IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

EMANI LOVE, et al.,

Plaintiffs,

vs.

RUTH JOHNSON, in her official 

capacity as the Secretary of State of 

Michigan,

Defendant.

/

Case No. 15-cv-11834

Hon. Nancy G. Edmunds

PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION 

FOR JUDGMENT ON THE PLEADINGS ON GROUNDS OF MOOTNESS

Case 2:15-cv-11834-NGE-EAS ECF No. 57, PageID.562 Filed 04/04/16 Page 1 of 30
ii

TABLE OF CONTENTS

INDEX OF AUTHORITIES.................................................................................... iii

QUESTION PRESENTED.......................................................................................vi

AUTHORITY FOR DENYING THE RELIEF SOUGHT .................................... vii

INTRODUCTION .....................................................................................................1

BACKGROUND AND FACTS ................................................................................2

ARGUMENT.............................................................................................................7

I. Judgment on the pleadings is not appropriate because Defendant’s 

motion is based on facts that are not in the pleadings................................7

II. Defendant has not met her heavy burden of proving that it is 

absolutely clear that the challenged conduct will not start up again..........8

A. There has been no legislative repeal of the challenged 

policy...........................................................................................9

B. There is no evidence in the record to support Defendant’s 

motion. ......................................................................................10

C. Defendant’s office has a history of changing the policy 

and reversing policy changes under political pressure. ............11

D. The timing of Defendant’s motion weighs strongly 

against mootness. ......................................................................14

III. The case is not moot because the new policy does not completely 

eradicate the harm caused by the challenged policy. ...............................17

CONCLUSION........................................................................................................21

Case 2:15-cv-11834-NGE-EAS ECF No. 57, PageID.563 Filed 04/04/16 Page 2 of 30
iii

INDEX OF AUTHORITIES

Cases

Akers v. McGinnis, 352 F.3d 1030 (6th Cir. 2003)..................................................10

Albrecht v. Treon, 617 F.3d 890 (6th Cir. 2010).......................................................7

Ammex, Inc. v. Cox, 351 F.3d 697 (6th Cir. 2003)..................................................17

Ashcroft v. Iqbal, 556 U.S. 662 (2007)......................................................................8

Bell v. City of Boise, 709 F.3d 890 (9th Cir. 2013) .................................................10

Brandywine, Inc. v. City of Richmond, 359 F.3d 830 (6th Cir. 2004).......................9

Cam I, Inc. v. Louisville/Jefferson Cty. Metro. Gov’t, 460 F.3d 717 (6th Cir. 

2006)........................................................................................................17, 18

Carr v. Alta Verde Indus., Inc., 931 F.2d 1055 (5th Cir. 1991) ................................9

Chafin v. Chafin, 133 S. Ct. 1017 (2013)................................................................21

Charles v. Daley, 749 F.2d 452 (7th Cir. 1984) ......................................................11

Cleveland Branch, NAACP v. City of Parma, 263 F.3d 513 (6th Cir. 2001)........1, 9

DeJohn v. Temple Univ., 537 F.3d 301 (3d Cir. 2008)............................................14

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 

(2000).............................................................................................9, 11, 14, 17

Harrell v. The Florida Bar, 608 F.3d 1241 (11th Cir. 2010)............................11, 14

Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637 (6th Cir. 1997) .........................9

Knox v. Service Employees Int’l Union, Local 1000, 132 S. Ct. 2277 (2012)..........1

Longstreth v. Maynard, 961 F.2d 895 (10th Cir. 1992) ...........................................2

Love v. Johnson, __ F. Supp. 3d __ (E.D. Mich. 2015) ............................................2

Max Arnold & Sons, LLC v. W.L. Hailey & Co., Inc., 

452 F.3d 494 (6th Cir. 2006)...........................................................................8

Case 2:15-cv-11834-NGE-EAS ECF No. 57, PageID.564 Filed 04/04/16 Page 3 of 30
iv

Moyle v. Cty. of Contra Costa, No. C-05-02324 JCS, 2007 WL 4287315

(N.D. Cal. Dec. 5, 2007)................................................................................15

Ne. Fla. Chapter of Associated Gen. Contractors v. City of Jacksonville, 

508 U.S. 656 (1993).......................................................................................17

Newman v. Trott & Trott, P.C., 889 F. Supp. 2d 948 (E.D. Mich. 2012) .................7

Rich v. Fla. Dep’t of Corrs., 716 F.3d 525 (11th Cir. 2013)...................................15

Sefick v. Gardner, 164 F.3d 370 (7th Cir. 1998).....................................................10

Sheeley v. MRI Radiology Network, P.A., 505 F.3d 1173 (11th Cir. 2007)............15

Vencor, Inc. v. Webb, 33 F.3d 840 (7th Cir. 1994)....................................................9

Wall v. Wade, 714 F.3d 492 (4th Cir. 2013)............................................................11

Court Rules

Fed. R. Civ. P. 12(b)(6)..........................................................................................7, 8

Fed. R. Civ. P. 12(c)...............................................................................................1, 7

Fed. R. Civ. P. 12(d) ..................................................................................................8

Other Authorities

Jaime M. Grant et al., Injustice at Every Turn: A Report of the National 

Transgender Discrimination Survey, National Center For Transgender 

Equality And National Gay And Lesbian Task Force (2011).................19, 20

Gary Glenn, Rep. Scott Didn’t Pull Transgender Statement Out of Thin Air; 

ACLU Has Campaigned for Official IDs, Flint Journal, Associated 

Press (February 11, 2010)................................................................................5

