Cleary Files Amicus Brief in Support of Transgender Plaintiffs’ Challenge to Alabama Law Requiring Proof of Surgery to Change Gender Marker on Driver Licenses

August 2, 2021

Cleary Gottlieb filed a brief on August 2, 2021 on behalf of law professors as amici curiae in support of plaintiffs challenging an Alabama driver license gender marker law in the matter of Corbitt v. Taylor.

The plaintiffs, a group of transgender women, brought an action in the U.S. District Court for the Middle District of Alabama in 2018, challenging Alabama Law Enforcement Agency’s Policy Order 63, which requires proof of “complete” genital gender confirmation surgery in order to change the gender marker on Alabama driver licenses. The plaintiffs argued that the policy violated their constitutional rights under the Equal Protection clause, the right to informational privacy, the right to refuse unwanted medical treatment, and the prohibition on compelled speech under the First Amendment.

On January 15, 2021, Judge Myron H. Thompson held that Policy Order 63 imposed a sex-based classification, which was not justified by Alabama’s purported law enforcement interests and violated the plaintiffs’ rights under the Equal Protection clause. The District Court did not consider any of the plaintiffs’ additional claims. Alabama appealed to the U.S. Court of Appeals for the Eleventh Circuit.

Amici curiae are law professors with academic interests related to gender, sexuality, privacy, and free expression, and who have an interest in ensuring that the law develops in a way that is consistent with the constitutional protection afforded to transgender individuals. As teachers who work closely with students of all identities, they also have an interest in fostering inclusive spaces that welcome and treat all people with respect and dignity.

In their brief, amici ask the Court of Appeals to affirm the decision below, with a focus on plaintiffs’ First Amendment and informational privacy claims. It argues that where the State imposes its own view of an individual’s gender and requires them to endorse and display that message on their driver license, the State compels speech in violation of the First Amendment. The brief argues that Policy Order 63 is unconstitutional because it is not narrowly tailored to serve, or even rationally related to, the State’s interest in law enforcement and administrative efficiency. It argues that the government speech doctrine, which affords the government the privilege to speak on its own behalf, does not overcome the individual’s constitutional right against compelled speech, and that since the policy directly governs speech—not conduct—the policy could not merely be an “incidental burden” on speech. Finally, it argues that Policy Order 63 impinges on plaintiffs’ privacy rights by either 1) outing them as transgender if they choose not to have genital gender confirmation surgery or 2) compelling them to disclose medical information if they do choose to have such surgery.

To read the brief, click here.