Texas Attorney General Ken Paxton declared Friday that he ordered the change of gender markers on state court birth certificates, driver’s licenses and other state-issued IDs.
State agencies have already banned transgender people from changing sex markers on birth certificates and driver’s licenses due to internal policy changes last year. Paxton’s new directive requires them to go further and return changes to the sex markers, which are the result of the court’s order. The directive is the first in the nation of its kind and marks yet another escalation in the state’s nearly ten-year efforts to limit trans rights.
“There are only two genders. It is determined by the biology of the concept, not by emotion or ‘gender theory,” Paxton said in a statement Friday. “Radical left judges have no jurisdiction to order an agency to violate the law, and they have no authority to overturn reality. In Texas, they follow common sense and restore documents that have been incorrectly altered to be consistent with biology.”
Paxton’s directive came from a non-binding legal opinion in response to a request from Steven McCraw, director of the Texas Department of Public Safety (DPS) in September. McCraw asked the Attorney General if Texas courts have the power to order state agencies to change persons’ sexual designations for government documents. If they are not, McCraw continues, and does an agency like DPS have the authority to return trans Texan sex markers whose documents have been altered by court orders?
McCraw said in his request that there was “a long-standing statewide effort to change government records to reflect gender identity.” He said a judge who approves the changes to sex markers “citation of local news reports about lawyers helping to update Texas documents, “can do that without scrutiny.”
Transgender advocates say that IDs that accurately reflect the gender identity of trans people are important to their safety. Documents showing their birth sex rather than their live sex say that it can cause problems through airport security and travel.
However, McCraw said state documents are needed to reflect gender, which he defined as “binary fixed biological facts” referring to the presence of two X chromosomes or the presence of Y chromosomes. Despite scientists estimate that 1.7% of people are born with intersex, conservative officials often cited similar definitions of sex. This means that there are sexual traits that do not conform to the typical definition of male or female.
Ash Hall, an LGBTQ policy and advocacy strategist for the ACLU in Texas, said that non-binding legal opinions like Paxton cannot be replaced by court orders.
“The state agency has no authority to retrospectively modify valid legal documents,” Hall said in a statement. “If state agencies try to implement this non-binding opinion, it will be an illegal waste of resources that cannot stand in court or stand the test of time. We all need to have identity documents that are consistent with basic safety issues, and Paxton cannot erase the existence of transgender Texans.”
McCraw’s letter and Paxton’s legal opinion are the latest efforts from Texas officials, rolling back the rights of trans Texans.
In 2023, the state enacted a law prohibiting transition-related care for minors, banning trans student-athletes from playing on school sports teams in line with gender identity.
Many of the state’s policy changes aimed at trans people have circumvented Congress by agencies that chose to change policies internally, or by issuing legal directives for Paxton to do so. In March 2022, after state lawmakers failed to pass a bill restricting transition-related care for minors, Paxton was suspected of being suspected of providing such care to minor children with a child abuse investigation that launched an investigation into child abuse at Texas Family and Protective Services.
The Texas Department of Public Safety and the State Department of Health quietly banned trans people from renewing their driver’s licenses and birth certificate sex markers in August and September. The state justified these changes earlier this year, citing an executive order signed by President Donald Trump, declaring that the federal government recognizes only two unchanging genders.
So far, Texas lawmakers have introduced nearly 200 bills aimed at LGBTQ people, according to Equality Texas, an LGBTQ advocacy group.
Last week, Republican Rep. Tom Oliverson introduced a bill that would allow trans people to claim state prison felony, which could be fined up to two years in prison and up to $10,000 if they accidentally identify birth sex with state documents or employers. The bill has no other sponsors and is unlikely to pass, but it is unlikely that it will be the country’s first sponsor.
Texas is not alone in their efforts to limit the identity of trans people. The Florida agency rolled out a similar policy last year, resulting in the Florida Highway Safety and Motor Vehicles Department of nullification of driver licenses issued to people who handle updated sex markers and issue new licenses indicating birth sex.
