Case: Corbitt v. Taylor

On February 6, 2018, three transgender individuals brought an action against the Alabama Law Enforcement Agency, the Alabama Department of Public Safety, the Alabama Driver License Division, and administrative officials in their official and individual capacities in the United States District Court for the Middle District of Alabama. The plaintiffs, represented by the ACLU of Alabama and the ACLU LGBT & HIV Project, sued under 42 U.S.C § 1983, alleging violations of their First and Fourteenth Amendment rights. The complaint sought declaratory and injunctive relief. Specifically, the plaintiffs sought a judgment declaring the defendants’ practice of refusing to update the gender marker on driver licenses of transgender individuals unconstitutional, a permanent injunction preventing the defendants from enforcing the driver license policy, and an order for defendants to change the gender marker for otherwise-eligible transgender people who sought the change.

The complaint alleged that the defendants’ Policy 63 provided for changing the gender on a driver license only due to “gender reassignment surgery” and after submission of an amended birth certificate or letter from the physician who performed the surgery. “Gender reassignment surgery” was not defined, nor did defendants provide guidance on how to apply the policy. The complaint further alleged that Policy 63 was unsupported by any Alabama state statute or federal policy and medical recommendations.

According to the complaint, all three plaintiffs had been unable to get Alabama driver licenses listing their correct gender. Because of this, they experienced anxiety in their daily lives and heightened gender dysphoria, and were unable to do things such as travel, order a drink at a restaurant, or go to a bar because showing their driver licenses revealed that they were transgender, which increased risks of violence and discrimination against the plaintiffs. For example, one of the plaintiffs alleged that, after showing her driver license listing the incorrect gender to a bank teller, she was told by the teller that she was “going to hell” and was refused service.

The complaint further alleged that when one plaintiff refused to verify that the information on her driver license was accurate because the gender was incorrect, the clerk started referring to her as a “he” and an “it,” loudly and in front of other DMV patrons. Another plaintiff’s detailed medical information relating to her medically necessary gender-confirming surgery was given to one of the defendants, and the plaintiff’s request to change her gender on her license was still refused, with no reason given.

The case was assigned to Judge Myron H. Thompson and later referred to Magistrate Judge Stephen M. Doyle.

On February 8, 2019, the parties filed cross motions for summary judgment. On July 30, 2019, the court heard oral arguments on the motions then denied both parties’ motions for summary judgment without issuing a written opinion. Having denied the cross motions for summary judgment, on September 3, 2020, the court ordered supplemental briefing that responded to the question of whether to decide the case on the paper record or to hold a trial as to some or all of the issues.

In their supplemental brief, the plaintiffs argued that the U.S. Supreme Court’s decision in Bostock v. Clayton County further supported their Equal Protection claim; specifically, Policy 63 defined sex based on sex at birth, which punished transgender Alabamans and discriminated against them in favor of cisgender Alabamans, contrary to the holding in Bostock. The plaintiffs also argued that a hearing on the state’s justification for Policy 63 was unnecessary because such justifications were invented post hoc and could not withstand heightened scrutiny, and because Policy 63 was inconsistent with the process for amending sex designation on an Alabama birth certificate, demonstrating a lack of important government interest. In the defendants’ supplemental brief, they argued that Bostock was inapplicable to the case at hand because Policy 63 was a group classification that did not treat transgender people worse than cisgender people, while the holding in Bostock applied to the worse treatment of an individual (termination of employment) because of the individual’s transgender identity. If the plaintiffs had provided documentation of “gender reassignment surgery,” they would have been able to change the gender on their driver licenses.

On September 28, 2020, the plaintiffs filed a motion for an expedited decision. After a conference call on the motion, the court granted it on October 23, 2020.

On January 15, 2021, the court ruled in favor of the plaintiffs. The court held that Policy 63 was unconstitutional because it made it possible for someone to change the sex on their driver license only by surgically modifying their genitalia. By making the information on a driver license depend on a person’s genitalia, the policy classified by sex and was therefore subject to intermediate scrutiny. The court found that the defendants did not provide an adequate justification, and the policy was not adequately tailored to advancing the government’s interests; thus, Policy 63 failed intermediate scrutiny. The court then enjoined enforcement of Policy 63.

The defendants appealed on February 17, 2021 to the United States Court of Appeals for the Eleventh Circuit. In their appellate brief, the defendant-appellants argued that the district court erred by (i) holding that sex-based classification was enough to merit intermediate scrutiny, (ii) declining to determine whether the policy had treated the plaintiffs unequally, (iii) misconstruing the state’s justifications for its policy, and (iv) holding that objectively defining sex on a driver license violates the Constitution. 2021 WL 2189713.

As of April 4, 2023, the appeal was pending in the Eleventh Circuit.