Mike Householder, Michigan Secretary of State Candidates Make Gender 

an Issue? Gender Designation on Driver’s License Discussed, 

Associated Press (February 13, 2010).............................................................4

Brian McVicar, Michigan Lawmaker Says LGBT Guidelines Take Away 

Parental Rights, ‘Upsets’ Student Privacy, MLIVE, Mar. 22, 2016..............14

Case 2:15-cv-11834-NGE-EAS ECF No. 57, PageID.565 Filed 04/04/16 Page 4 of 30
v

Dave Philipps, North Carolina Limits Bathroom Use by Birth Gender, 

N.Y. TIMES, Mar. 24, 2016............................................................................13

Brad Sears & Lee Badgett, Beyond Stereotypes: Poverty in the LGBT 

Community (Williams Institute June 2012)...................................................19

Michigan Department of Health and Human Services, Medicaid Provider 

Manual, Outpatient Therapy..........................................................................20

Sec. Of State Race: Ruth Johnson Joins Rep. Paul Scott in Opposing Sex 

Change on Driver’s Licenses (Aug. 20, 2010)................................................4

Case 2:15-cv-11834-NGE-EAS ECF No. 57, PageID.566 Filed 04/04/16 Page 5 of 30
vi

QUESTION PRESENTED

Should this Court grant Defendant’s motion for judgment on the pleadings 

on grounds of mootness when:

(1) The motion is based solely on counsel’s mere assertion in a brief 

that the relevant policy has changed;

(2) There has been no legislative repeal of the challenged policy, 

Defendant has submitted no evidence of the policy change or its 

permanence, and the history of the policy and timing of the 

policy change weigh against a finding that the old policy will not 

be resurrected; and

(3) The new policy does not completely eradicate the harm that gave 

rise to the instant lawsuit?

Plaintiffs’ answer: No.

Case 2:15-cv-11834-NGE-EAS ECF No. 57, PageID.567 Filed 04/04/16 Page 6 of 30
vii

AUTHORITY FOR DENYING THE RELIEF SOUGHT

Akers v. McGinnis, 352 F.3d 1030 (6th Cir. 2003)

Cam I, Inc. v. Louisville/Jefferson Cty., 460 F.3d 717 (6th Cir. 2006)

Charles v. Daley, 749 F.2d 452 (7th Cir. 1984)

Cleveland Branch, NAACP v. City of Parma, 263 F.3d 513 (6th Cir. 2001)

DeJohn v. Temple Univ., 537 F.3d 301 (3d Cir. 2008)

Friends of the Earth, Inc. v. Laidlaw, 528 U.S. 167 (2000)

Harrell v. The Florida Bar, 608 F.3d 1241 (11th Cir. 2010)

Longstreth v. Maynard, 961 F.2d 895 (10th Cir. 1992)

Sheeley v. MRI Radiology Network, P.A., 505 F.3d 1173 (11th Cir. 2007)

Wall v. Wade, 714 F.3d 492 (4th Cir. 2013)

Case 2:15-cv-11834-NGE-EAS ECF No. 57, PageID.568 Filed 04/04/16 Page 7 of 30
1

INTRODUCTION

“The voluntary cessation of challenged conduct does not ordinarily render a 

case moot because a dismissal for mootness would permit resumption of the 

challenged conduct as soon as the case is dismissed.” Knox v. Service Employees 

Int’l Union, Local 1000, 132 S. Ct. 2277, 2287 (2012). In this case, the Secretary 

of State has a history going back more than a decade of making unilateral changes 

to the state ID policy at issue in this case, including reversing changes in quick 

succession and based on political pressure. Now, nearly a year into this litigation 

and less than one week before the Secretary’s employees were scheduled to sit for 

depositions about the challenged policy, defense counsel have filed a motion 

seeking dismissal of this lawsuit on mootness grounds because, they assert, the 

relevant policy has changed yet again.

Under these circumstances, Defendant has not carried her “heavy burden” of 

“proving mootness.” Cleveland Branch, NAACP v. City of Parma, 263 F.3d 513, 

531 (6th Cir. 2001). Defendant’s motion, which seeks “judgment on the pleadings”

under Fed. R. Civ. P. 12(c), is not accompanied by any evidence regarding the 

purported change in policy—such as what motivated it, whether it has been 

implemented, or whether it is permanent. Further, although the new policy 

described in Defendant’s brief is unquestionably a step in the right direction, it 

does not fully eradicate the irrational and unjustified burdens imposed on

Case 2:15-cv-11834-NGE-EAS ECF No. 57, PageID.569 Filed 04/04/16 Page 8 of 30
2

transgender persons’ ability to obtain an accurate driver’s license as a policy, such 

as the form used in many other states to prove transgender person’s change of 

gender designation would likely have done. Instead, Defendant’s new policy 

requires persons to undergo the burden of obtaining a passport that they may not 

want or need and that is entirely unavailable to legal residents who are not U.S. 

citizens. For these reasons, and as more fully set forth below, Defendant’s motion 

should be denied.

BACKGROUND AND FACTS

This lawsuit challenges the Michigan Secretary of State’s policy for 

changing the gender on a driver’s license or state ID, because its requirements 

make it unduly burdensome, or in some cases impossible, for transgender 

individuals to obtain a state ID that accurately reflects their gender. Love v. 

