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Politifact FL: What Florida’s driver’s license policy change means for transgender people

A Florida Highway Safety and Motor Vehicles drivers license service center is shown, Tuesday, Oct. 8, 2019, in Hialeah, Fla. The U.S. Census Bureau has asked the 50 states for drivers' license information, months after President Donald Trump ordered the collection of citizenship information.
Wilfredo Lee
A Florida Highway Safety and Motor Vehicles drivers license service center is shown, Tuesday, Oct. 8, 2019, in Hialeah, Fla. The U.S. Census Bureau has asked the 50 states for drivers' license information, months after President Donald Trump ordered the collection of citizenship information.

WLRN has partnered with PolitiFact to fact-check Florida politicians. The Pulitzer Prize-winning team seeks to present the true facts, unaffected by agenda or biases.

No one likes going to the DMV, but what drove LGBTQ+ activists in Florida to stage a "die-in" at the traditionally mundane administrative buildings on Feb. 9?

Answer: a memo, shared online Jan. 29, from the Florida Department of Highway Safety and Motor Vehicles that transgender Floridians and their advocates say threatens to subject them to increased marginalization and harassment.

READ MORE: Family sues Broward schools over law banning trans volleyball player from girls’ sports

"Florida has taken unilateral administrative action and banned gender marker changes on drivers licenses," Alejandra Caraballo, a Harvard Law instructor and LGBTQ+ advocate, wrote on X. "Any trans person who has had theirs changed is potentially subject to suspension. Anyone attempting to change it after could be criminally prosecuted for ‘fraud.’"

The memo from Robert Kynoch, the agency’s deputy executive director, detailed a policy change prohibiting Floridians from replacing their driver’s licenses to change what appears on the license next to the word "sex." The move comes ahead of two bills in the state Legislature that, if passed, would force a similar policy.

The agency’s action prevents transgender people from changing the "M" or "F" on an existing license. But it’s unclear how this change would affect new license applications or license-holders who have already changed their licenses to reflect their gender identities.

The memo also said that when "gender" is used in the driver's license statute in Florida law, it refers to "immutable biological and genetic characteristics." It asserted that misrepresenting gender during the license application process could result in criminal or civil penalties.

"Gender" is not defined in the chapter of the law that governs driver’s licenses and ID cards, and legal experts told PolitiFact they question whether the department is legally authorized to impose this statutory interpretation.

Transgender legal advocates told PolitiFact they believe the policy change merits legal challenge but, with legislators seemingly poised to try to codify a similar rule, attorneys are watching and weighing their options.

Here’s what we learned.

Memo prohibits replacing licenses for purposes of changing one’s gender

Before the department’s policy change, people who provided a letter from a medical provider confirming they were undergoing gender transition treatment were allowed to change what appeared in the "sex" field of their license or ID — either "M" or "F"— to align with their gender identity, male or female.

Although "sex" and "gender" are often used as synonyms, medical experts and most major medical organizations define these terms differently.

Sex refers to a biological category determined by physical features such as genes, hormones and genitalia — male, female or intersex, which means they were born with reproductive or sexual anatomy that doesn’t fit neatly into any category.

Gender identity refers to someone’s internal sense of being a man, woman, something in-between or neither, experts say. For many people, their sex and gender are the same, but people who are transgender have a mismatch between the two.

Kynoch’s memo said the old policy that allowed people to get new licenses to reflect a gender change is "not supported by statutory authority" and cited Florida statute 322.17, which outlines conditions under which the department can issue a replacement license.

That statute says a replacement can be issued if an ID is lost, stolen or if there is a change to someone’s name, address or driving restrictions. Replacing the license for a change in gender identity, therefore, is not supported by statute, the memo argued.

Different sections of the law in Florida govern license "renewals" and "replacement," so it is unclear whether people who had already changed their gender on their license could renew their existing licenses as is. The department did not answer PolitiFact’s questions about renewals.

Memo asserts definition of ‘gender’ and warns of fraud penalties 

The memo’s final two paragraphs grabbed attention from LGBTQ+ advocates. It read:

"Furthermore, the term ‘gender’ in s. 322.08, F.S., does not refer to a person’s internal sense of his or her gender role or identification but has historically and commonly been understood as a synonym for ‘sex,’ which is determined by innate and immutable biological and genetic characteristics."

