The day before Lupa Brandt was scheduled for breast augmentation surgery last summer, she treated herself to a manicure, her very first set of acrylic nails. The small, self-affirming gift celebrated something much bigger — the next step in her transition, and eventually, a Georgia state driver’s license and birth certificate that would reflect her correct gender.
Georgia is one of several states that require transgender people to show proof of gender-affirming surgery before they can update the gender markers on their driver’s licenses. Georgia’s Department of Driver Services allows for a gender marker change on a driver’s license after a person has undergone “a gender reassignment operation” and provided a letter from a physician certifying the change, according to department policy.
A court order or passport reflecting the change are also acceptable forms of documentation. Policies that require proof of surgery are harmful and discriminatory, critics say, leaving those who don’t want or can’t afford surgery vulnerable to gender dysphoria, harassment or violence for lacking identification that reflects their true selves. According to the landmark 2015 U.S. Transgender Survey conducted by the National Center for Transgender Equality, 68 percent of respondents reported that none of their personal identification documents reflected their preferred name and gender.
Brandt, 59, was scheduled for breast augmentation in July, a major step toward updating her identification. Her husband is also transgender, and she recalls seeing his confidence and mental health “bloom and grow” after he successfully changed his gender markers on his birth certificate and license, she says. The day of surgery, Brandt was at a hospital, waiting to get prepped, when she learned her coronavirus test results had been misplaced, she says. Her operation was postponed.
The following day, she was in a severe motorcycle accident.
Seven months later, Brandt says she is still recuperating from the injuries she sustained when she crashed at nearly 70 miles an hour: bleeding in her brain, a shattered elbow, broken ribs, and broken bones in her shoulder, foot and both hands, among other damage. Facing a large medical bill and lengthy recovery, she says breast augmentation now seems like a distant possibility.
“I still hope to have my surgery,” says Brandt, who does community outreach for TRANScending Barriers Atlanta, a nonprofit that serves transgender and gender-nonconforming individuals throughout Georgia. “It’s just a matter of when I heal up enough.”
Even if Brandt’s breast augmentation had moved forward as planned, there’s no absolute guarantee that her request for a gender marker change would have been approved. “In all cases,” Georgia’s Department of Driver Services policy states, “the decision to change the gender designation on the license is at the discretion of the Department.”
Destiny Clark has experienced barriers to changing her gender markers in her home state of Alabama. Clark has been taking hormones for over a decade and had breast augmentation surgery, but even after submitting a letter from her surgeon, her request to update her driver’s license was denied.
She is one of three transgender women involved in a lawsuit that the American Civil Liberties Union filed on their behalf against the secretary of the Alabama Law Enforcement Agency and other officials in 2018. Alabama’s policy for changing gender on driver’s licenses is “unlawful and discriminatory,” the lawsuit states, with officials accepting “only some forms of gender-confirming surgery, while rejecting others.”
On Jan. 15, a federal court agreed, ruling that the policy is unconstitutional. In his ruling, U.S. District Judge Myron H. Thompson noted the “serious risk of violence and hostility” transgender people face for showing a driver’s license that doesn’t match their gender presentation. Jane Doe, an unnamed plaintiff in the lawsuit, was almost killed by co-workers because she’s transgender, the judge wrote in his opinion, and later lost a job after showing her license, which designated her as male, to someone who outed her as transgender to her employer.
The Alabama Law Enforcement Agency has yet to update their policy, according to the ACLU, and the state has since filed an appeal. In the meantime, though, Clark and the other two plaintiffs in the case are allowed to move forward with changing their driver’s licenses. “I’m feeling very hopeful about the outcome,” Clark says. “However, it’s not over until the policy is changed for everyone in the state.”
A gender marker mismatch across personal documents such as driver’s licenses and birth certificates can delay access to health care and financial services, says Nora Huppert of Lambda Legal, an LGBTQ civil rights organization. Surgery requirements also fail to consider transgender people who postpone gender-affirming surgery to start a family, as certain procedures can carry a risk of infertility. Other barriers, like trans health-care exclusions, limit insurance coverage for transition-related care.
Personal identification documents that don’t reflect an individual’s correct gender identity can “cause all sorts of problems from just sort of a paperwork perspective,” Huppert says. “A major one that we constantly hear about is that it forces trans people to out ourselves all the time, which can be at best socially frustrating, and especially for trans women … at worst, deeply dangerous.” (The Human Rights Campaign marked 2020 the deadliest year for transgender and gender-nonconforming people on record since it began tracking this data in 2013, with more than 40 killings. Most victims were Black and Latinx transgender women.)
Transgender existence isn’t validated by surgery or any one path to transitioning, adds Sydney Duncan, an attorney with Birmingham AIDS Outreach, and the decision to have gender-affirming surgery at all is a deeply personal one. Policies that require proof of gender-affirming surgery are often broadly written, she says, but can be narrowly interpreted in favor of procedures that modify the genitals, like vaginoplasty or phalloplasty.
“A name change and driver’s license gender marker are the two things that are the big trophies for transgender people to get,” Duncan says. “We want those two things to represent ourselves. When they don’t, we’re constantly having to come out and constantly having to explain our existence.”