License & (Gender) Registration, Please: A First Amendment Argument Against Compelled Driver’s License Gender Markers

April 1, 2023

For as long as the United States has issued drivers’ licenses, licenses have indicated the holder’s gender in one form or another.  Because drivers’ licenses are issued at the state level, states retain the authority to regulate the procedures for amending them.  In some states, regulations include requirements that a transgender person undergo gender confirmation surgery before they can amend the gender marker on their driver’s license.  Because many transgender people neither desire nor can afford gender confirmation surgery, these laws effectively preclude such people from obtaining gender-accurate identification.  In doing so, these laws implicate multiple constitutional rights.

Lower courts evaluating surgical prerequisites to gender marker alteration have overturned such policies, holding that they violate the Fourteenth Amendment’s Equal Protection or Due Process Clauses.  This Note discusses the lower courts’ approaches to analyzing gender-marker alteration surgical requirements, it demonstrates these frameworks’ vulnerabilities for evaluating such policies and, moreover, it argues that they overlook these policies’ speech implications.  This Note then suggests that courts should evaluate gender marker alteration policies under First Amendment jurisprudence—specifically the compelled speech doctrine—and should apply strict scrutiny to determine their constitutionality.  Ultimately, this Note concludes that surgical requirements for gender marker alteration and resultant inaccurate gender markers on drivers’ licenses violate the right to be free of compelled speech and, therefore, are unconstitutional.

April 2023

No. 5