UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

EMANI LOVE, et al. Case No. 15-cv-11834

Plaintiffs, Hon. Nancy G. Edmunds

v. Mag. Elizabeth A. Stafford

RUTH JOHNSON,

Defendant.

PLAINTIFFS’ RESPONSE TO DEFENDANT’S MOTION TO DISMISS

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................... ii

FACTUAL BACKGROUND....................................................................................1

ARGUMENT.............................................................................................................4

I. Plaintiffs Have Adequately Pled a Violation of Their Constitutional 

Right to Privacy.....................................................................................5

II. Plaintiffs Have Adequately Pled That Defendant’s Policy Violates 

Their First Amendment Rights............................................................11

III. Plaintiffs Have Adequately Pled That the Driver’s License Policy 

Violates the Equal Protection Clause of the Fourteenth Amendment.16

IV. Plaintiffs Have Adequately Pled That Defendant’s Policy Violates 

Their Right to Interstate Travel...........................................................20

V. Plaintiffs Have Adequately Pled That Defendant’s Policy Violates 

Their Due Process Right to Avoid Forced Medical Treatment. .........23

VI. Plaintiffs Have Adequately Pled That Defendant’s Policy Fails Even 

Rational Basis Review. .......................................................................25

CONCLUSION........................................................................................................31

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TABLE OF AUTHORITIES

Page(s)

CASES

Attorney Gen. of New York v. Soto-Lopez,

476 U.S. 898 (1986)............................................................................................21

Axson—Flynn v. Johnson,

356 F.3d 1277 (10th Cir. 2004) ..........................................................................13

Back v. Hastings On Hudson Union Free Sch. Dist.,

365 F.3d 107 (2d Cir. 2004) ...............................................................................19

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007)..............................................................................................5

Bloch v. Ribar,

156 F.3d 673 (6th Cir. 1998) .......................................................................passim

C.N. v. Wolf,

410 F. Supp. 2d 894 (C.D. Cal. 2005)................................................................11

Califano v. Westcott,

443 U.S. 76 (1979)..............................................................................................18

City of Cleburne, Tex. v. Cleburne Living Ctr.,

473 U.S. 432 (1985)......................................................................................16, 25

Crump v. Curtis,

50 F. App’x 217 (6th Cir. 2002)...........................................................................9

Davis v. Prison Health Servs.,

679 F.3d 433 (6th Cir. 2012) ..............................................................................25

Dean v. United States,

436 F. Supp. 2d 485 (E.D.N.Y 2006).................................................................27

DeBoer v. Snyder,

772 F.3d 388 (6th Cir. 2014), rev’d sub nom. Obergefell v. 

Hodges, 135 S.Ct. 2584 (2015) ..........................................................................21

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Derungs v. Wal-Mart Stores, Inc.,

374 F.3d 428 (6th Cir. 2004) ..............................................................................19

Doe ex rel. Doe v. Yuntis,

No. 001060A, 2000 WL 33162199 (Mass. Super. Ct. Oct. 11, 

2000), aff’d sub nom. Doe v. Brockton Sch. Comm., No. 2000-J638, 2000 WL 33342399 (Mass. App. Ct. Nov. 30, 2000) ................................14

Doe v. Bell,

754 N.Y.S.2d 846 (Sup. Ct. 2003)......................................................................14

Forbush v. Wallace,

341 F. Supp. 217 (M.D. Ala. 1971), aff’d, 405 U.S. 970 (1972) .......................27

G & V Lounge v. Mich. Liquor Control Comm’n,

23 F.3d 1071 (6th Cir. 1994) ..............................................................................10

Glen v. Brumby,

663 F.3d 1312 (11th Cir. 2011) ..........................................................................19

Hayes v. Bd. of Regents of Kentucky State University,

495 F.2d 1326 (6th Cir. 1974) ......................................................................21, 22

Hooper v. Bernadillo Cty. Assessor,

472 U.S. 612 (1985)............................................................................................30

J.E.B. v. Ala. ex rel. T.B.,

511 U.S. 127 (1994)............................................................................................18

K.L. v. State of Alaska, Dep’t of Admin., Div. of Motor Vehicles,

No. 3AN-11-05431 CI, 2012 WL 2685183 (Alaska Super. Ct. Mar. 

12, 2012) ......................................................................................................passim

Kallstrom v. City of Columbus,

136 F.3d 1055 (6th Cir. 1998) .....................................................................passim

Lebron v. Sec’y of the Fla. Dep’t of Children & Families,

772 F.3d 1352 (11th Cir. 2014) ..........................................................................24

Lee v. Willey ̧

No. 10-12625, 2012 WL 4009629 (E.D. Mich. Aug. 10, 2012) ..........................9

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Littlejohn v. Rose,

768 F.2d 765 (6th Cir. 1985) ........................................................................10, 24

Metropolitan Life Ins. Co. v. Ward,

470 U.S. 869 (1985)............................................................................................27

Minnesota v. Clover Leaf Creamery Co.,

449 U.S. 456 (1981)............................................................................................28

Nguon v. Wolf,

517 F. Supp. 2d 1177 (C.D. Cal. 2007)..............................................................11

Nixon v. Adm’r of Gen. Servs.,

433 U.S. 425 (1977)..............................................................................................5

Obergefell v. Hodges,

135 S. Ct. 2584 (2015)..........................................................................................6

Paige v. Coyner,

614 F.3d 273 (6th Cir. 2010) ................................................................................5

Perry v. Sindermann,

408 U.S. 593 (1972)............................................................................................10

Planned Parenthood v. Daugaard,

799 F. Supp. 2d 1048 (D.S.D. 2011)..................................................................13

Pleasant Grove City v. Summum,

555 U.S. 460 (2009)............................................................................................15

Powell v. Schriver,

175 F.3d 107 (2d Cir. 1999) .................................................................................8

Riley v. Nat’l Fed’n of the Blind of N.C., Inc.,

487 U.S. 781 (1988)................................................................................12, 13, 16

Romer v. Evans,

517 U.S. 620 (1996)......................................................................................25, 27

Rumsfeld v. Forum for Academic and Institutional Rights, Inc.,

547 U.S. 47 (2006)........................................................................................12, 14

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Saenz v. Roe,

526 U.S. 489 (1999)................................................................................20, 21, 22

Schroer v. Billington,

577 F. Supp. 2d 293 (D.D.C. 2008)....................................................................19

Sell v. United States,

539 U.S. 166 (2003)............................................................................................23

Somers v. Superior Court of San Francisco City and Cnty., 

172 Cal. App. 4th 1407 (2009).........................................................17

Sterling v. Borough of Minersville, 

232 F.3d 190 (3d Cir. 2000)............................................................10

U.S. Citizens Ass’n v. Sebelius,

705 F.3d 588 (6th Cir. 2013) ..............................................................................24

United States DOJ v. Reporters Comm. for Freedom of Press,

489 U.S. 749 (1989)............................................................................................11

United States v. Virginia,

518 U.S. 515 (1996)......................................................................................18, 20

W. Va. Bd. of Educ. v. Barnette,

319 U.S. 624 (1943)......................................................................................11, 13

Walker v. Texas Division, Sons of Confederate Veterans, Inc.,

135 S. Ct. 2239 (2015)..................................................................................15, 16

Whalen v. Roe,

429 U.S. 589 (1977)........................................................................................5, 23

Wilson v. Phoenix House,

978 N.Y.S.2d 748 (Sup. Ct. 2013)........................................................................9

Wooley v. Maynard,

430 U.S. 705 (1977)................................................................................12, 13, 16

STATUTES

Mich. Comp. Laws § 168.495..................................................................................12