Johnson, __ F. Supp. 3d __ (E.D. Mich. 2015) (Dkt. # 36 at Pg ID 325). Under the 

policy in place when the complaint was filed, Defendant will not correct the gender 

designation on a license or state ID unless presented with an amended birth 

certificate showing the correct gender. (Compl. ¶ 3.) The statutory requirements for 

amending the gender on a birth certificate vary depending on the state that issued 

it, making it extremely difficult or impossible for many transgender people to 

correct the gender on their Michigan-issued driver’s license or state ID, depending 

on the laws of the state in which they were born. Although the requirements for 

Case 2:15-cv-11834-NGE-EAS ECF No. 57, PageID.570 Filed 04/04/16 Page 9 of 30
3

amending a birth certificate in Michigan are statutory, the policy for correcting

gender on a driver’s license or state ID is entirely within the discretion of 

Defendant Ruth Johnson. (Id. ¶¶ 2-4, 38-41.)

Defendant now asserts that she has exercised her discretion to “update” her 

policy. (Def.’s Mot. for J. on the Pleadings, Dkt. # 48, at Pg ID 459.) Although no

affidavit or any other form of evidence regarding this purported policy change was 

placed in the record, Defendant’s attorneys have stated in their brief that she has 

“voluntarily abandoned” the policy that gave rise to this lawsuit, and will now 

accept a U.S. passport, passport card, or court order to change the sex on a driver’s 

license or state ID. (Id. at Pg ID 460, 462.) “With this updated policy in place,” 

Defendant argues, this case should be dismissed as moot. (Id. at 460.)

Defendant’s purported policy “update” is but the latest in a long series of 

changes her office has implemented to the policy being challenged in this case.

(Compl. ¶ 42.) Documents produced by Defendant during discovery show that 

there have been at least seven changes to the relevant policy prior to policy change 

that purportedly just took place. (See History of Changing Gender Procedure, 

Exhibit 1 to Decl. of Jay Kaplan, Exhibit A hereto; Defendant’s Answers to 

Plaintiffs’ First Set of Interrogatories, No. 6, Ex 2 to Kaplan Decl.) Significantly, 

in at least one instance in 2005, the Secretary of State changed the policy to make 

it easier to change the gender designation on a license or ID, only to reverse that 

Case 2:15-cv-11834-NGE-EAS ECF No. 57, PageID.571 Filed 04/04/16 Page 10 of 30
4

policy a few weeks later and reinstitute the older, more burdensome policy.

(Kaplan Decl. Exhibit 2 at p. 3.) 

Additionally, socially conservative activists and politicians have used the 

policy as a political weapon, placing intense political pressure on Republican 

candidates to adopt a more restrictive policy that prohibits gender changes on 

driver’s licenses and state IDs. See, e.g., Sec. of State race: Ruth Johnson joins 

Rep. Paul Scott in opposing sex change on driver’s licenses (Aug. 20, 2010), 

Exhibit 3 to Kaplan Decl. (noting that Gary Glenn said that “we’re glad that Ruth 

Johnson has now joined Rep. Paul Scott in expressly stating her opposition to the 

Secretary of State policy of allowing men to falsely identify themselves as female

on their state-issued driver’s license, and vice versa,”); Mike Householder, 

Michigan Secretary of State candidates make gender an issue? Gender designation 

on driver’s license discussed, Associated Press (February 13, 2010), Exhibit 4 to 

Kaplan Decl. (noting that Paul Scott’s position that “people who have undergone 

gender change operations shouldn’t be able to change their licenses to reflect their 

new identities” has drawn “praise by conservative activists”). In the 2010 primary 

election for Secretary of State, former Secretary of State Terri Lynn Land was

criticized for the temporary 2005 policy change, and the Campaign for Michigan 

Families, run by now-Representative Gary Glenn, demanded to know thencandidate Ruth Johnson’s position on the issue. See Exhibit 4 to Kaplan Decl.; see

Case 2:15-cv-11834-NGE-EAS ECF No. 57, PageID.572 Filed 04/04/16 Page 11 of 30
5

also August 19-20, 2010 email exchange between the Campaign for Michigan 

Families and Ruth Johnson, Exhibit 5 to Kaplan Decl.) Johnson eventually 

responded that she did “not support allowing people to change their gender on their 

license as a result of surgery or lifestyle.” (Kaplan Decl. Exhibit 5 at p. 3.) Less 

than three months after Johnson took office, she instituted the extremely restrictive 

2011 policy requiring an amended birth certificate to change the gender on a 

driver’s license or state ID. (Compl. ¶¶ 42-44.)

Prior to the commencement of this lawsuit, the ACLU spent years 

attempting to persuade Defendant to change her policy because it was harmful and 

unconstitutional, but Defendant refused. (See Kaplan Decl. at Group Exhibit 6)

(letters exchanged between Secretary of State and ACLU in 2005.) In 2004, after 

the Secretary of State’s office instituted a surgery requirement for gender changes 

on licenses, the ACLU complained to Secretary Land’s office about the change. In 

April 2005, the surgical standard was ended, only to be reinstated 18 days later.1

(See, e.g., Gary Glenn, Rep. Scott didn’t pull transgender statement out of thin air; 

ACLU has campaigned for official IDs, Flint Journal (February 11, 2010), Exhibit

 1 Director of the Michigan Customer Services Administration, Michael Wartella, 

admitted in his deposition that the Land Administration ordered the change and 

stated that he was unaware of any other reason for the change. Since Mr. 

Wartella’s deposition occurred on March 31, 2016, his transcript is unavailable. 

