involves procreation or sterilization,” the state violated their right to refuse medical treatment by forcing them to undergo surgery in order to obtain a driver's license with the correct identification markers. The 11th Circuit sidestepped this argument by stating that “showing a license that conforms with their preferred sex identifier” is not a government benefit. The court snidely added, “access to an Alabama driver's license is not dependent on any surgical procedure.”

The decision means that transgender individuals in Alabama, Georgia, and Florida could face new attacks from state governments that have already imposed severe restrictions on transgender rights. For example, Florida recently suggested that any transgender person changing their driver's license could be targeted with accusations of “criminal fraud.” The only potential avenue to overturn these decisions lies with the Supreme Court, which is expected to rule on the equal protection status of transgender people later this year in cases concerning healthcare bans.

One Judge, Justice Jill Pryor, an Obama appointee, concurred with the ruling in a separate concurrence, stating that she was bound by the court’s earlier precedent, but lamenting over that precedent:

“In closing, I understand the profound impact that today’s decision will have on the lives of Corbitt, Clark, Doe, and other transgender people in Alabama. The decision means that Alabama can deny transgender people access to driver’s licenses with sex designations that match their gender identity if they have not undergone the expensive and invasive gender reassignment surgeries that Policy Order 63 requires. I understand that without the ability to change the sex designations on their licenses, transgender Alabamians will likely suffer abuse and even violence when their licenses reveal, in everyday transactions, that they are transgender. Because our precedent compels the conclusion that classifications targeting transgender individuals are subject to rational basis review, not intermediate scrutiny, however, I reluctantly and with grave misgivings concur in the majority opinion’s judgment.”