Mich. Comp. Laws § 168.497c............................................................12

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Mich. Comp. Laws § 168.509r............................................................12

Mich. Comp. Laws § 211.7u...............................................................12

Mich. Comp. Laws § 257.311.............................................................12

Mich. Comp. Laws § 257.324 (1)(a) & (2)........................................................29, 30

Mich. Comp. Laws § 333.2831(c)...........................................................................28

Mich. Comp. Laws § 427.304............................................................12

Mich. Comp. Laws § 445.486............................................................12

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OTHER AUTHORITIES

28 C.F.R. § 115.42(c)...............................................................................................30

Alaska Constitution..................................................................................................65

First Amendment...............................................................................................passim

Fourth Amendment ..................................................................................................24

Fourteenth Amendment ...............................................................................16, 20, 22

Applying for a Licence or ID? Applicant Checklist, Ruth Johnson, 

Secretary of State, available at 

http://www.michigan.gov/sos/0,4670,7-127-

1627_8669_9040_9043-312849--,00.html.....................................................3, 28

Bill of Rights............................................................................................................11

Rule 12(b)(6)..............................................................................................................4

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CONCISE STATEMENT OF THE ISSUES PRESENTED

1. Whether Plaintiffs have adequately pled that Defendant’s policy requiring an 

amended birth certificate to correct the sex designation on their Michigan 

driver’s license or state identification card (“Policy”) violates Plaintiffs’ 

constitutionally protected right to privacy in that the Policy forces Plaintiffs to 

reveal the sex they were assigned at birth and their transgender status to 

complete strangers causing substantial risk of harm and causing disclosure of 

intimate personal information, stigma, and scrutiny regarding their bodies?

2. Whether Plaintiffs have adequately pled that Defendant’s Policy violates the 

Plaintiffs’ First Amendment rights in that the Policy compels Plaintiffs to 

communicate private information regarding their birth-assigned sex and 

transgender status to complete strangers and to disseminate Defendant’s opinion 

that they are one sex, when they are the other?

3. Whether Plaintiffs have adequately pled that Defendant’s Policy violates the 

Equal Protection Clause: (a) by making it possible for persons born in some 

states to change the sex designation on their license without having gender 

confirmation surgery or obtaining a court order, while making it impossible or 

unduly burdensome for Plaintiffs to change the sex designation on their license 

because they were born in states that will not change the sex on a birth 

certificate or require surgery or a court order to do so; and (b) by making it 

possible for non-transgender persons to correct identifying characteristics on 

their license without producing evidence of the change while transgender 

individuals are required to produce an amended birth certificate?

4. Whether Plaintiffs have adequately pled that Defendant’s Policy violates the 

right to interstate travel of Plaintiffs Tina Seitz, Codie Stone, E.B., and K.S. by 

making it impossible for them to correct the sex designation on their license or 

requiring them to secure a court order to do so because they were born outside 

of Michigan, when persons born in Michigan are able to correct the sex 

designation on their license by amending their birth certificate and without 

obtaining a court order?

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5. Whether Plaintiffs have adequately pled that Defendant’s Policy violates the 

Due Process Clause by forcing Plaintiffs Emani Love and A.M. to undergo 

surgery in order to correct the sex designation on their license?

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FACTUAL BACKGROUND

The Plaintiffs

Plaintiffs are six Michiganders who are unable to correct the sex designation 

on their driver’s license or state identification cards (“State IDs”, “IDs” or 

“license”) to accurately match their sex because of Defendant’s policy. Compl.

¶¶ 5, 52, 60, 70, 77, 85, 92. Defendant’s policy for changing the sex on State IDs

(“Driver’s License Policy” or “Policy”) requires transgender individuals to amend 

the sex on their birth certificates in order to correct the sex on their IDs. Id. ¶ 3.

The result is a policy that varies by Michiganders’ state of birth. Id. ¶¶ 5-6. 

For those such as Tina Seitz, Codie Stone, and E.B., who were born in a state that 

does not allow changes to the sex designation on birth certificates, it is impossible 

to ever correct the sex on their licenses. Id. ¶¶ 5a, 67-69, 75-76, 83-84. Persons 

such as K.S., whose birth state requires a court order to amend the sex on a birth 

certificate, face a significant burden on their ability to correct the sex on their 

license that persons born in Michigan and other states do not face. Id. ¶¶ 5b, 91. 

Those born in Michigan face another significant burden on correcting the sex on 

their license: the requirement that they undergo gender confirmation surgery 

(otherwise known as “sex reassignment surgery”) to amend the sex on their birth 

certificate, even though Emani Love and A.M. have no current medical need, do 

not have insurance coverage and/or do not have the money to pay out-of-pocket for 

such surgery. Id. ¶¶ 5c, 51, 56. In contrast, Michiganders born in states where 

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surgery is not required to amend the sex on their birth certificate are able to secure 

an accurate Michigan license and without being forced to undergo surgery they 

may not want or need. Id. ¶ 7. 

Plaintiffs were all assigned a sex at birth that does not match their gender 

identity—their innate understanding of themselves as male or female. Id. ¶¶ 23, 

47, 54, 62, 72, 79, 87. All Plaintiffs have transitioned to living full time consistent 

with their gender identity. Id. ¶¶ 48-49, 55, 57, 58, 63-65, 73-74, 80-81, 88-89. 

All have State IDs with photos and names that reflect their sex, while the sex

marker on the ID is inaccurate and conflicts with their appearance, identity and 

lived sex. Id. ¶¶ 52, 60, 70, 77, 85, 92.

Sex and Gender

In response to Plaintiffs’ argument that the sex markers on their IDs are 

inaccurate, Defendant argues in her brief that “gender” and “sex” are different and

that “sex” on a Michigan license refers only to “[a] person’s biological status as 

either male or female,” which in turn is “based primarily on physical attributes 

such as chromosomes, hormone prevalence, and external and internal anatomy.” 

Def. Br. 1-2 (citation and quotation omitted). Defendant’s proposed definition of 

“sex,” however, directly contravenes the scientific and medical consensus that 

multiple factors determine a person’s sex in addition to physical components—the 

most important of which is gender identity—or a person’s core identification with 

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a particular sex. Compl. ¶ 26. Defendant’s own practice, moreover, is to use the 

term “gender” in the context of identity documents, not to draw an illusory 

distinction between “gender” and “sex.” Id. ¶¶ 3 & n.2, 43c.

