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

LITTLE ROCK, Ark. -- The Arkansas Supreme Court on Monday reinstated an agency rule prohibiting residents from using “X” instead of male or female on state-issued driver’s licenses or identification cards.

In a one-page order, justices stayed a lower-court ruling that had blocked the new rule that also made it more difficult for transgender people to change the sex listed on their IDs and licenses. The court did not elaborate for its reasons on staying the decision.

The Arkansas Department of Finance and Administration said in March that it was rescinding a practice implemented in 2010 that officials say conflicted with state law and had not gone through proper legislative approval. A legislative panel approved an emergency rule implementing the new policy.

The rule change made Arkansas the latest among Republican states taking steps to legally define sex as binary, which critics say is essentially erasing transgender and nonbinary people’s existences and creating uncertainty 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 staying the circuit court’s unlawful order and allowing the Department of Finance and Administration to bring its identification rules into compliance with state law," Attorney General Tim Griffin, a Republican, said in a statement.

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

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

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

Department of Finance and Administration Secretary Jim Hudson said he was grateful for the stay, and the department was immediately reinstating the procedures because of the court's ruling.

Arkansas was among 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 with the “X” designation will remain valid through their existing expiration dates, the department said. Arkansas has more than 2.6 million active driver’s licenses, and 387 of them have the “X” designation. The state has about 503,000 IDs, and 167 with the “X” designation.

The emergency rule will also make it more difficult for transgender people to change the sex listed on their licenses and IDs, which they had been able to do by submitting an amended birth certificate. Arkansas law requires a court order for a person to change the sex listed on their birth certificate.

The DFA has said the previous practice wasn’t supported by state law and hadn’t gone through the required public comment process and legislative review.