UPDATED: Arkansas lawmakers approve reversal of gender-neutral driver’s license policy

This story was updated at 10:55 a.m. Friday, March 15, 2024.

Arkansas lawmakers voted Friday to require driver’s licenses and state-issued IDs to reflect the gender listed on a person’s birth certificate.

The state Department of Finance and Administration on Tuesday rescinded a policy that had been in place since 2010 allowing driver’s license holders to change their gender marker with no questions asked or to use an “X” in place of “male” or “female.”

This policy was improper because it never received legislative review or approval, Finance and Administration Secretary Jim Hudson told the Arkansas Legislative Council’s executive subcommittee Thursday. He also said the policy change is necessary for law enforcement to “understand who they’re encountering” during a traffic stop.

“A driver’s license does not exist for the benefit of the license holder,” Hudson said. “It’s not a platform for speech. It’s not a platform for personal identity. It doesn’t exist for that purpose. It allows third parties, especially law enforcement officers, to look at the information and determine ‘Who is this person?’”

Hudson said Thursday that the updated policy seeks to “minimize the need for intrusive questions by state employees” and has been in the works since shortly after his appointment to lead the finance department in August.

Emergency rules enacted by the state limit the opportunity for public feedback before they go into effect. Several lawmakers asked Hudson on Thursday and Friday why an emergency rule was necessary in lieu of a permanent rule, which Hudson said will come later and receive public comment.

Hudson said the 516 Arkansans with the gender-neutral indicator on their driver’s licenses could be renewing those licenses at any time, including “as recently as yesterday,” meaning Wednesday, and state employees should be prepared. There are 3.2 million active licenses and IDs in Arkansas.

Sens. Clarke Tucker and Linda Chesterfield, both Little Rock Democrats, asked if any emergency or dangerous situation occurred regarding the gender-neutral indicator in the 14 years it was allowed on Arkansas driver’s licenses. Hudson said he was not aware of any and the new rule is meant to prevent threats to law enforcement officers’ safety.

During Friday’s Legislative Council meeting, Tucker made a motion to remove the emergency rule from the rest of the executive subcommittee’s report and vote on it separately. The motion failed on a voice vote, and the council then approved the report as a whole with some dissent, primarily from the council’s Democrats.

Executive order bans gender-neutral language in Arkansas government documents

Chesterfield asked Hudson how many officers have complained about the X indicator, and Hudson said most have not known about it.

“Whenever we’ve shared that information, we’ve been met with alarm [because] they were unaware that was the case,” he said.

Republican lawmakers made similar arguments last year while promoting anti-transgender legislation restricting pronoun usage and bathroom use in public schools based on students’ gender assigned at birth, citing the need to protect teachers’ religious views and children’s privacy, respectively.

Gov. Sarah Huckabee Sanders signed both bills into law. In October, she also signed an executive order that banned gender-neutral language in Arkansas government documents. The order specifically cited language related to pregnancy, birth and menstruation, claiming they are exclusive to women.

Sanders expressed support Tuesday for the Finance Department’s updated driver’s license policy, stating “there are only two genders” and “Arkansas state government will not endorse nonsense.”

The ​​transgender advocacy group Intransitive called the policy “a blatant act of discrimination.” Chesterfield indicated her agreement Friday.

“It seems to me that the end effect is cruelty, it’s unnecessary and it’s unworthy of us,” she said before voting in favor of Tucker’s motion.

In addition to Washington D.C., Arkansas has been one of 22 states that allows a “M,” “F” or “X” designation on a driver’s license.

Thursday’s committee discussion

Documents provided to the subcommittee cite the need to comply with state law as justification for using an emergency rule as a means of changing policy. The portion of state law in question lists the traits, including gender, that must be on Arkansans’ driver’s licenses or state-issued identification card.

Hudson said the statute means that driver’s licenses must denote “male” or “female” as someone’s gender. The statute does not include those terms.

Matching the gender marker on a driver’s license to that on the person’s birth certificate, unless the latter has been legally changed, could create more trouble than it prevents, said House Minority Leader Tippi McCullough, D-Little Rock.

“If a law enforcement officer is presented with documentation that is completely different from the way someone is presenting in real life, it seems like this is also very confusing,” she said.

Additionally, DMVs usually take people’s word for it when asking for many of the other listed physical traits, such as height, weight, hair color and eye color, Tucker said.

“I got my driver’s license renewed a month ago, and I don’t recall seeing a scale or a lie detector test there,” he said. “…If we want law enforcement to have accurate information — and I support that idea — why are we focused on just gender?”

Other traits might not be accurately reflected on a person’s driver’s license, but “it is easier to detect some of that than it is an individual who’s [changed] something as fundamental of a characteristic as gender,” Hudson said.

Tucker said he did not consider gender significantly different from the other characteristics listed on a driver’s license.

He and McCullough both mentioned that the federal government allows X as a gender marker on passports, which could create a conflict between someone’s identifying documents under the state’s new rule.

McCullough asked how the rule would require driver’s licenses to identify people who are intersex, meaning they were born with ambiguous sexual organs. Paul Gehring, the finance department’s assistant commissioner of revenue policy and legal, said these people usually have “male” or “female” written on their birth certificate and that would determine what their state-issued ID says.

Sen. Missy Irvin, R-Mountain View, said she believed the finance department’s 2010 decision to offer a third gender marker for driver’s licenses set a precedent for state agencies “going rogue and determining public policy without going through this legislative body and this legislative process.”

“If [the department] decided that X was acceptable, then why not Z, or why not A, or why not B?” Irvin said.