In any event, even using Defendant’s proposed definition of sex, 

Defendant’s Policy does not actually result in State IDs accurately reflecting a 

person’s sex. Two individuals with the same physical attributes will have different 

sex markers on their license if one of them was born in a state allowing birth 

certificate amendments and one was not. See id. ¶¶ 5-6. Defendant would like to 

defend a policy that reflects a person’s “physical attributes,” but that is not the 

Policy she is enforcing.1

Defendant’s Policy and Its Harm to Plaintiffs

Forcing Plaintiffs and other transgender individuals to carry identification 

documents that identify them by the wrong sex harms them in numerous ways. It 

undermines their ability to function in their lived sex, discloses their private 

 1 Additionally, Defendant’s Policy only applies to persons who are seeking to 

renew or change an existing license. Compl. ¶¶ 2, 6; see also Def. Br. Ex. A. In 

contrast, there is no amended birth certificate required for a transgender person to 

obtain their first Michigan license listing the correct sex, since a passport may be 

presented for identification purposes and the sex listed on a passport may be 

corrected without having surgery or obtaining a court order. Compl. ¶¶ 6, 45a; see 

also Applying for a License or ID? Applicant Checklist, Ruth Johnson, Secretary 

of State, available at http://www.michigan.gov/sos/0,4670,7-127-

1627_8669_9040_9043-312849--,00.html. Consequently, a transgender man who 

already had “M” on his passport when he applied for his first ID in Michigan could 

have the same “physical attributes” as a transgender man whose existing Michigan 

driver’s license incorrectly designates him as female, but under Defendant’s Policy 

they would have different sex markers on their Michigan IDs.

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information, places them at risk of discrimination, harassment and injury, interferes 

with their medical treatment, and causes them psychological injury by labeling 

them by the wrong sex. Compl. ¶¶ 35-37, 93-104. For example, in a national study 

of transgender people, 3% of respondents reported being physically attacked or 

assaulted when they showed an ID document that failed to match their identity and 

expression. Id. ¶ 94. Some Plaintiffs have had hostile and embarrassing 

experiences when having to produce a license with the wrong sex on it. Id. ¶¶ 99-

103. Others have gone to great lengths to avoid harassment, embarrassment, or 

discrimination. Id. ¶¶ 98-100, 103. All fear the adverse reaction or discrimination 

they might experience after producing a license with the wrong sex on it. Id. ¶¶ 97, 

99-102. 

Defendant’s Policy is more restrictive than the policy previously in place in 

Michigan, which prior to 2003 did not require an amended birth certificate or 

gender confirmation surgery to correct the gender on a license. Compl. ¶ 42. It is 

also more restrictive than policies established by the federal government and 

numerous states that are in line with current scientific knowledge and

recommendations of the major medical associations. Id. ¶ 45. 

ARGUMENT

When deciding a motion to dismiss under Rule 12(b)(6), courts “must 

construe the complaint in the light most favorable to the plaintiff and must accept 

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all the factual allegations contained in the complaint as true.” Paige v. Coyner, 614 

F.3d 273, 277 (6th Cir. 2010). To survive a motion to dismiss, a “complaint need 

contain only ‘enough facts to state a claim to relief that is plausible on its face.’” 

Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 

Plaintiffs’ complaint adequately pleads violations of their rights to 

informational privacy, free speech, equal protection, the right to travel, and 

autonomy in medical decision-making. 

I. Plaintiffs Have Adequately Pled a Violation of Their Constitutional 

Right to Privacy.

There is a “constitutionally protected ‘zone of privacy’” that includes an 

“individual interest in avoiding disclosure of personal matters.” Whalen v. Roe, 

429 U.S. 589, 598-99 (1977); see also Nixon v. Adm’r of Gen. Servs., 433 U.S. 

425, 457, 465 (1977) (recognizing “constitutionally protected privacy rights in 

matters of personal life”). The Sixth Circuit has held that the Constitution protects

information maintained as private to preserve a person’s “personal security and 

bodily integrity,” Kallstrom v. City of Columbus, 136 F.3d 1055, 1062 (6th Cir. 

1998), and information that is highly intimate, such as details about “private sexual 

matters,” Bloch v. Ribar, 156 F.3d 673, 685 (6th Cir. 1998). Like the plaintiffs in 

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Kallstrom and Bloch, Plaintiffs’ privacy interests in this case are constitutionally 

protected.2

Defendant’s Policy requires Plaintiffs to disclose the sex they were assigned 

at birth rather than their lived sex every time they show their ID. Because the 

Policy requires Plaintiffs to carry an ID with a sex that conflicts with their lived 

sex, Defendant forces them to reveal their transgender status to complete strangers. 

See K.L. v. State of Alaska, Dep’t of Admin., Div. of Motor Vehicles, No. 3AN-11-

05431 CI, 2012 WL 2685183, at *6 (Alaska Super. Ct. Mar. 12, 2012) (When a 

transgender woman “furnishes a driver’s license bearing a male sex designation, 

the discrepancy between the license and their physical appearance can lead to the 

forced disclosure of the person’s transgender[] status.”).

In Kallstrom, the Sixth Circuit held that disclosure of police officers’ home 

addresses to counsel for defendants they had testified against put the officers and 

their families at serious personal risk, thereby “ris[ing] to constitutional 

dimensions.” 136 F.3d at 1063. Similarly, disclosing Plaintiffs’ transgender status 

on Plaintiffs’ IDs places them at serious risk of physical harm, endangering their 

 2 Plaintiffs are not asserting a constitutional “right to change the sex designation on 

a driver’s license,” Def. Br. 4, but rather the violation of an established right to 

informational privacy regarding highly intimate personal facts. As a result, 

Defendant’s arguments against expanding substantive due process, Def. Br. 3-4, 9-

10, are inapposite. Cf. Obergefell v. Hodges, 135 S. Ct. 2584, 2602 (2015) (“If 

rights were defined by who exercised them in the past, then received practices 

could serve as their own continued justification and new groups could not invoke 

rights once denied.”). 

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personal security and bodily integrity and thereby rising to constitutional 

dimensions. Compl. ¶¶ 94-97. 

Defendant seeks to distinguish Kallstrom by claiming that the risks alleged 

by Plaintiffs involve “hypothetical” risks to “transgender individuals in general.” 

Def. Br. 7. However, both Plaintiffs and the officers in Kallstrom face “substantial 

risk of serious bodily harm, possibly even death, from a perceived likely threat.” 

136 F.3d at 1064. The police officers faced a risk from disclosure of information to

a discrete group of gang members, 136 F.3d at 1059, whereas Plaintiffs face a 

known risk from disclosure of their transgender status to all who see their licenses. 

Compl. ¶¶ 94-97. If anything, Plaintiffs’ inability to identify a specific group of 

persons who represent a security risk for them enhances, rather than reduces, the 

privacy violation, since Plaintiffs are unable to know who among all the people 

who see their license may try to harm them. 

In addition, forcing Plaintiffs to reveal their transgender status violates their 

constitutional privacy interests by revealing highly sensitive information of a 

sexual or intimate nature analogous to the information about a rape victim revealed 

in Bloch. In finding that such disclosure violated the victim’s constitutional rights, 

the Sixth Circuit relied on the “historic social stigma . . . attached to victims of 

sexual violence” and the fact that revealing information about a rape “subject[s] a 

victim to criticism and scrutiny concerning her sexuality and personal choices 

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regarding sex.” Bloch, 156 F.3d at 685. A person’s “sexuality and choices about 

sex . . . are interests of an intimate nature which define significant portions of our 

personhood,” so that “[p]ublically revealing information regarding these interests 

exposes an aspect of our lives that we regard as highly personal and private.” Id. 

Similarly, Plaintiffs face historic social stigma and their perceived “choices” 

regarding sex subject them to criticism and scrutiny regarding their bodies. 

