LITTLE ROCK, Ark. — On Tuesday, the American Civil Liberties Union (ACLU) of Arkansas filed a lawsuit against the Arkansas Department of Finance and Administration (DFA), fighting against a rule that restricts the ability of transgender and nonbinary Arkansans to self-identify their gender on driver's licenses.
ACLU filed the complaint on behalf of five people, which argues that the emergency rule was implemented "without any documented justification or compliance" under the Arkansas Administrative Procedure Act. According to the organization, there should've been a 30-day public notice and comment period.
"The law requires agencies to listen to the people affected by their rule," ACLU of Arkansas Legal Director John Williams said. "Agencies cannot fabricate emergencies to evade that responsibility. Having failed to seek public input as required by law, DFA will now hear from us in court."
Arkansas officials announced on March 12 a revision to a state policy that previously allowed a person to use an "X" marker instead of a gender on their license or ID card. The new policy will only allow someone to choose "male" or "female" on their identification.
The Arkansas Department of Finance and Administration said the revised policy is intended to "better safeguard the integrity of licenses and IDs issued." The original policy, which was in effect since 2010, would allow a licensee to change the gender on their licenses, "no questions asked, no documentation required."
The reversal of this policy reportedly "restores DFA's long-standing policy" that license and ID holders must display either male or female, according to a press release. DFA Secretary Jim Hudson said the change is to "ensure" any license issued by the state is "based on objective, verifiable information."
Williams and the ACLU said the change goes against the Arkansas Administrative Procedure Act because there was no "imminent peril to public health, safety, or welfare."
"The DFA has failed to demonstrate any urgent threat to public health or safety that justifies this sudden and restrictive change in policy," Williams said. "Instead, their actions have created a real and immediate danger to the wellbeing of our plaintiffs and other transgender, nonbinary, and intersex people, for whom accurate identification is not just a matter of dignity, but of person security."
The complaint states that on March 15, 2024, the DFA abruptly and unjustly altered the policy, imposing an emergency rule requiring an amended birth certificate for any gender-marker changes on driver’s licenses and ultimately abolishing the “X” marker option.
ACLU said the sudden policy shift had left many Arkansans without a driver's license that accurately reflects their gender identity, which can lead to "significant psychological distress and expose them to discrimination, harassment and violence.
“There is no ‘imminent peril’ created by recognizing and respecting a person’s affirmed gender identity, yet the DFA’s emergency rule has precipitated a true crisis for affected Arkansans,” ACLU of Arkansas Executive Director Holly Dickson said. “This rule is not safeguarding Arkansans; it's compromising their safety, their mental health, and their ability to participate fully in society."
With the lawsuit, the ACLU of Arkansas is seeking a preliminary and permanent injunction to halt the rule's enforcement and require the DFA to revert to the prior inclusive policy.