UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

EMANI LOVE, et al.,

Plaintiffs,

v

RUTH JOHNSON, 

Defendant.

NO. 2:15-cv-11834

HON. NANCY EDMUNDS

MAG. ELIZABETH A. STAFFORD

AMERICAN CIVIL LIBERTIES 

 UNION FUND OF MICHIGAN 

Jay D. Kaplan (P38197)

Daniel S. Korobkin (P72842)

Michael J. Steinberg (P43085)

Attorneys for Plaintiffs

2966 Woodward Avenue 

Detroit, MI 48201

(313) 578-6812

AMERICAN CIVIL LIBERTIES 

 UNION FOUNDATION 

John A. Knight 

Attorney for Plaintiffs

180 North Michigan Avenue, Suite 2300

Chicago, IL 60606

(312) 201-9740

PROSKAUER ROSE LLP

Steven R. Gilford

Michael F. Derksen

Jacki L. Anderson

Attorneys for Plaintiffs

70 West Madison, Suite 3800

Chicago, IL 60602

(312) 962-3550

Erik A. Grill (P64713)

Kevin R. Himebaugh (P53374)

Jeanmarie Miller (P44446)

Denise Barton (P41535)

James E. Long (P53251) 

Assistant Attorneys General

Attorneys for Defendant Johnson

Michigan Department of Attorney General

Civil Litigation, Employment &

 Elections Division 

P.O. Box 30736

Lansing, MI 48909

(517) 373-6434

/

DEFENDANT’S REPLY TO PLAINTIFFS’ RESPONSE TO 

DEFENDANT’S MOTION TO DISMISS

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A. “Sex” is not interchangeable with “gender.”

Plaintiffs contend that Defendant’s distinction between “sex” and 

“gender,” with “sex” being primarily physical and “gender” being more 

closely associated with a person’s identity or expression, is contrary to 

“medical and scientific consensus.” (R. 26, Response, Pg ID# 214). But 

this distinction between sex and gender is not Defendant’s own 

invention. Rather, the distinction comes from a case involving a 

transgender person, where the court makes the distinction between the 

two terms in quoting a 2011 publication of the American Psychological

Association. Shaw v. District of Columbia, 944 F.Supp.2d 43, 48, fn. 2, 

3 (D.D.C., 2013). Accordingly, the distinction that Defendant has made 

is supported by case law. Plaintiffs have failed to cite to or identify 

their sources, case law or otherwise, for the supposed consensus. 

Regardless, Plaintiffs’ use of these terms interchangeably causes 

confusion and muddles the issues before this Court. If only for purposes 

of this lawsuit, there must be a baseline vocabulary that distinguishes 

between an individual’s physical sexual anatomy and the person’s 

gender identity or gender expression. Otherwise, if both “sex” and 

“gender” are subject to self-identification, any designation of “male” or 

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“female” is ultimately nothing more than an individual’s subjective selfconcept. Indeed, in their Response, Plaintiffs contend that the most 

important factor in determining a person’s “sex” is their gender identity. 

(R. 25, Pg ID# 214). Plaintiffs fail to provide any legal or scientific

authority to support this contention. 

To prevent the parties from becoming mired in pedantic disputes

over which definition is more precise or apt, Defendant suggests that 

this Court adopt the Shaw and the American Psychological 

Association’s definitions of “sex” and “gender.”

B. Plaintiffs have failed to plead a violation of any

limited right to informational privacy under the 

substantive due process protections of the Fourteenth 

Amendment.

When analyzing the right-to-privacy protections of substantive 

due process, the starting point is that “the Constitution does not 

encompass a general right to nondisclosure of private information.” 

J.P. v. Desanti, 653 F.2d 1080, 1090 (6th Cir. 1981). Plaintiffs fail to 

mention Desanti in their response and instead focus on two narrow 

limited exceptions to this general rule: Kallstrom v. City of Columbus, 

136 F.3d 1055 (6th Cir. 1998) and Bloch v. Ribar, 156 F.3d 673 (6th Cir. 

1998). 

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As discussed in Defendant’s brief to dismiss, the narrow and factspecific exceptions presented in Kallstrom and Bloch do not support 

Plaintiffs’ argument that substantive due process should be extended to 

provide them a right to privacy regarding the sex designation on their 

driver’s licenses. A Michigan driver’s license or state issued 

identification card merely states an operator’s anatomical sex, not his or 

her gender or gender identity.

In support of their position that disclosure of the “wrong” sex on 

their driver’s license violates their right to privacy, Plaintiffs cite to 

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

05431-CI, 2012 WL 2685183 (Alaska Super. Ct. Mar. 12, 2012). But 

K.L. is inapposite for two main reasons. 