Transgender people are often questioned about their transition and their anatomy 

after their status as transgender is revealed. Compl. ¶ 97. Further, transgender 

persons’ decisions regarding their gender transition as well as the details associated 

with that transition are deeply personal and of a sexual nature, placing it at the core 

of informational privacy under Bloch. Compl. ¶ 30. In Powell v. Schriver, 175 F.3d 

107, 111-12 (2d Cir. 1999), the Second Circuit held that “individuals who are 

transsexuals are among those who possess a constitutional right to maintain 

medical confidentiality,” even in the prison context. It reached that conclusion 

because “transsexualism is the unusual condition that is likely to provoke both an 

intense desire to preserve one's medical confidentiality, as well as hostility and 

intolerance from others” and “[t]he excruciatingly private and intimate nature of 

transsexualism, for persons who wish to preserve privacy in the matter, is really 

beyond debate.” Id. (internal quotation marks and citations omitted); see also K.L., 

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2012 WL 2685183, at *6 (“The Court agrees that one’s transgender[] status is 

private, sensitive personal information” and “is entitled to protection.”).

Defendant argues that Plaintiffs’ claim is governed by the decision in Lee v. 

Willey ̧ No. 10-12625, 2012 WL 4009629 (E.D. Mich. Aug. 10, 2012), in which 

the court rejected a privacy claim based on disclosure of sexual orientation because 

plaintiff “has not cited any case law nor has this Magistrate Judge found any case 

law holding that disclosure of Plaintiff’s sexual orientation rises to the level of a 

breach of a right recognized as ‘fundamental’ under the Constitution.” Id. at *10. 

Lee does not govern here for at least three reasons. First, Lee involved a prison 

setting and it is well established that a prisoner’s “privacy rights are less than those 

enjoyed by non-prisoners.” Crump v. Curtis, 50 F. App’x 217, 218 (6th Cir. 2002). 

Second, sexual orientation is not the same as gender identity, and the stigma and 

risks faced by transgender people are greater than the stigma and risk of violence 

faced by lesbians and gay men.3 Third, case law does indeed hold that compelled 

disclosure of a person’s transgender status violates their right to informational 

privacy. See, e.g., Powell, 175 F.3d at 111-12. Moreover, notwithstanding Lee, 

 3 Compl. ¶ 95 & n.15 (citing report documenting higher incidence of violence 

experienced by transgender persons as compared to lesbian, gay, bisexual, queer, 

and HIV-impacted persons); cf. Wilson v. Phoenix House, 978 N.Y.S.2d 748, 754-

55 (Sup. Ct. 2013) (“The legal and political community has made great strides in 

the last decade toward assuring legal equality for lesbian, gay and bisexual 

persons. . . . However, with regard to transgender[ ] and other gender 

nonconforming people, there has been far less progress in addressing their legal 

rights.”).

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such case law also exists in the context of sexual orientation. See Sterling v. 

Borough of Minersville, 232 F.3d 190 (3d Cir. 2000).

This Court should also reject Defendant’s argument that Plaintiffs’ privacy 

interests are not entitled to constitutional protections because Plaintiffs 

“voluntarily” obtained their licenses. Def. Br. 7. A person may not be forced to 

choose between a valuable government benefit – either a job or a license – and a 

constitutionally protected right. See Perry v. Sindermann, 408 U.S. 593, 597 

(1972); G & V Lounge v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1077 (6th 

Cir. 1994) (city’s contract with lounge unenforceable because it “constituted an 

attempt to condition Plaintiff’s receipt of a benefit upon Plaintiff’s waiver of its 

right to free expression”); Littlejohn v. Rose, 768 F.2d 765, 769-70 (6th Cir. 1985) 

(“involvement in activity shielded by the constitutionally protected rights of 

privacy and liberty constitutes an impermissible reason for denying 

employment”).4

 4 Defendant asserts that the privacy claims of the three Plaintiffs who disclosed 

their names are especially weak. Def. Br. 9. Although these Plaintiffs’ decision not 

to remain anonymous as part of this litigation may be considered in evaluating 

their privacy interests, it should not be regarded as dispositive given the contextspecific nature of the right to privacy. Plaintiffs assert a right to privacy because 

Defendant’s Policy forces them to make repeated disclosures of their transgender 

status to persons who are unlikely to have seen press reports about this case and 

who may subject them to harassment, discrimination, or violence. Even after 

disclosure of information in one setting, an individual may retain “a reasonable 

expectation of privacy” because “[t]he fact that an event is not wholly private does 

not mean that an individual has no interest in limiting disclosure or dissemination

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In addition, Defendant fails to explain why a government policy that forces 

persons to disclose their private information is a less serious privacy violation than 

the government’s direct disclosure of the information. The results in Kallstrom and 

Bloch would have been no different had the government forced the plaintiffs to 

disclose the confidential information themselves. Even assuming that the sex 

marker on Plaintiffs’ licenses is not direct government disclosure, forcing Plaintiffs

to disclose their transgender status to third parties is at least as serious an incursion 

on their privacy as a direct release of the information. Plaintiffs are required to 

reveal their transgender status to numerous strangers whose reaction may be 

violent in settings where there may be no one else available to assist them or call 

for help.

Because Defendant’s Policy infringes upon Plaintiffs’ constitutionally 

protected privacy rights, it must be reviewed under strict scrutiny. Kallstrom, 136 

F.3d at 1064.

II. Plaintiffs Have Adequately Pled That Defendant’s Policy Violates Their 

First Amendment Rights.

The First Amendment prohibits the government from forcing an individual 

to convey the government’s message. W. Va. Bd. of Educ. v. Barnette, 319 U.S. 

624 (1943). Just as the “Bill of Rights . . . guards the individual’s right to speak his 

 

of information.” C.N. v. Wolf, 410 F. Supp. 2d 894, 903 (C.D. Cal. 2005) (quoting 

United States DOJ v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 770 

(1989)); Nguon v. Wolf, 517 F. Supp. 2d 1177, 1191 (C.D. Cal. 2007).

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12

own mind” so too does it prohibit “public authorities to compel him to utter what is 

not in his mind.” Id. at 634; see also Wooley v. Maynard, 430 U.S. 705, 714 (1977) 

(“[f]reedom of thought protected by the First Amendment . . . includes both the 

right to speak freely and the right to refrain from speaking at all”). This protection 

extends to both “compelled statements of fact” and “compelled statements of 

opinion.” Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 

47, 62 (2006); see also Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 

797-98 (1988).

Defendant’s Policy compels Plaintiffs to identify themselves by the wrong 

sex (e.g., by compelling Plaintiff Codie Stone to communicate the message that he 

is female even though he is male) and to broadcast private information regarding 

their birth-assigned sex and their transgender status to complete strangers.5 Such 

information becomes known to strangers because the sex marker on Plaintiffs’ 

licenses conflicts with their appearance and the names and photos on their licenses. 

Compl. ¶¶ 52, 60, 70, 77, 85, 92. If the requirement to disclose factual information 

about “the gross percentage of revenues retained [by a fundraiser] in prior 

charitable solicitations” imposes an unconstitutional burden on speech, Riley, 487 

 5 People repeatedly need to use their license to verify their ID. Compl. ¶¶ 36, 93. 

See also Mich. Comp. Laws §§ 168.495, 168.497c, 168.509r, 211.7u, 257.311, 

427.304, 445.486; Mich. Admin. Code R. 333.103, 338.928, 338.1009a, 460.102, 

460.1602, 325.9054, 325.9074, 325.166 (requiring a State ID to prove identity or 

as one method to prove a person’s identity).

