NWLC Leads Gender Justice Brief in Support of Transgender People in Alabama

Today, the National Women’s Law Center, along with our law firm partner Allen & Overy LLP and 32 additional organizations, filed an amicus brief to the U.S. Court of Appeals for the Eleventh Circuit, challenging Alabama’s policy of denying transgender people driver’s licenses with accurate gender markers unless they undergo surgery and provide proof of such to the State. Our amicus brief argues that Alabama’s policy puts transgender people at heightened risk of discrimination and violence and violates protections against sex discrimination under the Constitution. The plaintiffs are represented by the American Civil Liberties Union (ACLU) and the Transgender Legal Defense & Education Fund (TLDEF).

In 2018, three transgender women—Darcy Corbitt, Destiny Clark, and Jane Doe—filed a lawsuit challenging Alabama’s policy after being denied accurate driver’s licenses and suffering harassment and discrimination as a result. The plaintiffs brought claims under the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment, and the First Amendment of the Constitution. As their lawsuit details, Alabama’s surgery requirement discriminates based on sex and is unjustified by any legitimate governmental interest.

The lower court correctly found that Alabama’s policy was unconstitutional sex discrimination because the policy is a sex-based classification that is focused on sex-based characteristics and is not justified by any of the State’s purported reasons for the policy. Alabama then appealed the decision to the Eleventh Circuit Court of Appeals. Our amicus brief urges the Eleventh Circuit to affirm the district court’s decision because the policy discriminates against transgender Alabamians on the basis of sex and transgender status, in violation of the equal protection guarantee of the Constitution.

We explain that the standard of review the lower court applied to the policy was correct and consistent with decades of Supreme Court precedent, and that the court properly found that the State’s justifications for the policy were insufficient to meet that standard. We urge the Eleventh Circuit to affirm the district court’s ruling that Alabama’s driver’s license policy is unconstitutional.
Requiring all transgender people to have a particular kind of gender-affirming surgery before they can update their license is harmful and inconsistent with best practice care. Not all transgender people need or want surgery of any kind—and even those who do want it may not have access because it is costly, and still frequently not covered by insurance. There are also multiple forms of gender-confirming surgeries, but Alabama requires genital surgery, which many people do not need or have access to.  While gender-affirming medical care may be important for many transgender people, requiring such proof as a condition of accessing a license that they can safely use is unjustified and wrong.

Our brief also highlights the serious harms at stake, particularly for Black and brown trans women, and illustrates how not having an ID that matches the gender one lives as every day creates multiple harms in people’s lives. Carrying a license with an inaccurate gender marker puts transgender people at a heightened risk of discrimination, harassment, and attack from many, including from police and at places of employment. Black transgender women in particular face disproportionate risk of violence, including fatal violence, that are exacerbated by Alabama’s policy.

In its appeal, Alabama conflates the issues present in this case with classifications related to affirmative action and incorrectly implies that the district court’s decision calls into question the entire basis for race-based affirmative action and other remedial programs. As such, our brief distinguishes between discriminatory classifications like Alabama’s, which serve no important governmental purpose, and classifications tied to remedial programs, like affirmative action, that are already subject to heightened scrutiny, and which serve the vital governmental interest of addressing historical discrimination.

NWLC files this amicus brief in solidarity with the residents of Alabama who brought this case, and with and all transgender people who are rising up against these intensified threats to safety and civil rights.