First, the right to privacy in K.L. was based on the Alaska 

Constitution, not the United States Constitution. “Unlike the federal 

Constitution, Alaska’s constitution provides an explicit right to 

privacy.” K.L., 2012 WL 2685183 at *4. State law can confer greater 

rights than federal law. “Because this right to privacy is explicit, its 

protections are necessarily more robust and ‘broader in scope’ than 

those of the implied federal right to privacy.” Id. The court concluded 

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that disclosure of the driver’s license “implicates non-fundamental

aspects of the right to privacy.” Id. at *8 (emphasis added). In contrast, 

Plaintiffs here argue that they have a fundamental right to privacy 

under the U.S. Constitution. Thus, Plaintiffs’ reliance on K.L. is 

misplaced. 

Second, the court’s decision in K.L. is based, in part, on the fact 

that the Alaska DMV provided no procedure for changing the sex 

designation on a person’s driver’s license. Previously, the Alaska DMV, 

like Michigan, required “a medical certification of a sex change...before 

the DMV would change the sex code on an individual’s license.” K.L., 

2012 WL 2685183 at *1. But the parties agreed that the regulation was 

“not promulgated in accordance with the APA, and is therefore invalid.” 

Id. at *3. Accordingly, “because the DMV now has no procedure for 

changing the sex designation on a driver’s license, the issue before this 

Court is whether the absence of any procedure for changing the sex 

designation on an individual’s license impermissibly infringes on the 

privacy rights of license holders....” Id. Nothing in K.L. calls into 

question the legality of requiring proof of a sex change. The court 

simply ordered the Alaska DMV to adopt a regulation in accordance 

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with the APA. Id. at *8. If anything, K.L. actually supports 

Defendant’s position that requiring proof of a sex change is lawful. 

Accordingly, Plaintiff’s right-to-privacy claim should be dismissed.

C. Plaintiffs’ arguments on the application of the First 

Amendment are legally incorrect and must be 

rejected.

Defendant’s brief cited extensively to the Supreme Court’s 

decision in Rumsfeld v. Forum for Academic & Institutional Rights, 

Inc., 547 U.S. 47 (2006), which itself provided a thorough review of 

Supreme Court jurisprudence on compelled speech in matters of both 

opinion and fact. (R. 16, Pg ID# 92-94). Plaintiffs’ response conflates 

compelled statements of fact and opinion, and fails to acknowledge the 

nuances between how those different subjects have been treated by the 

Supreme Court. 

Plaintiffs erroneously argue that West Virginia State Board of 

Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 

(1943) and Wooley v. Maynard, 430 U.S. 705, 717 (1977) apply to 

compelled statements of fact under Riley v. National Federation of the 

Blind of N.C., Inc., 487 U.S. 781, 797-798 (1988). But Plaintiffs failed to 

acknowledge that Barnette and Wooley, which involved disputes over 

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the Pledge of Allegiance and mandatory display of a state motto, 

involved matters of compelled statements of opinion or ideology. 

Barnette, 319 U.S. at 642; Wooley, 430 U.S. at 717. In contrast, the 

Supreme Court in Riley expressly based its decision upon its concern 

over the burden that compelled statements of fact, as opposed to opinion 

or ideology, placed on other protected expression. Riley, 487 U.S. at 

797-798. Because Plaintiffs ignore this critical distinction, their 

arguments are intrinsically and incurably flawed.

Notably, the Plaintiffs appear unwilling to definitively state 

whether their claim is based upon a theory of compelled statement of 

fact or compelled statement of opinion. Consequently, it remains 

unclear how they believe their claim should be analyzed. Thus, 

Plaintiffs fail to take a position on one of the central issues in this case

– whether Plaintiffs’ sex is a matter of fact, or opinion.

Regardless, Plaintiffs’ claims fail either way. As a compelled 

statement of fact, Plaintiffs fail to establish that having their sex 

designated on their driver’s license burdens protected speech. In 

support of their claim that the expression of their gender identity is 

protected speech, Plaintiffs cite to two state court opinions from outside 

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the Sixth Circuit. Doe v. Yunits, 2001 Mass. Super. LEXIS 327 (2001) 

and Doe v. Bell, 754 N.Y.S.2d 846 (Sup. Ct. NY, 2003). In Yunits, the 

Massachusetts Superior Court made no determination about whether a 

transgender student’s decision to wear female clothes was not protected 

speech, and instead the two claims premised upon “freedom of 

expression” were dismissed with the agreement of the plaintiff. Yunits, 

2001 Mass. Super. LEXIS 327, 10-11. Similarly, Bell was not based 

upon protected expression, and instead was a claim for accommodation 

under New York’s disability discrimination statute. Bell, 754 N.Y.S.2d 

at 850. Consequently, neither case supports Plaintiffs’ claims.

