11th Circuit upholds Alabama rule requiring surgery for driver’s license change

In a closely watched decision, the U.S. Court of Appeals for the Eleventh Circuit overturned a lower court ruling that had declared Alabama’s Policy Order 63 unconstitutional. The policy requires transgender individuals to undergo gender reassignment surgery before they can change the sex designation on their driver’s licenses. The case, Darcy Corbitt, Destiny Clark, Jane Doe v. Secretary of the Alabama Law Enforcement Agency, has reignited debate over the legal rights of transgender individuals in the state.

The plaintiffs, all transgender residents of Alabama, argued that Policy Order 63 violated their constitutional rights by forcing them to undergo surgery as a condition to amend their legal sex designation. The district court had sided with the plaintiffs, ruling that the policy constituted a sex-based classification, thus subject to heightened constitutional scrutiny under the Equal Protection Clause of the Fourteenth Amendment. The court also found the policy infringed upon due process and free speech rights.

However, in a decision handed down on September 20, the Eleventh Circuit reversed this judgment. Writing for the panel, Judge Elizabeth Branch emphasized that Policy Order 63 does not single out or disadvantage individuals based on sex. Instead, the policy applies uniformly to all individuals seeking a change in their sex designation on state-issued documents. “Policy Order 63 imposes the same objective conditions on everyone,” Judge Branch wrote, further stating that the policy “rationally advances Alabama’s legitimate interest in providing a consistent set of requirements to amend the sex listed on state documents like driver’s licenses and birth certificates.”

This case echoes the broader legal conflict over transgender rights and state identification documents. Similar cases have emerged across the country, notably in Kansas, Tennessee, and Florida, where states have enacted laws or policies restricting the ability of transgender individuals to change the gender marker on their identification. Kansas, for example, passed SB 180 in 2023, requiring all birth certificates to identify a person’s sex as that assigned at birth. Alabama’s Policy Order 63 is part of this national pattern, positioning the state at the forefront of the legal battles surrounding gender identity and state documentation.

Judge Branch’s opinion drew heavily on the Eleventh Circuit’s 2023 decision in Eknes-Tucker v. Governor of Alabama, which applied a rational basis review in determining that Alabama’s policy on transgender healthcare did not violate the Equal Protection Clause. In this case, the court similarly determined that rational basis review applied to Policy Order 63, dismissing the plaintiffs’ argument that heightened scrutiny should be used. “Rational basis review—the most deferential standard under the Equal Protection Clause—applies. Policy Order 63 survives that review because it rationally advances Alabama’s legitimate interest,” the opinion stated.

The court also rejected the plaintiffs’ claims that the policy violated their rights to privacy and free speech. Judge Branch wrote that the policy “does not compel Plaintiffs to speak the government’s message about their sex or gender identity,” emphasizing that driver’s licenses are considered government speech, not private speech. Moreover, the court found no violation of the plaintiffs’ due process rights, noting that the policy does not infringe upon their right to refuse medical care. “Policy Order 63 neither violates Plaintiffs’ right to informational privacy nor infringes their right to refuse medical care like sex-change surgery,” the ruling read.

The plaintiffs had argued that the policy forced them to make an untenable choice between undergoing invasive surgery or continuing to carry identification that did not reflect their gender identity. They also claimed that the policy perpetuated harmful stereotypes about transgender individuals. While the district court initially agreed, the Eleventh Circuit disagreed, stating that the policy was neutral in its application and consistent with Alabama’s longstanding approach to maintaining vital records.

This ruling continues Alabama’s legal trend of enforcing strict requirements for amending identification documents, even as other states move toward more inclusive policies. The decision may not be the end of the legal road, as advocates for transgender rights could appeal the case to the Supreme Court.

This case follows a historical pattern of litigation over transgender rights. In 2018, a similar case, F.V. v. Barron, challenged Idaho’s refusal to allow changes to the gender marker on birth certificates. That case ultimately led to a federal court striking down Idaho’s policy as unconstitutional, a stark contrast to the Eleventh Circuit’s recent ruling in favor of Alabama’s restrictive policy.

The Eleventh Circuit’s decision highlights the ongoing clash between state policies and transgender rights advocates. As legal battles over gender identity continue to surface across the country, Alabama remains a focal point in the national discussion.