LEGAL
Court Won’t Dismiss Non-Binary NYer’s License Suit
New York State requires applicants to choose male or female on driver’s licenses
BY ARTHUR S. LEONARD
The automated system
for generating a driver’s
license in New York requires
the applicant to
identify as either male or female
on the application form, and the
resulting license will identify its
holder as either male or female. A
person who identifi es as non-binary
is faced with a dilemma when
applying for a license: They can’t
check the male or female box on
the form without misrepresenting
their gender.
Sander Saba, caught in this
dilemma, fi led a lawsuit against
Governor Andrew Cuomo and Department
of Motor Vehicles (DMV)
Commissioner Mark Shroeder last
summer, claiming that this system
violates their constitutional rights.
The defendants moved to dismiss
the case as moot, claiming they
were fi xing the problem. On April
23, however, US District Judge
Lewis J. Liman rejected their argument
and refused to dismiss the
case.
Saba was born in New York and
has been able to obtain a revised
birth certifi cate showing their gender
as X rather than M or F, as
they requested. Saba was residing
in Pennsylvania when they obtained
their driver’s license, which
also identifi es their gender with an
X. But upon moving back to New
York, they had to obtain a New
York driver’s license, or they would
be considered an unlicensed driver
after 30 days residing in the state.
According to Saba’s Complaint,
the Form MV-44 that an applicant
for a license must complete
requires the applicant to designate
themselves as male or female and
does not provide the third option
— “X” — that has been available
in New York for birth certifi cates
since 2019 and is available from
the federal government for Social
Security purposes but not yet for
passports, which is under litigation.
Saba sent a letter to the DMV
commissioner’s offi ce on May 26
of last year asking how they could
Sander Saba sued New York State in response to a policy that only allows “male” and “female” designations
on driver’s licenses.
get a New York driver’s license with
an X gender marker, or alternatively
asking whether DMV’s current
policy prohibits non-binary
residents from obtaining such a
license. On July 7, Brandon Flynn,
a DMV employee, called Saba and
confi rmed that DMV would not
issue a license without an M or F
gender designation because of the
way the computer system was set
up. Flynn told Saba that they were
in the process of “updating” the
computer system, but, according
to Judge Liman’s summary of the
Complaint, “could not state whether
this process would result in an
option for an “X” gender marker for
New York issued licenses.”
Lambda Legal then fi led the lawsuit
on behalf of Saba against Cuomo
and Shroeder, claiming that the
current policy violates Saba’s First
and 14th Amendment rights. Responding
to the lawsuit, the DMV
offered to let Saba submit an application
without making a gender
designation, and they would have
it manually processed and produce
an “X” license for Saba.
However, in order to assign a
motorist identifi cation number
(MI) that is necessary to identify
the driver in DMV’s electronic database,
DMV would itself assign a
binary identifi cation to Saba under
which their information would
be catalogued, because the algorithm
LAMBDA LEGAL
by which the MI numbers
are generated requires a gender
designation of M or F. The DMV
database is not used solely for internal
departmental purposes. It is
also accessed by the police, Social
Security, banks, and insurance
companies. Thus, anybody who
accessed the database for information
about Saba would see what
Saba contends is an inaccurate
statement of their gender.
Furthermore, if a police offi cer
were to access the database, they
would see a discordance between
Saba’s gender in the database and
as shown on the license, raising
doubts about the license’s validity.
DMV offered to provide Saba with
an offi cial letter that would explain
should Saba encounter that sort of
situation.
This offer by the DMV did not
persuade Saba to withdraw the
lawsuit, so the defendants fi led a
motion to dismiss, claiming that
their offer rendered the lawsuit
moot because they were willing to
give Saba what Saba was seeking:
a driver’s license with an “X” gender
designation.
Judge Liman concluded that
based on the facts alleged in Saba’s
complaint and the representations
made by DMV Deputy Commissioner
Gregory Kline in support of
the motion to dismiss, the case is
not moot. Kline pointed out that in
fact money had been allocated to
DMV to replace their old computer
system with a new one, although
Kline later amended his statement
to indicate that instead they
were going to modify the existing
system. Either way, the computer
system would eventually be able to
accommodate a third gender designation.
Estimates varied as to how
long that would take, although it
seemed likely that it would not be
fully in place until sometime in
2022.
The judge pointed out that the
dispute is not moot so long as the
current application form and system
remains in place, and that offering
the “X” license without altering
the DMV database means that
the potential constitutional problems
(freedom of expression, due
process liberty, equal protection)
with the current system are not
completely addressed. Mootness
means that there is no longer a basis
for a constitutional claim, and
the defendants failed to prove that.
Indeed, at this point, they have not
proved anything; they just made
representations to the court to try
to get the case dismissed.
Judge Liman pointed out that
despite the statement in Cuomo’s
State of the State document released
earlier this year that he
had directed DMV to “implement a
policy change for correcting gender
markers on New York State driver’s
licenses consistent with DOH’s
policy, including making available
a non-binary gender marker on
driver’s licenses,” until the implementation
takes place, the problem
will not be cured. (The reference
to DOH — the Department of
Health — is to the change made in
2019 so that transgender and nonbinary
people could get new birth
certifi cates consistent with their
gender identity.)
The judge wrote that “the future
change does nothing to suffi ciently
address the current alleged harm.”
Even if Saba gets the driver’s license
they sought, the DMV database
would still contain an inaccu-
➤ DRIVER’S LICENSE, continued on p.39
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