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U.S. at 784, then so too does the Policy’s requirement that Plaintiffs identify 

themselves by the wrong sex and reveal deeply personal information about their 

transgender status. 

Defendant suggests that the prohibition on compelled speech is limited to 

“ideological” speech, Def. Br. 11, but Riley shows that free speech protections are 

not so limited. “The constitutional harm—and what the First Amendment 

prohibits—is being forced to speak rather than remain silent.... This harm occurs 

regardless of whether the speech is ideological.” Axson-Flynn v. Johnson, 356 F.3d 

1277, 1284 n.4 (10th Cir. 2004) (citations omitted). 

Defendant further claims that the First Amendment is not violated by the 

compelled statement of fact resulting from her Policy unless “other protected 

expression in the license . . . is burdened by that disclosure.” Def. Br. 13. But that 

is not the standard.

Barnette’s and Wooley’s holdings did not depend on the compelled speech 

burdening other protected expression, and the same is true of a compelled 

disclosure of fact. In Planned Parenthood v. Daugaard, 799 F. Supp. 2d 1048 

(D.S.D. 2011), for example, a district court concluded that a law that required

women to disclose to a third party intimate facts about their decision to have an 

abortion likely violated the First Amendment’s protections against compelled 

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speech. Id. at 1055-58.6 It did so even though the compelled disclosure failed to

burden any other protected expression. 

In any event, forcing a transgender person to produce a license with the 

wrong sex on it does in fact burden constitutionally protected speech. Requiring 

Plaintiffs to carry the government’s message about their sex—that they are male or 

female when they are not—prevents them from communicating their own 

constitutionally protected messages. For example, Codie Stone’s ability to convey 

his constitutionally protected message that he is male, even though he was assigned 

the wrong sex at birth, is undermined by being compelled to carry the 

government’s message that he is female. See Doe v. Bell, 754 N.Y.S.2d 846, 851 

(Sup. Ct. 2003) (transgender student’s decision to wear female clothes conveyed 

particularized message about her gender identity); accord Doe ex rel. Doe v. 

Yuntis, No. 001060A, 2000 WL 33162199, at *6 (Mass. Super. Ct. Oct. 11, 2000), 

aff’d sub nom. Doe v. Brockton Sch. Comm., No. 2000-J-638, 2000 WL 33342399 

(Mass. App. Ct. Nov. 30, 2000). 

 6 Rumsfeld is easily distinguished. The Solomon Amendment did “not dictate the 

content of [law schools’] speech at all” but only required law schools to offer the 

same speech for military recruiters that they offered to other recruiters and allowed 

law schools to dissociate themselves from the military recruiters. 547 U.S. at 62, 

65. In contrast, Defendant’s Policy dictates that Plaintiffs’ licenses disclose the 

wrong sex and that they are transgender, and any efforts by Plaintiffs to distance 

themselves from the impact of displaying their IDs would be useless.

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Defendant’s Policy also requires Plaintiffs to communicate Defendant’s 

opinion that they are a sex which they are not. Defendant argues “there is no 

opinion being expressed in the display of sex on [Plaintiffs’] driver’s license—only 

a simple statement of factual data.” Def. Br. 12. According to Defendant, “the 

identification of sex on the driver’s license[ ] is only a description of the person’s 

physical body, not their gender identity.” Def. Br. 24. But that is simply not an 

accurate description of Defendant’s Policy. For persons seeking to correct the sex 

on their existing license, Michigan driver’s licenses display the sex that is currently 

listed on a person’s birth certificate. If a transgender person was born in a state that 

allows individuals to change the sex on their birth certificate without having 

gender confirmation surgery, then they will receive a license that lists their correct 

sex regardless of what their “physical body” looks like. In other words, two 

different transgender people with similar physical bodies will receive different sex 

designations on their Michigan license based solely on where they were born.

7

For this reason, a designation of M or F on a transgender individual’s 

Michigan license has no factual connection to the person’s “physical body” or 

 7 In this case, Defendant cannot argue that Plaintiff’s request not to be compelled to 

communicate a sex with which they do not identify is a “‘message with which [the 

state] do[es] not wish to be associated.” Def. Br.13 (citing Walker at *18 (citing 

Pleasant Grove City v. Summum, 555 U.S. 460, 471 (2009)). Defendant already 

allows people applying for a new ID or born in states that do not proscribe or place 

undue burdens on changing the sex designation in birth certificates to be free from 

such government-compelled message. 

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chromosomes. Rather, the M or F designation reflects the government’s opinion 

about whether they should be recognized as a man or a woman. Thus, Defendant’s 

policy forces Plaintiffs “as part of [their] daily li[ves]—indeed constantly while . . . 

in public view—to be an instrument for fostering public adherence to an 

ideological point of view [they] find[] unacceptable.” Wooley v. Maynard, 430 

U.S. 705, 715 (1977). Such government-compelled communication about 

something as fundamental as a person’s sex cannot be squared with the First 

Amendment.8

Because Defendant’s Policy infringes upon Plaintiffs’ First Amendment 

rights, the Policy must be reviewed under strict scrutiny. Riley, 487 U.S. at 800.

III. Plaintiffs Have Adequately Pled That the Driver’s License Policy 

Violates the Equal Protection Clause of the Fourteenth Amendment. 

“The Equal Protection Clause . . . is essentially a direction that all persons 

similarly situated should be treated alike.” City of Cleburne, Tex. v. Cleburne 

Living Ctr., 473 U.S. 432, 439 (1985) (quotation and citation omitted). The 

Driver’s License Policy violates equal protection by treating individuals seeking to 

correct the sex on their State ID differently based on the person’s state of birth.

 8 The Supreme Court’s ruling in Walker v. Texas Division, Sons of Confederate 

Veterans, Inc., 135 S. Ct. 2239 (2015) does not affect Plaintiffs compelled-speech 

claim. Relying on Walker, Defendant argues that “identification information alone 

[is] not speech,” Def. Br.13 of any sort, and compares the “state names and vehicle 

identification numbers” on license plates discussed in Walker to “a person’s sex as 

displayed on their driver’s license.” Id. at 13-14. But this is inapposite for the 

reasons discussed above—the sex listed on a Michigan driver’s license is not 

merely a fact, but Defendant’s opinion about each Plaintiff’s sex.

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Transgender people who are from a state that makes it impossible or difficult to 

amend the sex on their birth certificate are substantially similar to persons who 

were born in states where gender changes can be secured without undergoing 

surgery or seeking a court order. Yet the Policy treats these two groups differently. 

The Policy makes it possible for people who were born in a state that does 

not require surgery or a court order to correct the sex on their birth certificate to 

obtain a license with the correct sex designation, even if they have not had surgery 

or are unable to secure a court order. Compl. ¶¶ 4-6. On the other hand, the Policy 

makes it impossible or places serious burdens on transgender people who were 

born in a state that refuses to change the sex on a birth certificate, or requires 

surgery or a court order to amend the sex on their birth certificate. Id.

9

Moreover, the Policy treats transgender individuals differently from nontransgender individuals in that only they have to satisfy an additional evidentiary 

burden, in showing an amended birth certificate, in order to have an accurate ID. 

