The next battle in US's crisis of democracy may be over trans Americans' IDs

by Chrissy Stroop

Florida last week took a giant step along the path to criminalising a trans person for simply existing, declaring that trans Floridians can no longer present a driving licence showing their real gender.

The move is a gross violation of human rights that will forcibly out trans people and likely lead to instances of ridicule, intimidation and violence.

It may also be out of step with the US's federal law and could lead to a clash between the Republican-run state and the national government. Once again, the most vulnerable in our society are caught in the crosshairs of the US's crisis of democracy.

Just last week, I wrote that Texas governor Greg Abbott's weeks-long refusal to yield to both the federal government and the Supreme Court on immigration enforcement lays bare the racist and specifically neo-Confederate nature of the Republican Party.

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Abbott has refused to allow federal Border Patrol agents to enter a public park along the Rio Grande where refugees and asylum seekers are known to cross the southern border into the US. The Biden administration has determined that the razor wire Abbott has deployed in the area as a gruesome "deterrent" should be removed, but Texas National Guard troops, following Abbot's orders, are blocking federal agents from doing so.

Abbott, a right-wing Catholic, is backed in his illegal defiance by the Republican Governors Association, 25 other individual Republican state governors, and a traveling convoy of hundreds of right-wing Christian extremists, some of whom refer to themselves as 'God's army'.

American federalism allows states to diverge in a number of policy areas but, as I noted last week, immigration enforcement is not one of them. Neither, it seems, are driving licences, which were standardised by the Real ID Act – or, at least that's the argument being made by eight Floridian Democrats (out of a total state delegation of 28 people) in the federal House of Representatives.

The 2005 Act established security requirements that state driving licences must meet. The rollout of Real ID across the states has been slow and uneven but federal enforcement is set to begin next year, and a Real ID driving licence is already necessary for domestic air travel (unless one is using a passport, which is a federally issued ID).

Last week, the news dropped that the Florida Department of Highway Safety and Motor Vehicles had adopted an official policy of refusing to issue or renew driving licences with transgender residents' legally changed gender, instead insisting on using sex assigned at birth. A Floridian transgender motorist who uses a licence featuring their correct gender could be found guilty of 'fraud' and handed civil or criminal penalties.

The state's legislature had already been considering such a law, but Florida's viciously anti-LGBTQ governor, Ron DeSantis, appears to have once again decided to implement a policy directly through the bureaucracy without waiting for legislation to pass. (He previously did so when packing the state medical board with right-wing ideologues – in many cases those who share his traditionalist Catholic faith – that he could count on to ban gender-affirming care for minors.)

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It seems likely that the DeSantis administration will use the policy as an excuse to disenfranchise trans voters in a crucial election year. Like most Republican-controlled states, Florida requires the presentation of an ID to vote in an election, and many Americans present their driver's licences. As readers may recall, DeSantis has already put together a thoroughly dystopian 'election police' force that he has used to terrorise African American voters since the 2020 election. I suspect that next year he will unleash the same force on trans Floridians who do manage to vote in November's election.

The Florida Democrats have written to the Department of Homeland Security (DHS) to argue that Florida's new policy "is in direct conflict with the stated purpose of the Real ID Act: 'to make our identity documents more consistent and secure'".

Their statement goes on to contend that contrasting gender markers on state and federal IDs "will create confusion" and "will increase tension and delays in already stressful situations like traffic stops and airport security. It will also lead to unnecessary detentions and unlawful arrests."

Such cruel and unjust outcomes are clearly one of the purposes behind the policy. But if the DHS sees merit in the Florida Democrats' argument, it could implement a change to its enforcement rules in order to clarify that Florida is unequivocally out of compliance with the Real ID Act.

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If DeSantis refuses to comply, this would likely force the Supreme Court to decide the issue. While the chances of the illegitimately stacked, right-wing Supreme Court ruling in favor of trans rights in any area are far lower than they should be, ruling against the DHS could upend the new Real ID system just as its full implementation is completed, and I'm not sure every conservative justice would be willing to rock the boat to that extent.

I thus hope that President Joe Biden and his secretary of homeland security, Alejandro Mayorkas, will respond favorably to the Florida Democrats' complaint. Should Biden vocally support this approach, it will undoubtedly help motivate trans Americans and our allies to get out to vote for him in November, even though many of us are significantly to his left and find much to criticise about his attitudes and policies.

Admittedly, many of us are also quite wary of the DHS – which was created by George W. Bush after the 11 September terrorist attacks, in a moment of right-wing paranoia and significant government overreach with respect to surveilling American citizens – and, personally, I feel it's a bit awkward to look to the department to fight for justice.

But the federal policy is to allow trans Americans to change our gender on official documents. In this case, Secretary Mayorkas may be the unlikely hero we need to protect the rights of trans Americans not only in Florida, but in all states where there is a clear and accelerating trajectory toward the criminalisation of trans existence.

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