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

LITTLE ROCK, Ark. — The Arkansas Supreme Court on Monday reinstated the agency rule prohibit residents from using “X”. instead of men or women on state-issued driver’s licenses or identification cards.

In a one-page order, the justices upheld a lower court ruling that had blocked the new rule, which also made it harder for transgender people to change the gender listed on their IDs and driver’s licenses. The court did not explain 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 violated state law and had not been approved by the Legislature. A legislative panel approved an emergency rule implementing the new policy.

The rule change made Arkansas the last of the Republican states to take action legally define sex as binary, which critics say essentially erases the existence of transgender and nonbinary people and creates insecurity for intersex people — those born with physical traits that don’t fit typical definitions of male or female.

“I applaud the Arkansas Supreme Court’s decision to stay the Circuit Court’s unlawful order and allow the Department of Treasury and Administration to conform its identification rules with state law,” said Attorney General Tim Griffin, a Republican, said in a statement.

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

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

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

Arkansas was one of at least 22 states and the District of Columbia that allowed “X” as an option on licenses and IDs. All previously issued Arkansas licenses and IDs marked “X” remain valid through their existing expiration dates, the department said. When the rule was announced, Arkansas had more than 2.6 million active driver’s licenses, and 342 of them had the “X” designation. The state has about 503,000 IDs, 174 of which have the “X” designation.

The emergency rule will also make it more difficult for transgender people to change the gender listed on their driver’s license and ID, which they could have done by submitting an amended birth certificate. Arkansas law requires a court order for a person to change the gender listed on their birth certificate.

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