Last month, Texas became the largest state to block transgender people from updating the sex listed on their driver鈥檚 licenses and birth certificates.
The , which was not announced in public, . State officials released some basic information about the decision. But many questions remain unanswered.
The Texas Newsroom filed records requests and interviewed state officials, LGBTQ advocates and legal experts to better understand the potential effects of the new policy.
The change should not hamper the ability of transgender Texans to vote, according to local and state election officials. But it鈥檚 still unclear whether they will encounter new problems opening a bank account, updating their health insurance or dealing with other everyday tasks that require an ID. The legality of the policy has also been thrown into question. As of now, however, the change remains in effect unless and until a lawsuit is filed.
Meanwhile, many transgender Texans are caught in legal limbo. In interviews, they said it feels as though the state is creating a list to keep track of them 鈥� but to what end?
The Texas Newsroom spoke with one transgender woman who asked to update her birth certificate before the policy change went public. She thought the timing might mean that she鈥檇 get her request fulfilled under the wire. Her hope grew last week, when she got an overnight package from the Texas Department of State Health Services.
鈥淚 was like, this is mine. This is going to be my birth certificate,鈥� said the Austin resident, who did not want to be named because she fears being ostracized and for her safety. 鈥淓verything is going to be right with the world.鈥�
Her excitement turned to disappointment when she read the letter inside. It said her request was denied. The agency cited concerns about 鈥渢he validity of court orders鈥� to change state-issued IDs.
For years, transgender Texans have been able to update the sex listed on their driver鈥檚 licenses and birth certificates to match their gender identity, as long as they have a court order from a judge. This policy change, mimicking similar steps in other conservative states, comes as Republican officials here have increasingly restricted the rights of transgender Texans.
鈥淚 definitely shed a few tears and then I ended up laughing because it鈥檚 鈥� it鈥檚 so ridiculous,鈥� she said.
鈥淚 can鈥檛 keep waiting for fear of them coming to knock on the door and round me up,鈥� she added. 鈥淚鈥檓 done not living my life.鈥�
State tells agency employees to 鈥榖e empathetic鈥�
The Texas Newsroom filed a public records request with the Department of Public Safety for internal agency emails discussing the new driver鈥檚 license rules.
The agency provided 66 pages of records that shed some new light on the policy change. Among the documents were instructions for how employees should handle these cases. The agency said employees must:
- Maintain professionalism, be empathetic and focus on facts when assisting customers;
- Explain to the customer that the agency is reviewing its processes to ensure that all state and federal requirements are met;
- Apologize for any inconvenience and 鈥渄e-escalate using our customer service skills鈥� if a customer is 鈥渋rate;鈥�
- Tell a supervisor if a situation with a customer escalates;
- Defer to the customer鈥檚 original birth certificate if the sex listed there was changed;
- Do not answer questions from the media.
The Texas Newsroom also sent questions to DPS and the Department of State Health Services, or DSHS, which is implementing the change to the birth certificate policy.
DSHS spokesperson Chris Van Deusen said no updates to the policy have been made since the changes took effect on Aug. 30. DPS has not responded.
Both agencies pointed to questions about the legality of court order to change the sex listed on identification documents as having triggered the policy changes. DPS said Texas Attorney General Ken Paxton, a vocal opponent of LGBTQ rights, was behind the questions.
The Texas Newsroom reached out to Paxton鈥檚 office for more information but has not heard back. A records request for communications exchanged between Paxton and his top advisers did not yield any additional information about the changes.
Meanwhile, the policy continues to be reviewed by all three agencies.
The records DPS released also show the policy change triggered some backlash inside the agency. An employee who said they identify as transgender blasted the policy in an email to the driver鈥檚 license division chief, and described feeling 鈥渁bsolutely disgusted.鈥�
鈥淚 thought this was a division about integrity and diversity,鈥� the person wrote, calling out the decision to collect the names of people who request to change the sex on their licenses.
鈥淭here is no justification for that. You are playing with people鈥檚 lives,鈥� the employee wrote. 鈥淒o you know how many people could die if the wrong group of people somehow get a hold of that list?鈥�
The Texas Newsroom is not naming the employee because they did not respond to questions about their internal emails.
