A recent discreet policy change has stripped transgender Texans of their ability to legally change the sex listed on their birth certificates.
Before last Friday, Texans could correct their sex by submitting a certified copy of a court order, an archived version of the Department of State Health Services’ vital statistics webpage shows, as first reported by KXAN Austin. However, now Texans can only change their sex if the hospital has made a clerical error or omission.
The decision, which was not publicly announced, was made after Texas Attorney General Ken Paxton questioned the validity of court orders allowing changes to sex on state-issued documents, according to Chris Van Deusen, spokesperson for DSHS.
“DSHS is seeking assistance from the Office of Attorney General to determine the applicability of these concerns to amendments to vital records,” said Van Deusen in a prepared statement.
Van Deusen also confirmed that pending applications submitted before the change will not be processed and that applicants can get a refund for the $15 fee.
“We’re contacting folks in that situation,” he said via email.
The move comes roughly over a week after the Department of Public Safety implemented similar measures, no longer accepting court orders that change the sex of an individual, issue a name change or a gender marker change for a driver’s license or state identification card as of Aug. 20.
Advocacy organizations from the ACLU Texas, to the Transgender Education Network of Texas, Equality Texas, among several others, are condemning state officials for what they say is a history of targeted attacks and discrimination on the transgender population.
“It’s dangerous and cruel for state officials to quietly ban trans Texans from having accurate government documents that are integral to our daily lives,” ACLU Texas wrote on an Instagram post Tuesday.
Ash Hall, a policy and advocacy strategist with the ACLU Texas, thinks there could potentially be more changes coming.
“I don’t think it’s going to be the last we’ll see in Texas agencies because these two have happened so close together,” they said. “I think Attorney General Ken Paxton is probably going to look for every possible option to change the gender marker and the various services provided by Texas agencies and will try to get rid of those options.”
Paxton’s office did not return multiple requests for comment on the reason for these policy changes in time for publication.
Research, however, shows that 71 percent of Texans support LGBTQ+ nondiscrimination laws, according to the Public Religion Research Institute.
The policy change not only affects crucial everyday tasks like opening a bank account or getting a loan, but it could also pose a public safety risk, particularly for Black and Brown trans people when dealing with the police, said Johnathan Gooch with LGBTQ+ advocacy rights organization Equality Texas.
“If a driver’s license doesn’t match (their) gender, that can be alarming,” Gooch said. “If a cop isn’t trained well or doesn’t understand transgender identity that could cause a further stressful situation. Who knows how that would go down.”
With the rise of violence and attacks against trans people in recent years, Gooch said having mismatched identity documents outs trans people whenever they have to show ID and could make them more susceptible to discrimination.
“What should be a simple administrative task to update someone’s documents has become a nightmare,” he said. “It’s alarming to say the very least.”
The most “alarming” part, Gooch said, is that these updates are being done quietly without any opportunity for public input.
“We don’t even understand how much has been impacted by whatever the Attorney General is doing behind the scenes, which, again, is alarming to think that the attorney general has so much influence over state agencies that he can persuade them to ignore court orders from state judges,” Gooch said.
‘Every Texan should be concerned’
The policy changes by both DSHS and DPS could impact roughly 93,000 trans adults living in Texas, according to the Williams Institute at the UCLA School of Law.
Just days before DSHS’s policy change, Equality Texas hosted a webinar last Wednesday following DPS’ policy change with policy experts, lawyers and community advocates on hand to answer any questions.
Since the change was implemented, there has been a widespread sense of fear, outrage and overall concern, Gooch said, especially from those who are considering changing their documents or currently in the process of doing so.
The fear, he said, partially stems from the surveillance of state leaders on trans Texans. Two years ago, Paxton’s office requested the Texas Department of Public Safety to provide a list of people who had changed their gender on their Texas driver’s licenses and other department records, according to the Texas Tribune.
Although these policy changes currently only target the trans population, Shelly Skeen, regional director at Lambda Legal, a human rights organization, said that it’s something that should trouble all Texans.
“Every Texan should be concerned if the staff is creating a special repository and keeping information about any subset of our population,” she said.
Advocates say some also fear the impact these policy changes will have on voting.
“People are concerned about, what if they have the wrong gender marker on their ID when that shouldn’t matter?” Gooch said. “The election official should only look at their name, but it still creates a bit of fear in people who might have misaligned identity documents.”
Advocacy organizations like Equality Texas and the Transgender Education Network of Texas advise the community to use federal forms of identification, such as passports or passport cards, for things like voting.
Gooch said people shouldn’t panic, but emphasized the severity of the issue and its toll on one’s mental well-being.
“It’s a pressure cooker,” Gooch said. “The more there are anti-trans messages, anti-trans attacks in public spaces, the more difficult and the more stressful it is to be a trans person and to be out in the world. And that’s the exact opposite of the responsibility of our lawmakers. Our lawmakers should be making life safer for all Texans.”
What’s next?
ACLU Texas and Lambda Legal are gathering information before deciding if they’ll take legal action against the policy changes.
“As it stands right now, I don’t think it has legal legs to stand on,” Hall said.
Lambda Legal has seen success challenging similar cases in other areas that have come before Texas like Kansas, Idaho, Ohio and Puerto Rico so far, but right now, it’s focused on assessing the impact these changes will have on people, Skeen said.
“What’s been found on the basis of sex is that you have to show what’s called a ‘sufficiently important reason’ that’s substantially related to the policy, and that that reason is exceedingly persuasive,” she said. “So, if the government is going to do something different and not treat people the same, then they need to have an important reason substantially related to the justification. … and it can’t be a made up reason after the fact.”
In the cases they’ve won, the court has determined that the reasons have not met that standard, she said.
But she acknowledged that the policy changes at both DPS and DSHS are “out of the norm” given both agencies’ longtime practice of changing things like names, gender and sex, and the government’s checks and balances system.
“From a practical standpoint, it doesn’t make any sense,” Skeen said.
“These are court orders issued by courts. The executive branch, which is where the AG is, can’t tell the court (judicial branch) what to do or what not to do.”
Another host of advocacy organizations, like Equality Texas and TENT, are developing strategies to ensure that anti-LGBTQ+ bills are not passed into law in the upcoming legislative session.
Last legislative session,141 anti-LGBTQ+ and anti-trans bills were filed, seven of which became law, according to Equality Texas’ 2023 legislative bill tracker.
Gooch is confident that the same can happen this upcoming legislative session if they get people engaged and apply pressure on lawmakers.
“We will continue the legacy of our trans ancestors by fighting back, creating spaces for joy, and living our lives to the best of our abilities,” TENT wrote in an Instagram post. “Our transness is not determined by a piece of paper and cannot be taken away by hateful policies. We will overcome transphobic bigotry.”
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