Jennifer Chambers

The Detroit News

After being sued by six transgender Michigan residents, Secretary of State Ruth Johnson has changed her department’s policy on requiring an amended birth certificate to change an individual’s gender on a state driver’s license or state ID.

The new policy allows U.S. passports or passport cards to be used to change gender on IDs and means a transgender individual would no longer be required to undergo gender confirmation surgery, according to the Michigan Attorney General’s Office, which represents Johnson in the case.

Johnson changed her own policy on March 10, according to court records, amending it to require a valid U.S. passport or passport card, a court order changing the sex of the individual or a certified birth certificate for any applicant who wants to change his or her gender on state ID.

Johnson’s office declined to explain the decision behind the change in policy. Johnson also has declined comment.

Prior to the change, the Secretary of State’s Office required an amended birth certificate to change gender. An amended birth certificate is only obtainable to people in Michigan by undergoing gender confirmation surgery, said attorney Jay Kaplan with the American Civil Liberties Union, which is representing all six plaintiffs in the case.

Kaplan said the recent policy change is a positive step forward that will allow more transgender people to obtain accurate ID — but it’s not enough.

“It’s still not a model policy. It’s still not a policy that other states have adopted to make sure transgender individuals can obtain ID. We are continuing with our lawsuit,” Kaplan said.

The federal government does not require surgery to change gender on a U.S. passport or on Social Security records. But not everyone can afford or needs a passport, Kaplan said.

As far as allowing court orders, Kaplan said Michigan courts have not made rulings on the issue and there is no case law to examine.

“Michigan courts have never taken jurisdiction in adjudicating gender nor do we think its a good idea. How does a court decide what gender is? Courts have not done that in Michigan,” Kaplan said.

State laws vary in terms of whether and how individuals can amend the gender on their birth certificates, ACLU officials said.

Some states refuse to amend it without a court order; some states refuse to change the gender on a birth certificate unless an individual has undergone gender confirmation surgery; some states allow the change without requiring either surgery or a court order and some states do not allow the gender on a birth certificate to be corrected under any circumstances.

The federal government does not require surgery to change gender on a U.S. passport or on Social Security records. But not everyone can afford or needs a passport, Kaplan said.

As far as allowing court orders, Kaplan said Michigan courts have not made rulings on the issue and there is no case law to examine.

“Michigan courts have never taken jurisdiction in adjudicating gender nor do we think its a good idea. How does a court decide what gender is? Courts have not done that in Michigan,” Kaplan said.

Several of the plaintiffs suing Johnson said they do not want to have surgery to change their gender or cannot afford it. In their lawsuit, filed in May 2015, they alleged the policy violated their Constitutional rights including their rights to privacy, freedom of speech and equal protection.

Johnson’s attorneys are asking for the case to be dismissed, saying there is “no reasonable likelihood that she will return to the previous policy” and the policy change was implemented “in the ordinary course of business.”

“Defendant Ruth Johnson has remedied any alleged constitutional violation by voluntarily abandoning the requirement to provide a certified birth certificate as proof to change to an individual’s sex designation on his or her DL or PID,” the motion filed by the Attorney General’s Office states.

The Michigan Attorney General’s Office previously denied the original policy violated due process, First Amendment or privacy rights and refused to change it. The state has argued in court filings the policy helped promote effective law enforcement and ensured that individuals’ state records were consistent.

Under former Michigan Secretary of State Terri Lynn Land, surgery was still a requirement but a statement by a physician was sufficient. Johnson changed it to an amended birth certificate in 2011. It is not clear why.

John Knight, from the ACLU’s national LGBT project, said that 3 percent of transgender people face assault or physical injury when showing a license with the wrong gender on it and 40 percent face hostility, including being asked to leave the premises of businesses.

The case is before U.S. District Judge Nancy Edmunds. Johnson is scheduled for deposition in the case on Thursday.

JChambers@detroitnews.com