Likewise, if Plaintiffs assert a theory of compelled opinion, their 

claim fails because there is no opinion being expressed about the 

validity or merits of their gender identity. There is no statement of 

ideology or creed, simply a designation of “M” or “F,” which is no more a 

statement of opinion than the recitation of Plaintiff’s’ height, eye color, 

or age. 

Significantly, Plaintiffs make no effort to reconcile their claims 

with United States v. O’Brien, 391 U.S. 367, 375 (1968), in which the 

Supreme Court noted that the prohibition against destruction of draft 

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cards, “no more abridges free speech on its face than a motor vehicle 

law prohibiting the destruction of drivers’ licenses....” Plaintiffs also 

offer no explanation for how their claims comport with Walker v. Texas 

Division, Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2242 

(2015), where the Supreme Court noted that, “issuers of ID ‘typically do 

not permit’ the placement on their IDs of ‘message[s] with which they 

do not wish to be associated.” (internal citations omitted). In other 

words, if the Plaintiffs’ gender identity is indeed a matter of opinion, 

then it follows that the State is not required to print the Plaintiffs’ 

contrary opinion on a state-issued ID.

D. Plaintiffs fail to state a valid Equal Protection claim 

because they do not show that they are treated 

differently on the basis of their sex.

Plaintiffs’ principal argument is that Defendant’s policy on 

changing one’s sex designation “classifies based on sex.” (R. 26, Pg ID# 

230). According to Plaintiffs, Defendant’s policy “denies only 

transgender persons the right to an accurate license.” (R. 26, Pg ID# 

231). Plaintiff’s argument, however, misapplies both the Defendant’s 

policy and prevailing law.

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Plaintiffs fail to satisfy the threshold requirement of an Equal 

Protection claim that they are treated differently from those who are

similarly situated. Scarbrough v. Morgan County Board of Education, 

470 F.3d 250, 260 (6th Cir. 2006). Plaintiffs do not allege that only 

males are permitted to change their sex to female on their driver’s 

license, or vice versa. The Secretary of State’s policy, which logically 

flows from a Michigan statute, on its face, makes no classification based 

upon sex or gender. There is simply no disparate treatment in 

requiring an updated birth certificate before changing the sex 

designation on a driver’s license. Defendant simply requires that a 

person’s sex designation conform to an official state record—a birth 

certificate. Plaintiffs fail to establish that this requirement, generally 

applicable to all persons equally, singles them out for disparate 

treatment. 

Finally, Defendant’s driver’s license policy withstands rational 

basis review. Johnson v. Bredesen, 624 F.3d 742, 746-47 (6th Cir. 

2010). There are legitimate state interests in an official state 

identification that reflects a person’s sex in conformity with their 

physical anatomy. Plaintiffs’ arguments focus on the varied standards 

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that other states require to change a birth certificate, which may result 

in some people in Michigan obtaining a revised birth certificate without 

a change to their anatomy. According to Plaintiffs, this potential for 

inaccurate information on a Michigan driver’s license nullifies 

Defendant’s interest in accurate records. 

But the fit between the government’s legitimate interests and the 

means chosen to accomplish those interests need not be perfect, just

rational. See e.g. Breck v. Michigan, 47 F. Supp. 2d 880, 887 (E.D. 

Mich. 1999). The identification of drivers based on their anatomical sex 

is rationally related to the governmental interests in maintaining 

accurate identification records and based on public safety concerns. 

State law expressly requires that a driver’s license include a person’s 

“sex.” Mich. Comp. Laws § 257.310(2)(b). Birth certificates are 

considered “vital records” by law, and include a designation of sex at 

birth. Mich. Comp. Laws § 333.2805(3), Mich. Comp. Laws § 

333.2831(c). Defendant may rationally conclude, therefore, that a birth 

certificate is the most accurate means of determining a person’s sex. 

Moreover, there are a multitude of public safety concerns that 

support the government’s interest in having reliable information about 

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a person’s biological sex. For example, upon arrest, a transgender 

person who has not undergone reassignment surgery could be exposed 

to harm if detained or imprisoned with members of the opposite sex. 

Also, as a result of a catastrophic event, such as a serious auto accident, 

a destructive fire, flood, etc., it may be necessary to identify a body 

based upon anatomical indicators, such as bone structure. Inconsistent 

records could increase the chances of misidentification. 

Plaintiffs may dispute the effectiveness of Defendant’s policy or 

the balance of interests inherent in it, but Plaintiffs cannot seriously 

dispute that the government’s interests are legitimate and that the 

challenged policy is rationally related to accomplishing those interests. 

The policy thus passes rational basis review, and Plaintiffs’ Equal 

Protection claim must fail.

E. Plaintiffs have failed to plead a violation of the right 

to interstate travel.

