Arkansas Supreme Court reinstates rule eliminating ‘X’ option for sex on licenses and IDs

LITTLE ROCK, Ark. The Arkansas Supreme Court on Monday reinstated an agency rule prohibiting residents from using “X” rather than male or female on driver’s licenses or state-issued identification cards.

In a one-page order, the justices halted a lower court ruling that had blocked the new rule that also made it more difficult for transgender people to change the sex listed on their identification documents and licenses. The court did not detail the reasons for suspending the decision.

The Arkansas Department of Finance and Administration said in March it was rescinding a practice implemented in 2010 that officials said conflicted with state law and had not undergone adequate legislative approval. A legislative panel approved an emergency rule implementing the new policy.

The rule change made Arkansas the last among Republican states to take action to legally define sex as binary, which critics say is essentially erasing the existence of trans and non-binary people and creating uncertainty for intersex people — those who are born with physical characteristics that don’t fit typical definitions of male or female.

“I applaud the Arkansas Supreme Court’s decision to lift the court’s unlawful order and allow the Department of Finance and Administration to adapt its identification rules to state law,” Attorney General Tim Griffin, a Republican, said in a statement.

The American Civil Liberties Union had sued the state on behalf of several transgender, non-binary and intersex residents defying the emergency rule. A state judge who blocked the rule earlier this month said it would cause irreparable harm to residents if it were implemented.

“The only real emergency here is the one created by the state itself by imposing this rule on transgender, intersex and non-binary Arkansas,” Holly Dickson, executive director of the ACLU of Arkansas, said in a statement. “By removing the option of the ‘X’ marker, the State forces those who do not fit neatly into the gender binary to choose an inaccurate gender marker, resulting in potential confusion, distress, discrimination, physical harm and lack of proper identification.”

Arkansas is in the process of adopting a permanent rule to implement the new policy.

Department of Finance and Administration Secretary Jim Hudson said he was grateful for the suspension and the department immediately reinstated proceedings in light of the court’s decision.

Arkansas was among at least 22 states and the District of Columbia that allowed “X” as an option on licenses and identification. All licenses and IDs previously issued in Arkansas with the “X” designation will remain valid through their existing expiration dates, the department said. Arkansas has more than 2.6 million active driver’s licenses, and 387 of them have the “X” designation. The state has around 503 thousand identity cards, 167 of which have the designation “X”.

The emergency rule will also make it more difficult for transgender people to change the sex listed on their licenses and identification documents, which they have been able to do by submitting an amended birth certificate. Arkansas law requires a court order for a person to change the sex listed on their birth certificate.

The DFA said the previous practice was not supported by state law and did not go through the required public comment and legislative review process.