Lawsuit filed over Arkansas’ ban on gender-neutral driver’s license policy

A lawsuit filed in circuit court Tuesday challenges a new emergency rule that rescinded Arkansas’ gender-neutral driver’s license policy and asks the court to block its enforcement.

The American Civil Liberties Union of Arkansas filed the lawsuit against the state Department of Finance and Administration in Pulaski County Circuit Court on behalf of five transgender, nonbinary and intersex plaintiffs.  

The department in March rescinded a policy that had been in place since 2010 allowing driver’s license holders to change their gender marker with no questions asked or to use an “X” in place of “male” or “female.”

The Arkansas Legislative Council’s executive subcommittee later approved DFA’s emergency rule that required driver’s licenses and state-issued IDs to reflect the gender listed on a person’s birth certificate.

UPDATED: Arkansas lawmakers approve reversal of gender-neutral driver’s license policy

The complaint argues the emergency rule was implemented without documented justification or compliance with the Arkansas Administrative Procedure Act, which stipulates a 30-day public notice comment period unless there is an “imminent peril to public health, safety, or welfare” or a need to comply with federal law. 

Finance and Administration Secretary Jim Hudson told lawmakers last month that public feedback will be part of the process for drafting a permanent rule.

The lawsuit seeks a declaratory judgment that the emergency rule is invalid due to its violation of administrative procedures and lack of a stated emergency. The suit also seeks a preliminary injunction to halt enforcement of the rule and to require DFA to revert to the prior policy.

“The DFA has failed to demonstrate any urgent threat to public health or safety that justifies this sudden and restrictive change in policy,” ACLU of Arkansas Legal Director John Williams said in a statement. “Instead, their actions have created a real and immediate danger to the wellbeing of our plaintiffs and other transgender, nonbinary, and intersex people, for whom accurate identification is not just a matter of dignity, but of personal security.”

Documents provided to ALC’s executive subcommittee last month cite the need to comply with state law as justification for using an emergency rule as a means of changing policy.