Plaintiffs are similarly situated to persons who wish to correct other identifying 

characteristics on their licenses, since transgender and non-transgender persons are 

 9 In Somers v. Superior Court of San Francisco City and Cnty., 172 Cal. App. 4th 

1407 (2009), the court addressed a similar equal protection and right to travel 

challenge to a law that required California-born residents seeking a change of the 

sex designation on their birth certificate to petition for that change in their county 

of residence. The court concluded that a law treating California-born transgender 

individuals who reside out of the state differently from California transgender 

resident who reside in California was unconstitutional, because there was “no 

rational basis for the disparate treatment.” Id. at 1416.

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alike in their need to have an accurate state driver’s license. However, nontransgender individuals do not have to present any proof in order to change other 

physical characteristics on their IDs.10

Defendant’s Policy applies explicitly to “changing sex,” Def. Br. Ex. A; 

Compl. ¶ 2, and determines whether Michiganders may have an M or F on their 

license. On its face, therefore, the Policy classifies based on sex. See United States 

v. Virginia, 518 U.S. 515, 555 (1996) (“[A]ll gender-based classifications today

warrant heightened scrutiny.”) (internal quotations marks omitted); see also

Califano v. Westcott, 443 U.S. 76, 83-85 (1979) (applying heightened scrutiny to 

sex-based classification even if the effects of its application are felt equally by men 

and women); J.E.B. v. Ala. ex rel. T.B., 511 U.S. 127 (1994) (striking down 

preemptory challenges based on gender-based assumptions as to both sexes, 

despite equal application of the rule as to men and women).

 10 Defendant argues that Plaintiffs are not similarly situated to Michiganders 

wanting to correct eye color or height because those characteristics are “visible and 

external” and “readily observable without invasive verification.” Def. Br. 16-

17. Sex, however, is readily observable, as reflected in Plaintiffs’ observable 

physical appearance, including breast development, facial hair, and body fat 

distribution, as well as their dress and hairstyle. See K.L., 2012 WL 2685183, at *7 

(“By not allowing transgender[ ] individuals to change their sex designation, their 

license will inaccurately describe the discernable appearance of the license holder 

by not reflecting the holder’s lived gender expression of identity.”) (Emphasis 

added). Any other physical characteristics of a transgender person, such as their 

genital status, are irrelevant for identification purposes, since they are “physical 

features which are concealed from and not apparently discernable to the public.” 

Id.

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Defendant’s Policy makes it impossible or extremely burdensome for some 

seeking to correct the sex on their existing licenses to do so. Thus the Policy 

discriminates against persons born in certain states on the basis of sex. “‘Sex-plus’ 

discrimination exists when a person is subjected to disparate treatment based not 

only on . . . sex, but on . . . sex considered in conjunction with a second 

characteristic.” Derungs v. Wal-Mart Stores, Inc., 374 F.3d 428, 439 n.8 (6th Cir. 

2004); see also Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 

119 (2d Cir. 2004) (discrimination against a woman who is a mother is sex 

discrimination “whether a claim is characterized as ‘sex plus’ or ‘gender plus,’” so 

long as “plaintiff provides evidence of purposefully sex-discriminatory acts”).

Defendant’s Policy discriminates against Plaintiffs on the basis of sex in denying 

them an accurate ID by burdening their ability to correct the sex on their license 

because of where they were born.

Defendant’s Policy also discriminates on the basis of sex because it denies 

only transgender persons the right to an accurate license. Compl. ¶ 39. See Glen v. 

Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011) (“[D]iscrimination against a 

transgender individual ... is sex discrimination.”). Finally, the Policy discriminates 

on the basis of sex, because it discriminates based on a person’s need to change the 

sex designation on a license. Cf. Schroer v. Billington, 577 F. Supp. 2d 293, 308 

(D.D.C. 2008) (holding in employment context that discrimination because of a 

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person’s change from one sex to another is discrimination “because of sex” for 

purposes of Title VII).

Classifications based on sex, such as Defendant’s Policy, must be reviewed 

under heightened scrutiny. Virginia, 518 U.S. at 555.

IV. Plaintiffs Have Adequately Pled That Defendant’s Policy Violates Their 

Right to Interstate Travel.

The Driver’s License Policy violates the right to interstate travel of Plaintiffs 

Tina Seitz, Codie Stone, and E.B., who were born in states that make it impossible 

to change the sex on their birth certificates, and of Plaintiff K.S., who was born in 

a state requiring him to secure a court order to amend the sex on his birth 

certificate. The Policy imposes insurmountable or significant burdens on those 

Plaintiffs due to their birth out of state as compared to persons born in Michigan. 

In Saenz v. Roe, 526 U.S. 489 (1999), the Supreme Court struck down a law 

that is very similar to Defendant’s Policy—a California law limiting the welfare 

benefits of a newly arrived family to the amount they received in their prior state of 

residence for the first year after their arrival. Id. at 492. The case involved the right 

of “travelers who elect to become permanent residents . . . to be treated like other 

citizens of that State.” Id. at 500. Laws that discriminate against permanent 

residents because they are newcomers violate the Privileges or Immunities Clause 

of the Fourteenth Amendment. Id. at 503-04. Disadvantaging a newcomer for not

living in a state on a fixed date—such as a person’s date of birth—violates the right 

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to travel in the same way as laws that discriminate based on the number of years a 

newcomer has lived in the new state, since the right is concerned with “equality of 

rights with every other citizen.” Id. at 504; see also Attorney Gen. of New York v. 

Soto-Lopez, 476 U.S. 898, 905 (1986) (Law favoring “veterans who were New 

York residents at a past fixed point over those who were not New York residents at 

the same point in their lives” violated the right to travel).

As with the law that set welfare benefit levels in California based on the law 

in newcomers’ former states of residence, Defendant’s Policy sets the rule for sex 

designation changes on Michigan licenses based on the rules for amending birth 

certificates in newcomers’ states of birth. Plaintiffs are challenging Defendant’s 

incorporation of out-of-state rules for changing the sex on a birth certificate as the 

criteria for securing an accurate Michigan license. Defendant’s argument that her 

policy “treats all Michiganders alike, regardless of whether there were born in 

Michigan or elsewhere,” Def. Br. 26, ignores the Policy’s practical effect. The 

same formalistic argument could have been made about the law struck down in 

Saenz. Both laws place newcomer residents from certain states at a disadvantage 

because of their adoption of laws of the newcomers’ prior states of residency—a 

quintessential right-to-travel violation.

Defendant cites Hayes v. Bd. of Regents of Kentucky State University, 495 

F.2d 1326 (6th Cir. 1974), and DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), 

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rev’d sub nom. Obergefell v. Hodges, 135 S.Ct. 2584 (2015), but both are easily 

distinguishable. Hayes, which pre-dates Saenz, involved the narrow issue of 

“whether voter registration is conclusive of citizenship as defined in the Fourteenth 

Amendment,” Hayes, 495 F.2d at 1327, rather than the right of newcomer 

permanent residents “to be treated like other citizens of that State,” Saenz, 526 

U.S. at 500; see also id. at 502 (“Permissible justifications for discrimination 

between residents and nonresidents are simply inapplicable to a nonresident’s 

exercise of the right to move into another State and become a resident of that 

State.”). To the extent that DeBoer has any persuasive authority after reversal, it is 

also distinguishable, since it involved a claim that states that refused to recognize 

the marriages of newly resident same-sex couples violated those couples’ right to 

travel. Unlike the Policy challenged in this case, those state marriage laws did “not 

punish out-of-state new residents in relation to its own born and bred.” DeBoer, 

772 F.3d at 420. There was no “differential treatment between the newly resident 

and the longstanding resident,” id., as there is in the present case.