However, Plaintiffs will submit the relevant deposition pages to support this 

statement as soon as the transcript is available. 

Case 2:15-cv-11834-NGE-EAS ECF No. 57, PageID.573 Filed 04/04/16 Page 12 of 30
6

7 to Kaplan Decl.; see also Exhibit 4 to Kaplan Decl.) In 2011, a new policy was 

put into place under Secretary Johnson that continued the requirement for surgery 

for persons born in Michigan and other states requiring surgery to amend the 

gender on a birth certificate but made it impossible and even more burdensome for 

Michigan residents born in states where birth certificate gender changes were 

unavailable or required a court order. (Compl. ¶¶ 2-3.)

Once this lawsuit commenced, Defendant vigorously defended the 

constitutionality of her policy through her motion to dismiss (and, when that 

motion was denied, her motion for reconsideration). (See Dkt. ## 16, 40.) Even 

after this Court, in denying Defendant’s motion to dismiss, effectively ruled that 

Defendant’s policy is unconstitutional, Defendant persisted in enforcing and 

defending it. (See Def.’s Answer & Affirm. Defenses, Dkt. # 38, at Pg ID 370 

(“The Driver’s License policy does not violate any of the Plaintiffs’ constitutional 

rights.”).) Then, less than a week before Defendant’s staff were scheduled to be 

deposed (see Notice of Depositions, Group Exhibit 8 to Kaplan Decl.) and shortly 

after Plaintiffs had noticed a deposition for the Secretary herself (see Notice of 

Ruth Johnson Deposition, Exhibit 9 to Kaplan Decl.), Defendant abruptly 

announced that her policy has changed and filed the instant motion asking for this 

case to be dismissed.

Case 2:15-cv-11834-NGE-EAS ECF No. 57, PageID.574 Filed 04/04/16 Page 13 of 30
7

ARGUMENT

Defendant’s motion should be denied for three independent reasons. First, 

Defendant seeks judgment on the pleadings under Rule 12(c), but there is nothing 

in the pleadings that supports dismissal of this case as moot. Second, under the 

voluntary cessation doctrine, Defendant has failed to meet her heavy burden of 

proving that the wrongful conduct giving rise to this lawsuit will not resume after 

the case has been dismissed. And third, the case is not moot because Defendant’s 

new policy, although less burdensome than before, has not completely eradicated 

the harm that gave rise to this lawsuit.

I. Judgment on the pleadings is not appropriate because Defendant’s 

motion is based on facts that are not in the pleadings.

As a threshold matter, Defendant’s motion is fatally flawed under the 

applicable legal standard for judgment on the pleadings. “Motions for judgment on 

the pleadings pursuant to Federal Rule of Civil Procedure 12(c) are analyzed under 

the same standard as motions to dismiss pursuant to Rule 12(b)(6).” Newman v. 

Trott & Trott, P.C., 889 F. Supp. 2d 948, 956 (E.D. Mich. 2012) (Edmunds, J.)

(citing Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir. 2010)). Under this familiar 

standard, the court must “construe the complaint in the light most favorable to the 

plaintiff, accept all its allegations as true, . . . draw all reasonable inferences in 

favor of the plaintiff,” id., and deny the motion if the “pleaded factual content 

Case 2:15-cv-11834-NGE-EAS ECF No. 57, PageID.575 Filed 04/04/16 Page 14 of 30
8

allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2007).

This Court has already denied Defendant’s motion to dismiss under the Rule 

12(b)(6) standard. (See Dkt. # 36.) Although Defendant now asserts that the policy 

challenged by Plaintiffs’ complaint has been “updated,” Defendant bases that 

assertion on facts wholly outside the pleadings—facts set forth only in the text of a

brief authored by Defendant’s counsel. Therefore, under the applicable legal 

standard, judgment on the pleadings is not appropriate.

Had Defendant submitted evidence regarding her purported change in 

policy, then it might be appropriate to convert her motion to one for summary 

judgment. See Fed. R. Civ. P. 12(d); Max Arnold & Sons, LLC v. W.L. Hailey & 

Co., 452 F.3d 494, 502-03 (6th Cir. 2006). However, not a single affidavit or any 

other piece of evidence accompanies Defendant’s motion. Therefore, the Court 

should decide, and deny, the motion based on the pleadings alone.

II. Defendant has not met her heavy burden of proving that it is absolutely 

clear that the challenged conduct will not start up again.

Defendant’s mootness claim is governed by the “voluntary cessation” 

doctrine, described by the Supreme Court as follows:

It is well settled that a defendant’s voluntary cessation of a 

challenged practice does not deprive a federal court of its power 

to determine the legality of the practice. If it did, the courts 

would be compelled to leave the defendant free to return to his 

Case 2:15-cv-11834-NGE-EAS ECF No. 57, PageID.576 Filed 04/04/16 Page 15 of 30
9

old ways. In accordance with this principle, the standard we 

have announced for determining whether a case has been 

mooted by the defendant’s voluntary conduct is stringent: A 

case might become moot if subsequent events made it 

absolutely clear that the allegedly wrongful behavior could not 

reasonably be expected to recur. The heavy burden of 

persuading the court that the challenged conduct cannot 

reasonably be expected to start up again lies with the party 

asserting mootness. 

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189

(2000) (citations, quotation marks, and alterations omitted; emphasis added). The 

“heavy burden” is a burden of proof. See Cleveland Branch, NAACP, 263 F.3d at 

531; Vencor, Inc. v. Webb, 33 F.3d 840, 844 (7th Cir. 1994); Carr v. Alta Verde 

Indus., Inc., 931 F.2d 1055, 1064 n.7 (5th Cir. 1991). Defendant cannot satisfy this 

heavy burden.