It is unclear what Kynoch based this definition of "gender" on.

The portion of the law his memo cited says only that "gender" is one piece of information required to be collected on a license application, along with a person’s full name, proof of Social Security number, mailing address and more. The term itself is not defined.

Molly Best, a department spokesperson, did not answer our questions about the source of the definition.

Florida’s physical license labels the "M"/"F" field with the term "sex." But the law on licenses uses the term "gender" to describe what is required on a license application.

University of Florida law professor Berta Esperanza Hernández-Truyol questioned the interpretation. "While, to be sure, agencies issue regulations, it is very arguably beyond their purview to single-handedly reinterpret statutory law," she said. "Especially with the attempted redefinition of ‘gender’ which, as a term of art, has a different meaning from ‘sex.’"

Simone Chriss, a lawyer and the director of the Transgender Rights Initiative at the Southern Legal Counsel, criticized the memo as "creating a definition that doesn’t exist" in the statute. Chriss’ firm is suing Florida over other anti-LGBTQ+ legislation, including the state’s restrictions on gender-affirming care and policies regarding the use of pronouns in school that don’t align with biological sex.

The rule change comes as the state Legislature considers H.B. 1639 and H.B. 1233, bills that would codify that a person’s license reflects a person’s "sex."

The bills define "sex" as "the classification of a human person as either male or female based on the organization of the body of such person for a specific reproductive role."

The memo also said "misrepresenting one’s gender, understood as sex, on a driver license constitutes fraud" and "subjects an offender to criminal and civil penalties, including cancellation, suspension, or revocation of his or her driver license."

It is uncertain under what circumstances such criminal charges could be applied or enforced. For example, how would it apply to transgender people who already have licenses that were changed to reflect their gender? Would there be consequences for people who apply for new licenses using primary documents that have already been legally changed to reflect their gender identity.

The agency did not answer questions about this portion of the memo. Legal experts told PolitiFact said they do not expect people who got their licenses changed before the memo to face fraud charges.

What does Florida’s change mean for new license applicants? It’s not clear.

Best said that the policy didn’t change the process for "establishing gender" on a new Florida license or ID. When applying for a new Florida license, residents must bring at least one primary identifying document — a passport, birth certificate, or certificate of citizenship, for example. Gender "must be taken from a primary identification document," according to the technical advisory distributed alongside the memo.

But people can change what appears as their gender on U.S. passports and, in many states, on their birth certificates, leaving open the question of how this fits in with the memo’s assertion that "misrepresenting one’s gender … constitutes fraud."

In response to PolitiFact’s questions, Best said, "In Florida, you do not get to play identity politics with your driver license," and that "to obtain a license … requires satisfactory proof of identity, including your biological sex."

Best directed us to a department website that explains what documents people need when applying for driver’s licenses. The law requires "satisfactory" proof of identity including name and "gender." We found no evidence, however, that Florida law requires proof of one’s biological sex in order to obtain a new ID or license.

The implications for transgender residents

LGBTQ+ advocates say the Florida highway safety department’s change could risk trans people’s privacy and open them to discrimination or prejudice.

"If you can’t update the gender marker on your ID, you are essentially outed as transgender at every turn," said Rodrigo Heng-Lehtinen, executive director of the National Center for Transgender Equality. This can happen during interactions with potential landlords, employers, cashiers, bartenders, restaurant servers and more.

"You risk being subjected to discrimination by strangers on a regular basis," Heng-Lehtinen said.

By having to present an ID that doesn’t match how someone appears or refers to themselves, they might face invasive personal questions in job interviews or be questioned by police at a traffic stop about whether their ID is fraudulent, advocates said.

According to the Movement Advancement Project, a non profit think tank that tracks LGBTQ+ policies, most states have some mechanism for changing the "M" or "F" on licenses, but states such as Iowa are considering laws to restrict that. Other states are considering laws that would formally define "sex" and "gender" or block people from amending their birth certificates to reflect their gender identity.

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