Could voters be turned away?
The Texas Newsroom talked to election officials about how the new policy could affect voters.
The state has a field to mark male or female.
But Alicia Pierce, a spokesperson for the Texas Secretary of State鈥檚 Office, said she doesn鈥檛 anticipate any problems with voting because a poll worker is not required to check to see if the sex on a voter鈥檚 registration matches their ID.
鈥淲e don鈥檛 anticipate any changes at the polls,鈥� she told The Texas Newsroom.
Chris Davis, voter registration division director for Travis County, agreed.
鈥淚t鈥檚 not required whatsoever for an individual to successfully register to vote,鈥� he said.
What might complicate things is the voter鈥檚 name. The poll worker has to make sure and registration are 鈥渟ubstantially similar.鈥� If the name has been updated on one or the other document, it鈥檚 important for a voter to make sure they match.
Ian Pittman, an Austin attorney who represents LGBTQ clients, worries the state will accuse transgender Texans of voter fraud if they encounter problems at the polls because of mismatched documents.
鈥淚t's creating more problems that didn't exist,鈥� he said.
Ultimately, the experience someone has when presenting a driver license or birth certificate for service could come down to how the person on the other end of the transaction interprets the policy change, especially if there isn鈥檛 clear guidance.
What other services might be affected?
Pittman is concerned transgender people could run into problems when they try to open a bank account or apply for a mortgage because of the federal regulations that require financial institutions to verify the identity of their clients. He said these 鈥淜now Your Customer鈥� rules may inadvertently hamper transgender customers who have conflicting identity documents.
鈥淚t's done to prevent terrorism and illegal, you know, money laundering and things like that,鈥� Pittman said. 鈥淚t's not done to keep people with gender dysphoria from getting access to the banking system.鈥�
He also wonders if a transgender person will be treated fairly when they try to rent an apartment or apply for housing assistance because an applicant has to include their sex on forms.
There are also questions about whether the license and birth certificate changes will affect transgender people's ability to update other identity documents, like car registration or health insurance, said Landon Richie, policy coordinator for the Transgender Education Network of Texas.
鈥淎ny sort of bureaucratic or state reason that you might need proof of identity is now a concern for a lot of trans people,鈥� Richie said.
The Texas Newsroom will continue to follow the developments of this policy change and its impact on these various services for the transgender community.
Is the new policy for transgender Texans legal?
At the beginning of 2023, no states restricted transgender people from updating the sex on their driver鈥檚 license, according to Dana Juniel with the Movement Advancement Project. Today, one in six transgender people live in a state that does.
And in 2021, only one state banned birth certificate changes. Today, seven states have such bans.
鈥淭hese dramatic shifts come amid a much larger and coordinated attack on virtually every aspect of LGBTQ, and especially transgender people鈥檚 lives,鈥� Juniel said. 鈥淎ccurate IDs are incredibly important for lowering transgender people鈥檚 risk of harm, harassment, and even violence.鈥�
ACLU of Texas attorney Brian Klosterboer said he believes what the state is doing is illegal and unconstitutional.
He called it alarming that a state agency will now disregard court orders and wondered how far this policy could veer into other legal decisions.
鈥淎n agency does not have the power to ignore a court order,鈥� he said. 鈥淚t also creates a big separation of powers issue. The courts are the ones who get to decide 鈥� interpret the law and agencies 鈥� as part of the executive branch 鈥� have to follow that.鈥�
Klosterboer also thinks the policy is discriminatory. People change their state-issued documents for all kinds of reasons but these new changes solely target transgender Texans.
Pittman said he also thinks state rules are also being violated. The Administrative Procedures Act requires an agency to post a public notice and give the public a chance to comment if it鈥檚 considering changing a policy.
鈥淚 think this was done without any publicity and any fanfare on purpose,鈥� he said.
Klosterboer said the ACLU of Texas, which has sued to block other anti-LGBTQ policies and laws, is still exploring their legal options.
鈥淕enerally, if someone violates a court order, that person or even an agency can be held in contempt of court,鈥� Klosterboer said.
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