A. There has been no legislative repeal of the challenged policy.

Defendant relies principally on Brandywine, Inc. v. City of Richmond, 359 

F.3d 830 (6th Cir. 2004), where the Sixth Circuit held that a challenge to the 

constitutionality of a city’s zoning ordinance became moot when the ordinance was 

repealed. Brandywine is distinguishable, however, because it is based on the 

established line of precedent that a legislative repeal ordinarily renders a case 

moot, as it is the product of a deliberative process that permanently changes the 

law. See, e.g., Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637, 644-45 (6th Cir. 

1997). In this case, by contrast, there was no legislative repeal: Defendant 

Case 2:15-cv-11834-NGE-EAS ECF No. 57, PageID.577 Filed 04/04/16 Page 16 of 30
10

exercised her unfettered discretion in unilaterally changing the policy, and she is 

completely unconstrained from changing it back again. 

The controlling case, therefore, is the Sixth Circuit’s decision in Akers v. 

McGinnis, 352 F.3d 1030 (6th Cir. 2003). In Akers, the plaintiffs challenged a 

written rule of the Michigan Department of Corrections (MDOC) and, during the 

course of the litigation, the rule was substantially revised. The Sixth Circuit 

rejected MDOC’s mootness argument: “In the present case, as the promulgation of 

work rules appears to be solely within the discretion of the MDOC, there is no 

guarantee that MDOC will not change back to its older, stricter Rule as soon as this 

action terminates.” Id. at 1035. Here, as in Akers, the challenged policy is solely 

within the Secretary of State’s discretion, and she is free to change back to the old 

policy as soon as this case is over.2

B. There is no evidence in the record to support Defendant’s motion.

As noted above, Defendant has submitted absolutely no evidence in support 

of her motion. No affidavit or other document proves that the asserted policy 

 2 Akers is in agreement with other courts that have rejected mootness arguments 

based on non-legislative changes in policy. See Bell v. City of Boise, 709 F.3d 890, 

900 (9th Cir. 2013) (rejecting mootness argument based on police chief’s “special 

order” because it “is not a formal written enactment of a legislative body”); Sefick 

v. Gardner, 164 F.3d 370, 372 (7th Cir. 1998) (“[T]he current . . . policy, adopted 

after the commencement of this suit, is not implemented by statute or regulation 

and could be changed again, so this voluntary cessation of the challenged conduct 

does not eliminate the controversy.”).

Case 2:15-cv-11834-NGE-EAS ECF No. 57, PageID.578 Filed 04/04/16 Page 17 of 30
11

change has taken place, proves that it is being implemented, explains what 

motivated the purported policy change, or demonstrates that it is permanent.3 As 

soon as this case is dismissed, Defendant will be “free to return to [her] old ways.” 

Friends of the Earth, 528 U.S. at 189. With no evidence in the record to support 

Defendant’s motion, it is far from “absolutely clear” that, upon dismissal, 

Defendant won’t simply resurrect the old policy. Id. If a “heavy burden” of proof 

means anything, it means that a defendant cannot prove mootness without an iota

of evidence to support her motion.

C. Defendant’s office has a history of changing the policy and 

reversing policy changes under political pressure.

Defendant’s mootness argument is further weakened by the fact that her 

office has a history of making unilateral changes to the policy at issue in this case, 

including reversing policy changes in quick succession and under political 

pressure. See Wall v. Wade, 714 F.3d 492, 497 (4th Cir. 2013) (holding that a state 

prison’s Ramadan policy change did not moot the claims, especially since “the fact 

that at least three separate policies have been utilized [] since 2009 indicates some 

degree of doubt that the new policy will remain in place for long”); Longstreth v. 

Maynard, 961 F.2d 895, 900 (10th Cir. 1992) (finding free exercise challenge was 

 3 See Harrell v. The Florida Bar, 608 F.3d 1241, 1266 (11th Cir. 2010) (“[W]e 

look for a well-reasoned justification for the cessation as evidence that the ceasing 

party intends to hold steady in its revised (and presumably unobjectionable) 

course.”).

Case 2:15-cv-11834-NGE-EAS ECF No. 57, PageID.579 Filed 04/04/16 Page 18 of 30
12

not moot due to change in hair grooming policy since policy had been repeatedly 

changed in the past); Charles v. Daley, 749 F.2d 452, 458 (7th Cir. 1984) (rejecting 

mootness argument because state had repeatedly made changes to the policy in 

question, thereby persuading the court that additional changes reverting back to the 

challenged policy “would not be unlikely”). As in Wall, Longstreth, and Charles, 

based on the history of changes specific to the policy in question, there is every 

reason to believe that another policy reversal would take place after this case is 

dismissed.

Exhibits 1 and 2 to the Kaplan Decl., produced by Defendant during 

discovery, show that there have been at least seven changes to the relevant policy 

prior to policy change that purportedly just took place. Significantly, in at least one 

instance in 2005, the Secretary of State changed the policy to make it easier to 

change the gender designation on a license or ID, only to reverse that policy a few 

weeks later and reinstitute the older, more burdensome policy. (Kaplan Decl. Ex 2 

at p. 3.)