The component of the right to travel at issue here is “for those 

travelers who elect to become permanent residents, the right to be 

treated like other citizens of that State.” Saenz v. Roe, 526 U.S. 489, 

500 (1999). Plaintiffs’ claim is without merit.

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First, on the specific facts alleged by Plaintiffs, there is no actual 

discrimination between Michigan-born residents and Michigan 

residents who were born elsewhere. Plaintiffs’ right-to-travel claim is 

based on the alleged distinction between “those who were born in 

Michigan and those who were not.” (R. 1, Complaint, ¶ 125, Pg ID# 37). 

But this distinction is illusory because Defendant’s policy to require a 

birth certificate to change a person’s sex designation on their Michigan 

driver’s license, applies equally whether the birth certificate was issued 

by Michigan or some other state. Michigan-born and non-Michiganborn Plaintiffs are treated exactly the same.

Second, the case law cited in Plaintiffs’ response brief does not 

support their right-to-travel claim. Plaintiffs rely solely on two cases: 

Saenz, supra and Attorney Gen. of New York v. Soto-Lopez, 476 U.S. 898 

(1986). (R. 26, Response, Pg ID# 232-34). 

Saenz involved deliberate and direct discrimination against new 

California residents. For one year, new residents of California received 

welfare benefits in the amount that they received from their former 

state when that amount was lower than what California would have 

been paid to long-term California residents. Saenz, 526 U.S. at 493. 

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The raison d'être of the challenged law was to treat new residents 

differently. Not so in this case. Here, Defendant has an equally-applied 

policy that provides an objective, consistent, and administrable method 

for changing the sex designation on a person’s driver’s license.

Soto-Lopez also involved direct, purposeful discrimination based 

solely on residency. New York granted civil service preferences only to 

military veterans who were residents of New York when they entered 

military service. Soto-Lopez, 476 U.S. at 900. New York offered several 

reasons for its deliberate discrimination, but the Supreme Court 

rejected them all. Id. at 909.

Unlike Saenz and Soto-Lopez, the purpose of the driver’s license 

policy is not to discriminate against new residents, but rather to apply a 

uniform policy applicable to all of its residents with respect to changing 

the sex designation on a driver’s license. Consequently, Plaintiffs’

right-to-travel claim should be dismissed.

F. Plaintiffs have failed to plead a claim of forced 

medical treatment.

Plaintiffs admit that they are not forced to undergo medical 

treatment, but instead argue that “Defendant’s policy forces Plaintiffs 

to choose between an accurate license and an invasive medical 

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procedure.” (R. 26, Response, Pg ID# 236). Plaintiffs’ argument is 

flawed.

First, Plaintiffs already have an “accurate” license, which reflects 

their sex as set forth on their birth certificate. Plaintiffs have not sued 

to have the word “sex” changed to “gender” on the face of the driver’s 

license.

Second, the requirement to have sex-reassignment surgery in 

order to change one’s sex on a Michigan-issued driver’s license is not 

imposed by Defendant’s policy. The requirement comes from the Public 

Health Code, which requires the state registrar to establish a new 

certificate of birth when one of three conditions is met. Relevant here is 

the third condition: “A request that a new certificate be established to 

show a sex designation other than that designated at birth. The 

request shall be accompanied by an affidavit of a physician certifying 

that sex-reassignment surgery has been performed.” Mich. Comp. Laws 

§ 333.2831. None of the cases cited in Plaintiffs’ response brief support 

the conclusion that this indirect connection could support a forcedmedical-treatment claim.

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CONCLUSION AND RELIEF REQUESTED

For the reasons discussed above and in her brief to dismiss, 

Defendant requests that this Honorable Court grant her motion and 

dismiss this action with prejudice.

Respectfully submitted, 

Bill Schuette

Attorney General

/s/Erik A. Grill

Erik A. Grill (P64713)

Kevin Himebaugh (P53374)

Jeanmarie Miller (P44446)

Denise C. Barton (P41535)

James E. Long (P53251) 

Assistant Attorneys General

Attorneys for Defendant

Civil Litigation, Employment & 

Elections Division 

P. O. Box 30736

Lansing, Michigan 48909

(517) 373-6434

grille@michigan.gov

Dated: September 16, 2015

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CERTIFICATE OF SERVICE

I hereby certify that on September 16, 2015, I electronically filed 

the foregoing paper with the Clerk of the Court using the ECF system 

which will send notification of such filing of the foregoing document as 

well as via U.S. Mail to all non-ECF participants.

/s/Erik A. Grill

Erik A. Grill 

Assistant Attorney General 

Attorneys for Defendant 

P.O. Box 30736

Lansing, Michigan 48909

(517) 373-6434

grille@michigan.gov

P64713

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