For nearly two decades, transgender Texans have been able to update the gender/sex marker on their government documents to align with their gender identity. Texas courts have long interpreted the Texas Health and Human Safety Code to permit these changes.
Today, however, both state and federal directives seek to roll back these rights. The Texas governor has instructed state agencies to deny gender marker updates on driver’s licenses and birth certificate updates, while the president of the United States is pushing to reverse any prior changes on legal documents, including passports and social security records.
Legal precedents
In 2016, Lambda Legal secured a landmark victory in Zxyym v. Blinkin, requiring the U.S. Department of State to offer an “X” marker on passports, marking a significant step toward recognition and inclusion. The Trump administration previously attempted to stall and ignore the court’s order. But the court subsequently ruled that the State Department’s refusal to allow an intersex person to have an “X” marker violated the Due Process and Equal Protection Clauses of the U.S. Constitution.
Further, an appellate court found the administration’s insistence on enforcing a binary sex policy to be “arbitrary and capricious” — a legal way of saying it was neither fair nor logical.
Trump’s re-election loss in 2020 halted further challenges, but the current administration appears determined to test whether the Supreme Court will overturn these prior rulings. The president’s recent executive order declaring that federal law would only recognize two genders tees-up the next round of legal battles over gender markers at the federal level, and these battles likely will last longer than the Trump administration.
In Texas, in August 2024, in what appears to be a coordinated attack on the transgender community, the Department of Public Safety and the Department of Health and Human Services issued a new policy barring gender marker changes, directly and openly defying court orders. This January, Gov. Abbott issued a directive to all state administrative bodies commanding them to ignore all previously issued gender marker changes, and to only recognize individual’s sex assigned at birth.
Abbott’s argument for why his challenges are lawful is that the Department of Public Safety was not a party to the gender marker changes, and, therefore, is not bound by them. But he plainly ignores the glares problem with his argument: The Department of Public Safety is never party to name change cases under Texas law, and they are still bound by the court’s ruling.
These agencies’ refusal to comply with court orders disregards the fundamental principle of checks and balances that underpin our democracy. To date, the state agencies’ refusal to follow court orders has remained unchallenged, but that may change depending on what the Texas Legislature does — or does not do. It would not be surprising to see some sort of a legal challenge to the directives from the Texas governor.
What protections do we have? What does Texas law say? What’s next?
Where does this leave transgender Texans? It leaves them waiting — but not powerless. The fight for justice is not over; it is shifting to the courts once again. Legal advocacy organizations like Lambda Legal and the ACLU are mobilizing to strategically defend these rights, as they have done before.
Now is the time for patience, but also for action. Whether through legal battles, advocacy or simply standing in solidarity, we must ensure that no government official — state or federal — can ignore the rights of transgender individuals. Progress has never come easily, but history has shown that perseverance and advocacy can turn the tide.
The fight continues, and we all have a role to play.
What do you need to do?
First, if you have previously had a gender marker change and the Department of Public Safety refuses to renew your license with the reflected change, reach out to Lambda Legal’s Help Desk and let them know: LambdaLegal.org/HelpDesk/#Contact.
Similarly, if the state sends you an updated birth certificate that does not reflect your previously amended birth certificate, please reach out to Lambda Legal.
Second, stay tuned to what is happening at the Texas Legislature. HRC, Equality Texas, Lambda Legal, the ACLU and TENT are all monitoring the bills moving through the Legislature. Texas House of Representative Committee chairs were named last week, which will start some of the movement for the bills that are being monitored.
Finally, all of the “L,” “G” and “B” members of the community are encouraged to reach out and check-in on the “T” members of the community. Many of our friends are feeling persecuted to the point of moving out of the state.
Our greatest strength is our unity and compassion for one another, we must stick together and look out for one another. We have great organizations that are leading the charge in the legal fight, they need our support, too.
Michael Debnam is an attorney with DebnamRust law firm, specializing in divorce, estate planning and family law. For more information visit DebnamRust.com or call 214- 775-0628.