Additionally, socially conservative activists and politicians have used the 

policy as a political weapon, placing intense political pressure on Republican 

candidates to adopt a more restrictive policy that prohibits gender changes on 

driver’s licenses and state IDs. In the 2010 primary election for Secretary of State, 

former Secretary of State Terri Lynn Land was criticized over the temporary 2005 

Case 2:15-cv-11834-NGE-EAS ECF No. 57, PageID.580 Filed 04/04/16 Page 19 of 30
13

policy change, and the Campaign for Michigan Families, run by nowRepresentative Gary Glenn, demanded to know then-candidate Ruth Johnson’s 

position on the issue. (See Kaplan Decl. at Exhibit 5.) Johnson eventually replied 

that she did “not support allowing people to change their gender on their license as 

a result of surgery or lifestyle,” earning the praise of the conservative group. (Id.)

When Johnson took office, she instituted the extremely restrictive 2011 policy 

requiring an amended birth certificate to change the gender on a driver’s license or 

state ID. (Compl. ¶¶ 42-44.) 

Defendant’s recently announced policy evidences Defendant’s awareness of 

the political pressure she anticipates, since Defendant has refused to directly adopt 

a non-surgical standard for changing the gender on a license—a move that had 

resulted in criticism of the Land administration and became an issue in Secretary 

Johnson’s campaign—but has instead agreed to accept a passport as proof of a 

gender change. It is difficult to believe, however, that Defendant’s new and stilldeficient policy will not result in public criticism, since it allows Michiganders 

who are able to obtain a passport to change the gender on their license without 

having surgery.

Based on this history, it is likely, if not certain, that Defendant’s most recent 

change in policy will also encounter political resistance from activist groups and 

politicians opposed to transgender rights. If this lawsuit is dismissed, there is every 

Case 2:15-cv-11834-NGE-EAS ECF No. 57, PageID.581 Filed 04/04/16 Page 20 of 30
14

reason to believe that Defendant—and candidates to succeed her in office—will be 

pressured to revert back to the old policy.4 Absent a final judgment enjoining that 

policy as unconstitutional, Defendant and her office would be “free to return to 

[their] old ways.” Friends of the Earth, 528 U.S. at 189.

D. The timing of Defendant’s motion weighs strongly against 

mootness.

The timing of Defendant’s purported change in policy also undermines her 

claim of mootness. “[A] defendant’s cessation before receiving notice of a legal 

challenge weighs in favor of mootness, while cessation that occurs late in the game 

will make a court more skeptical of voluntary changes that have been made.” 

Harrell v. The Florida Bar, 608 F.3d 1241, 1266 (11th Cir. 2010) (citation and 

internal quotation marks omitted). An example is DeJohn v. Temple University, 

537 F.3d 301, 309 (3d Cir. 2008), where the court rejected the defendant’s 

mootness argument because the change in policy took place “more than a year after 

 4 Sadly, anti-transgender legislation has become the political weapon of choice for 

reactionary policymakers. See, e.g., Dave Philipps, North Carolina Bans Local 

Anti-Discrimination Policies, N.Y. TIMES, (Mar. 23, 2016), Exhibit 10 to Kaplan 

Decl. (describing “wide-ranging bill barring transgender people from bathrooms 

and locker rooms that do not match the gender on their birth certificates”). In 

Michigan, state legislators have been eager to stoke anti-transgender sentiment 

based on modest, non-binding recommendations by the state board of education to 

create a safe learning environment for LGBTQ youth. See Brian McVicar, 

Michigan Lawmaker Says LGBT Guidelines Take Away Parental Rights, ‘Upsets’ 

Student Privacy, MLIVE, (Mar. 22, 2016), Exhibit 11 to Kaplan Decl. (reporting 

that House Speaker Kevin Cotter is condemning the state board of education for 

“eliminating parental authority” over “bathroom and locker room access”).

Case 2:15-cv-11834-NGE-EAS ECF No. 57, PageID.582 Filed 04/04/16 Page 21 of 30
15

the commencement of litigation and then only near the end of discovery, less than 

three weeks before the dispositive motions deadline in the case.” See also Rich v. 

Fla. Dep’t of Corrs., 716 F.3d 525, 532 (11th Cir. 2013) (holding that the change 

to the state’s kosher meal policy did not render the plaintiff’s claims moot when 

the change was made “late in the game” in the litigation). Similarly, courts reject 

mootness arguments when government policies are changed principally “out of a 

desire to avoid liability.” Sheeley v. MRI Radiology Network, P.A., 505 F.3d 1173, 

1187 (11th Cir. 2007) (reasoning that “[i]f we conclude that [plaintiff’s] claims are 

moot, then should [the defendant] determine that future litigation is unlikely, it 

may well calculate that its new policy is no longer the preferable course of action 

and revert to the old policy it prefers and apparently believes to be legal”); see also 

Moyle v. Cty. of Contra Costa, No. C-05-02324 JCS, 2007 WL 4287315, at *13 

(N.D. Cal. Dec. 5, 2007) (rejecting mootness argument where challenged stripsearch policy was changed “only in response to litigation”).

