LITTLE ROCK, Ark. — The Arkansas Supreme Court on Monday reinstated a state rule that bars residents from using “X” in place of male or female on state-issued driver’s licenses and identification cards.
In a one-page order, the justices blocked a lower court decision that had blocked new rules that would have made it harder for transgender people to change the gender listed on their identification cards and drivers licenses. The court did not elaborate on its reasons for blocking the ruling.
The Arkansas Department of Financial Management announced in March that it was reversing a practice that was implemented in 2010. Officials said the practice conflicted with state law and did not receive proper legislative approval. A legislative committee approved emergency rules to implement the new policy.
The rule change makes Arkansas the latest Republican state to take steps to legally define gender as a binary, a change that critics say essentially erases the existence of transgender and non-binary people and creates uncertainty for intersex people, who are born with physical characteristics that don’t fit the typical definitions of male or female.
“I applaud the Arkansas Supreme Court’s decision to block the circuit court’s unlawful order and allow the Department of Financial Management to bring its background check rules into compliance with state law,” Republican Attorney General Tim Griffin said in a statement.
The ACLU had sued the state on behalf of several transgender, non-binary and intersex residents challenging the emergency regulations, and a state judge who blocked them earlier this month said they would cause irreparable harm to residents if enacted.
“The only real emergency here is one of the state’s own making, by imposing this rule on transgender, intersex and non-binary Arkansans,” Holly Dixon, executive director of the American Civil Liberties Union of Arkansas, said in a statement. “By eliminating the ‘X’ marker option, the state is forcing people who do not fully fit into the gender binary to select an inaccurate gender marker, potentially causing confusion, distress, discrimination, physical harm and lack of proper identification.”
Arkansas is in the process of adopting permanent rules to implement the new policy.
Department of Financial Management Secretary Jim Hudson said he was grateful for the stay of execution and that his department resumed the process immediately following the court’s ruling.
Arkansas is one of at least 22 states and the District of Columbia that allow the “X” option on licenses and identification cards. According to the department, all licenses and identification cards ever issued in Arkansas that have an “X” will remain valid until their existing expiration date. There are more than 2.6 million active driver’s licenses in Arkansas, of which 387 have an “X.” There are approximately 503,000 identification cards in the state, of which 167 have an “X.”
The emergency rule also makes it harder for transgender people to change the gender listed on their licenses and identification cards, something they previously could do by submitting an amended birth certificate. Arkansas law requires a court order to change the gender listed on a birth certificate.
The DFA says the previous practice was not supported by state law and did not go through the required public comment process or legislative review.