Because Defendant’s Policy infringes upon the right to travel of Plaintiffs 

Seitz, Stone, E.B., and K.S., it must be reviewed under heightened scrutiny. Saenz, 

526 U.S. at 503-04.

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V. Plaintiffs Have Adequately Pled That Defendant’s Policy Violates Their 

Due Process Right to Avoid Forced Medical Treatment. 

Defendant’s Policy violates the substantive due process rights of Plaintiffs 

Emani Love and A.M., since it forces them to undergo medical treatment that is 

unwanted, unnecessary or unavailable to them. Compl. ¶¶ 51, 56, 136-37. For 

many transgender individuals, surgery is not medically necessary, may be 

contraindicated, and is cost-prohibitive. Id. ¶¶ 34, 135. Yet for a transgender 

person born in Michigan, the sex on their birth certificate cannot be changed unless 

they first undergo gender confirmation surgery. Id. ¶¶ 50, 59. 

The liberty interest protected by the due process clause includes an “interest 

in independence in making certain kinds of important decisions,” Whalen, 429 U.S. 

at 599-600 & n.26, including the right to refuse unwanted medical treatment. Sell 

v. United States, 539 U.S. 166, 179 (2003). Defendant’s Policy unjustifiably 

infringes on those constitutionally protected interests because it forces Plaintiffs 

Love and A.M. to undergo surgery in order to obtain an accurate State ID.

Defendant concedes that Plaintiffs “have a liberty interest in refusing 

unwanted medical treatment,” but asserts that “no medical treatment is being 

forced upon Plaintiffs” because her Policy does not literally require surgery. Def. 

Br. 27. However, it is undisputed that if a transgender person born in Michigan 

wishes to correct the sex marker on their driver’s license, they must first undergo a 

surgical procedure in order to amend their birth certificate. As discussed in Section 

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I supra, the government may not condition a person’s right to a government benefit 

on that person’s willingness to sacrifice their constitutional rights. See, e.g.,

Littlejohn, 768 F.2d at 769-70 (teacher may not be denied public employment 

because of exercise of constitutional right to end marriage through divorce); see 

also Lebron v. Sec’y of the Fla. Dep’t of Children & Families, 772 F.3d 1352, 

1376 (11th Cir. 2014) (statute conditioning person’s right to welfare on consent to 

warrantless, suspicionless drug test violated Fourth Amendment). In this case, 

Defendant’s Policy forces Plaintiffs to choose between an accurate license and an 

invasive medical procedure.

U.S. Citizens Ass’n v. Sebelius, 705 F.3d 588 (6th Cir. 2013), fails to bolster 

Defendant’s argument. The case challenged the requirement that individuals obtain 

health insurance. In contrast to Defendant’s Policy, “[t]he individual mandate does 

not implicate the fundamental liberty right,” since it “requires either the purchase 

of health insurance or the payment of a shared responsibility payment,” leaving 

“Plaintiffs . . . free to choose their medical providers and the medical treatments 

they will or will not accept.” Id. at 601.11

 11 Defendant incorrectly characterizes the relief Plaintiffs seek as an expansion of 

substantive due process. Def. Br. 29. Plaintiffs Love and A.M. are arguing for 

enforcement of established law protecting their right to refuse unwanted medical 

treatment. See n. 3, supra.

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Because Defendant’s Policy implicates Plaintiffs’ right to avoid unwanted 

medical treatment, the Policy must be reviewed under a heightened scrutiny. Sell, 

539 U.S. at 179.

VI. Plaintiffs Have Adequately Pled That Defendant’s Policy Fails Even 

Rational Basis Review.

As shown in Sections I-V, supra, Defendant’s Policy should be reviewed 

under heightened scrutiny. However, because it fails even rational basis review, the 

Policy cannot survive review under heightened scrutiny. 

Under rational basis review, “a plaintiff may demonstrate that the 

government action lacks a rational basis . . . either by negativing every conceivable 

basis which might support the government action, or by demonstrating that the 

challenged government action was motivated by animus or ill-will.” Davis v. 

Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012) (internal quotation marks 

omitted). To survive rational basis scrutiny, a law must be “narrow enough in 

scope and grounded in a sufficient factual context for [courts] to ascertain some 

relation between the classification and the purpose it serve[s].” Romer v. Evans, 

517 U.S. 620, 632-33 (1996). The connection between the purported justification 

and the classification cannot be “so attenuated as to render the distinction arbitrary 

or irrational.” City of Cleburne, Tex., 473 U.S. at 446. 

There is no rational basis for Defendant’s Policy. Defendant articulates two 

purported governmental interests: (1) “maintaining accurate state identification 

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documents” to “promote effective law enforcement” and (2) ensuring “that the 

information on the license is consistent with other state records describing the 

individual.” Def. Br. 23-24. Defendant claims a related interest in (3) the accurate 

“identification of sex” on a driver’s license based on “the person’s physical body.” 

Id. at 24. Defendant’s Policy is not rationally related to any of these asserted 

interests.

There is no rational connection between Defendant’s Policy and the 

promotion of accurate state identification documents to promote law enforcement. 

Because of the Policy, the sex listed on Plaintiffs’ licenses fails to match their 

appearance and the sex associated with their names. The Policy therefore 

undermines, rather than furthers, any state interest in accurately identifying 

Plaintiffs. For this reason, an Alaska court found that a state policy barring changes 

to the sex designation on a driver’s license violated the Alaska Constitution. K.L., 

2012 WL 2685183. The court reasoned that 

[b]y not allowing transgender[] individuals to change their sex 

designation, their license will inaccurately describe the discernable 

appearance of the license holder by not reflecting the holder’s lived 

gender expression of identity. Thus, when such individuals furnish 

their license to third-persons for purposes of identification, the thirdperson is likely to conclude that the furnisher is not the person 

described on the license.

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Id., at *7.

12

Defendant’s Policy also fails to further an interest in consistency “with other 

state records describing the individual.” First, to the extent that this alleged interest 

is focused on consistency with the sex on a person’s birth certificate, the interest is 

simply a restatement of the Policy rather than an “independent . . . legislative end” 

for the line drawn by the Policy. Romer, 517 U.S at 635 (1996) (“[A] classification 

of persons undertaken for its own sake” is “something the Equal Protection Clause 

does not permit.”); Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 881-82 

(1985) (refusing to accept “promotion of domestic industry” as a legitimate state 

interest for state law imposing “discriminatory tax burden on foreign insurers”). 

 12 Dean v. United States, 436 F. Supp. 2d 485, 488 (E.D.N.Y 2006), fails to support 

Defendant’s argument that her Policy serves an interest in accurate driver’s 

licenses “to promote effective law enforcement.” Def. Br. 23. Dean concerned a 

request for expungement of accurate arrest records, even though retention of such 

records serves a law enforcement purpose. In contrast, Defendant’s Policy fails to 

further any law enforcement purpose, since it undermines the accuracy of 

Plaintiffs’ licenses for identification purposes. Forbush v. Wallace, 341 F. Supp. 