This case is similar. For years prior to the commencement of this lawsuit, the 

ACLU attempted to persuade Defendant to change her policy because it was 

harmful and unconstitutional, but Defendant refused. (See Kaplan Decl. at Group 

Exhibit 6.) Once this lawsuit commenced, Defendant vigorously defended the 

constitutionality of her policy through her motion to dismiss (and, when that 

motion was denied, her motion for reconsideration). (See Dkt. ## 16, 40.) Even 

Case 2:15-cv-11834-NGE-EAS ECF No. 57, PageID.583 Filed 04/04/16 Page 22 of 30
16

after this Court, in denying Defendant’s motion to dismiss, effectively ruled that 

Defendant’s policy is unconstitutional, Defendant persisted in enforcing and 

defending it. (See Def.’s Answer & Affirm. Defenses, Dkt. # 38, at Pg ID 370 

(“The Driver’s License policy does not violate any of the Plaintiffs’ constitutional 

rights.”).) Then, less than a week before Defendant’s staff were scheduled to be 

deposed (see Kaplan Decl. at Group Exhibit 8) and shortly after Plaintiffs had 

noticed a deposition for the Secretary herself (see id. at Exhibit 9), Defendant 

abruptly announced that her policy has changed and asked for the case to be 

dismissed. Michael Wartella admitted that the change in policy was the result of 

this lawsuit, which strongly suggests that if the case is dismissed the Defendant 

may sooner or later return to her previous restrictive policy. Sheeley, 505 F.3d at 

1189. Therefore, the timing of the purported policy change weighs heavily against 

mootness.

* * *

In sum, Defendant has failed to produce any evidence that this case is moot, 

and there has been no legislative repeal that would prevent her from returning to 

the old policy after this case is dismissed. That she may well do so is supported by 

her office’s history of changing the policy at issue and reversing course under 

political pressure, as well as the last-minute timing of the purported policy change 

that took place here. Based on all these factors, it is far from “absolutely clear” that 

Case 2:15-cv-11834-NGE-EAS ECF No. 57, PageID.584 Filed 04/04/16 Page 23 of 30
17

Defendant will not go back to her old policy after this case is dismissed. Friends of 

the Earth, 528 U.S. at 189. Defendant carries a “heavy burden” of proof on this 

issue, id., which she has not met. For that reason, her motion should be denied.

III. The case is not moot because the new policy does not completely 

eradicate the harm caused by the challenged policy.

Even if Defendant were able to prove that the purported changes to her 

policy are permanent, dismissal of this case would still be improper because as 

explained below, her new policy continues to impose substantial and unjustified 

burdens on the ability of transgender people to change the gender designation on 

their driver’s licenses and state IDs. In order to meet the heavy burden of 

establishing mootness, a defendant must prove not only that its practice has 

changed, but additionally that the change has “completely and irrevocably 

eradicated the effects of the alleged violation.” Ammex, Inc. v. Cox, 351 F.3d 697, 

705 (6th Cir. 2003) (internal quotation marks omitted) (emphasis added). A change 

in policy does not automatically render a case moot merely because the new policy 

“disadvantages [the plaintiffs] to a lesser degree than the old one.” Ne. Fla. 

Chapter of Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656, 662 

(1993). “A case is only moot when a live controversy no longer exists such that a 

court is no longer able to affect the legal relations between the parties.” Cam I, Inc. 

v. Louisville/Jefferson Cty. Metro. Gov’t, 460 F.3d 717, 719-20 (6th Cir. 2006). 

Case 2:15-cv-11834-NGE-EAS ECF No. 57, PageID.585 Filed 04/04/16 Page 24 of 30
18

The Sixth Circuit’s decision in Cam I, supra, is dispositive. In that case, the 

plaintiffs challenged a local licensing ordinance for adult entertainment 

establishments on various constitutional grounds. During the litigation, the 

ordinance was amended to “ameliorate the harsh effects of the licensing 

provisions,” id. at 719, at which point the defendant municipality sought dismissal 

on grounds of mootness. The Sixth Circuit rejected the mootness argument 

because, although the amended ordinance was an improvement and obtaining a 

license was less difficult than under the old ordinance, “[t]he amendments . . . did 

not completely remove the alleged harm,” id. at 720 (emphasis added), and the 

plaintiffs continued to believe that the ordinance was unconstitutional. “In other 

words, where the changes in the law arguably do not remove the harm or 

threatened harm underlying the dispute, the case remains alive and suitable for 

judicial determination.” Id. (internal quotation marks omitted) (emphasis added).

The same rule applies here. According to Defendant, she has “updated” her 

policy to allow individuals to present a U.S. passport, passport card, or court order 

to correct the gender on their Michigan driver’s license or state ID. (Def.’s Mot. for 

J. on the Pleadings, Dkt. # 48, at Pg ID 459-460.) Although this is an improvement 

in Defendant’s policy because it expands the types of documentation that can be 

used to correct the gender designation on a Michigan ID, it does not completely 

eliminate the irrational and unjustified burdens imposed on transgender persons 

Case 2:15-cv-11834-NGE-EAS ECF No. 57, PageID.586 Filed 04/04/16 Page 25 of 30
19

who wish to obtain accurate state-issued identification. Many people have no need, 

desire, or ability to obtain a U.S. passport: some simply have no plans to travel 

internationally; for low-income individuals,5 the expense of obtaining a U.S. 

passport is prohibitively expensive or would impose a manifest hardship; and for 

non-U.S. citizens, obtaining a U.S. passport is literally impossible. In addition, to 

obtain a passport with the new gender on it, a transgender person must have a 

physician sign a letter supporting the gender change, whereas many states have 

policies for gender changes that allow other medical providers, such as counselors, 

to certify a person’s gender change. The burden of requiring a physician’s affidavit 

is significant for transgender people who face huge disparities in access to health 

care, through lack of insurance, insurance or Medicaid coverage policies that often 

exclude coverage for services related to gender transition,6 and frequent 

 5 Transgender people are four times more likely to have a household income under 

$10,000 and twice as likely to be unemployed as the typical person in the United 

States. Almost one in five has been homeless at some point in their lives. 

Transgender people of color have an unemployment rate four times the national 

average. See Brad Sears & Lee Badgett, Beyond Stereotypes: Poverty in the LGBT 

Community, Williams Institute (June 2012), Exhibit 12 to Kaplan Decl.; Jaime M. 

Grant et al., Injustice at Every Turn: A Report of the National Transgender 

Discrimination Survey, National Center For Transgender Equality And National 

Gay And Lesbian Task Force (2011), Exhibit 13 to Kaplan Decl., at 22 (finding 

that “[f]ifteen percent (15%) of our respondents reported making under 

$10,000/year, nearly four times the rate of this household income category for the 

general population.”).

6 See Michigan Department of Health and Human Services, Medicaid Provider 

Manual, Outpatient Therapy, Exhibit 14 to Kaplan Decl., at p. 12; Andrew M. 

Case 2:15-cv-11834-NGE-EAS ECF No. 57, PageID.587 Filed 04/04/16 Page 26 of 30
20

discrimination by health care providers.7 In essence, Defendant’s “updated” policy 

requires transgender individuals to jump through challenging bureaucratic hoops 

seeking unnecessary, expensive, and in some cases unavailable documentation 

from the federal government just to obtain accurate identification from the state, 

whereas everyone else can simply obtain accurate ID directly. The policy thus 

continues to impose a unique burden on transgender people in Michigan that is not 

justified by any rational basis, let alone a compelling or important governmental 

interest.8

Admittedly, for some transgender people (for example, those who already 

have passports or can obtain one without hardship), the new policy described in 

Defendant’s brief would likely prove to be a marked improvement over the 

previous policy. However, even if this Court finds that Plaintiffs’ challenge to the 

2011 policy is moot, which Plaintiffs dispute, Plaintiffs’ challenge to the new 

policy remains. Plaintiffs’ argument at the summary-judgment and/or trial stages of 

 

Seaman, Transgender people face discrimination in healthcare, Reuters (March 

13, 2015), Exhibit 15 to Kaplan Decl. 

7 Injustice at Every Turn at 72-73. 

8 Defendants also allude to the possibility of presenting “a court order changing the 

sex of the individual.” (Def.’s Mot. for J. on the Pleadings, Dkt. # 48, at Pg ID 

460.) However, in Michigan there does not appear to be any known cause of 

action, procedural mechanism, or established legal standard for obtaining such an 

order. Therefore, this aspect of the “update” to Defendant’s policy is all but 

useless.

Case 2:15-cv-11834-NGE-EAS ECF No. 57, PageID.588 Filed 04/04/16 Page 27 of 30
21

this case that the new policy is unconstitutional is different, and possibly more 

challenging, than their challenge to the 2011 policy. But this goes only to the 

merits of Plaintiffs’ legal claims, not the jurisdiction of this Court under the 

mootness doctrine. 

The Supreme Court emphasized this critical distinction in Chafin v. Chafin, 

133 S. Ct. 1017, 1024 (2013), warning against confusing “mootness with the 

merits” and explaining that a plaintiff’s “prospects of success are . . . not pertinent 

to the mootness inquiry.” Under Chafin, then, Defendant’s motion to dismiss the 

case as moot is not the proper vehicle to litigate the substantive merits of Plaintiffs’ 

constitutional claims. Rather, Plaintiffs should be permitted to develop a record 

challenging the constitutionality of the new policy and present it to the Court in the 

full course of litigation. In other words, there is still a “live controversy” between 

the parties: If Plaintiffs are correct in their belief that the “updated” policy remains 

unconstitutional, this Court will be “able to affect the legal relations between the 

parties.” Cam I, 460 F.3d at 719-20. For that reason, this case is not moot.

CONCLUSION

Defendant’s motion for judgment on the pleadings on grounds of mootness 

should be denied.

Respectfully submitted,

/s/ Michael F. Derksen

Case 2:15-cv-11834-NGE-EAS ECF No. 57, PageID.589 Filed 04/04/16 Page 28 of 30
22

Daniel S. Korobkin (P72842)

Jay D. Kaplan (P38197)

Michael J. Steinberg (P43085)

American Civil Liberties Union 

 Fund of Michigan

2966 Woodward Ave.

Detroit, MI 48201

(313) 578-6824

dkorobkin@aclumich.org

jkaplan@aclumich.org

msteinberg@aclumich.org

John A. Knight

American Civil Liberties Union 

 Foundation

180 N. Michigan Avenue, Suite 2300

Chicago, IL 60606

(312) 201-9740

jaknight@aclu.org 

Steven R. Gilford

Michael F. Derksen

Jacki L. Anderson

PROSKAUER ROSE LLP

70 West Madison, Suite 3800

Chicago, IL 60602

(312) 962-3550

sgilford@proskauer.com

mderksen@proskauer.com

jlanderson@proskauer.com

Attorneys for Plaintiffs

Dated: April 4, 2016

Case 2:15-cv-11834-NGE-EAS ECF No. 57, PageID.590 Filed 04/04/16 Page 29 of 30
CERTIFICATE OF SERVICE

I hereby certify that on April 4, 2016, the foregoing document and its 

attachments were filed electronically using the Court’s ECF system, which will 

provide electronic notice to all counsel of record.

/s/ Michael F. Derksen

Case 2:15-cv-11834-NGE-EAS ECF No. 57, PageID.591 Filed 04/04/16 Page 30 of 30