217 (M.D. Ala. 1971) aff’d, 405 U.S. 970 (1972), is also inapposite since it 

involved a state law requiring married women to list their legal married name, 

rather than their maiden name, on their license. In contrast to the “confusion which 

would result if each driver were allowed to obtain licenses in any number of 

names,” id. at 222, Plaintiffs are seeking one State ID that accurately reflects their 

lived sex. In addition, in Forbush the court noted that a woman who wished to 

have her maiden name on her license was able to pursue “a simple, inexpensive 

means” to “change ... her [legal] name,” id., whereas there is no simple, 

inexpensive means for Plaintiffs to correct the sex on their birth certificate in order 

to correct it on their license. 

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Additionally, there is no logical reason why Michigan would have a state 

interest in ensuring consistency between Michigan driver’s license records and outof-state birth records over which it has neither access nor control. And in contrast 

to sex designation changes, Defendant does not require individuals who wish to 

change their name on their license to change the name on their birth certificate13—

even though names arguably serve a more important role in identifying a person. In 

addition, transgender persons who are new applicants for a Michigan license are 

not required to produce an amended birth certificate to secure a license that 

matches their gender identity and lived sex. Compl. ¶ 6.14 As a result, there is no 

requirement that the sex on the licenses of new transgender applicants for a license 

match the sex on their birth certificates. Defendant’s Policy also creates

inconsistencies between Plaintiffs’ licenses and their federal identification 

documents, such as passports and Social Security records. Id. ¶ 58, 64. Therefore, 

consistency with other state identity records has no rational connection to

Defendant’s Policy. See Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 

463 n.7 (1981) (purported rationales for legislation must be rejected if “an 

 13 See note 7, supra. 14 Transgender persons can amend the sex on their passport without amending the 

gender on their birth certificate, Compl. ¶ 10, and can use their “unexpired U.S. 

passport or passport card” as a valid form of identification in applying for a 

driver’s license for the first time. Applying for a License or ID? Applicant 

Checklist, Ruth Johnson, Secretary of State, available at

http://www.michigan.gov/sos/0,4670,7-127-1627_8669_9040_9043-312849--

,00.html.

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29

examination of the circumstances forces us to conclude that they could not have 

been a goal of the legislation”) (internal quotation marks omitted)).

Finally, Defendant’s Policy has no connection to a purported interest in 

accurate identification of sex based on a person’s “physical body,” since the Policy 

requires an amended birth certificate, rather than any particular surgical procedure

or genital characteristics. For residents who were born in Michigan the Policy 

requires surgery in order to correct the sex on their license. However, Michigan’s 

birth certificate law only requires completion of “sex-reassignment surgery,” Mich. 

Comp. Laws § 333.2831(c), which may include one or more of facial feminization, 

breast reduction or augmentation, and/or genital reconstruction surgery.Compl. ¶ 

34. Only about one-third of transgender respondents to a national survey reported 

having completed gender confirmation surgery. Id. As a result, even for residents 

born in Michigan, Defendant’s Policy has only an extremely tangential relationship 

to a person’s anatomy, such as their genital status. 

For Michiganders born in a state where no surgery or any other medical 

treatment is required to change the sex on a transgender person’s birth certificate, 

the Policy has no relationship at all to an interest in ensuring that the sex on a 

person’s license matches their physical characteristics. Persons with the same or 

similar genital characteristics might have different sex markers listed on their 

Case 2:15-cv-11834-NGE-EAS ECF No. 26, PageID.241 Filed 08/24/15 Page 39 of 42
30

license depending on where they were born and whether they are obtaining their 

first or a renewed Michigan ID. 

For Michigan residents born in states where sex designation changes on birth 

certificates are unavailable or burdensome to secure, such as Plaintiffs Seitz, Stone, 

and E.B., the Policy undermines any interest in accurately matching the sex on a 

person’s license with their physical characteristics, since the gender on the license 

can never be changed regardless of the person’s physical characteristics. That is so 

because no matter how many surgeries or other medical interventions Plaintiffs and 

others undergo, they are either forever denied or forced to overcome a serious 

burden in order to secure a license that matches their physical characteristics. Thus, 

even if Defendant intended for the sex on a license to reflect a person’s physical 

characteristics, Defendant's Policy is not rationally related to that asserted goal. See 

Hooper v. Bernalillo Cty. Assessor, 472 U.S. 612, 621-22 (1985) (Statute “not 

written to require any connection between the veteran's prior residence and military 

service” failed rational basis review).15

Defendant does not claim her Policy prevents fraud, but in any event, it is 

inconceivable that Defendant’s Policy is rationally related to such an interest. 

 15 For the same reasons, Defendant’s Policy is also unrelated to any interest in 

deciding who will conduct a search or in which jail a person should be placed. 

Moreover, federal law requires that placement decisions for transgender persons be 

made on an individualized basis, rather than simply based on anatomical status. 

See 28 C.F.R. § 115.42(c). 

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Since the Policy makes accurate identification more difficult, it undermines any 

interest in fraud prevention rather than enhancing it. To the extent that the sex 

listed on a license could be used to commit fraud, Michigan already addresses such 

concerns by prohibiting possession of a “fictitious” license and voiding a license 

that was issued based on false information. Mich. Comp. Laws § 257.324 (1)(a) & 

(2). Moreover, even if accuracy of identity and fraud prevention were Defendant’s 

goals, her Policy of determining whether a transgender person can obtain an 

accurate ID based on their state of birth or whether they are applying for a new 

license or a renewal is completely unrelated to those purposes. 

CONCLUSION

Plaintiffs request that this Court deny Defendant’s Motion to Dismiss.

Dated: August 24, 2015

Michael J. Steinberg (P43085) 

Jay D. Kaplan (P38197) 

Daniel S. Korobkin (P72842) 

American Civil Liberties Union Fund

 of Michigan 

Detroit, MI 48201 

(313) 578-6814 

msteinberg@aclumich.org 

jkaplan@aclumich.org

dkorobkin@aclumich.org

John Knight

American Civil Liberties Union Foundation

180 N. Michigan Avenue, Suite 2300

Chicago, IL 60606

(312) 201-9740

jaknight@aclu.org 

Respectfully submitted,

/s/ Michael F. Derksen

Steven R. Gilford

Michael F. Derksen

Jacki L. Anderson

PROSKAUER ROSE LLP

70 West Madison, Suite 3200

Chicago, IL 60602

(312) 962-3550

sgilford@proskauer.com

mderksen@proskauer.com

jlanderson@proskauer.com

Attorneys for Plaintiffs

Case 2:15-cv-11834-NGE-EAS ECF No. 26, PageID.243 Filed 08/24/15 Page 41 of 42
CERTIFICATE OF SERVICE

I hereby certify that the foregoing was filed electronically using the Court’s 

ECF system, which will provide electronic notice to all counsel of record. 

Dated: August 24, 2015 /s/ Michael F. Derksen

Michael F. Derksen

PROSKAUER ROSE LLP

70 W. Madison

Suite 3800

Chicago, IL 60602

mderksen@proskauer.com

Case 2:15-cv-11834-NGE-EAS ECF No. 26, PageID.244 Filed 08/24/15 Page 42 of 42