DPS director asks Paxton for guidance on sex marker changes
AUSTIN (KXAN) — Texas DPS Director Steven McCraw sent a letter to Texas Attorney General Ken Paxton on Sept. 13, asking for his office's opinion on whether Texans have the right to use a court order to change the sex marker on state-issued identification.
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Specifically, McCraw asked if state courts have the authority to issue such an order, what "proof" is required for an order and whether state agencies are allowed to revert previously changed documents.
"DPS may have altered many governmental sex records in mistaken reliance on court orders that either lacked any basis in law or authority to bind DPS or were not relevant proof under statutory authority to correct mistaken records of an individual's sex," the letter reads. "On other occasions, when DPS has made an erroneous entry to a person's records, the agency has on its own initiative corrected such a mistake."
The letter can be read below. The continues after.
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Texas doesn't define 'sex'
McCraw's letter defines sex using a 1949 version of Webster's New Collegiate Dictionary, which he quotes as using a chromosomal distinction between the sexes: "The presence of two X chromosomes...causes a female to be developed; the presence of a Y chromosome...causes a male to be developed."
This definition, abridged by the DPS director, does not make space for Texans born with chromosomal conditions, such as Klinefelter syndrome , Swyer syndrome , Androgen insensitivity syndrome , and other similar conditions.
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In the current version of that dictionary, sex is defined as "the sum of the structural, functional, and sometimes behavioral characteristics of organisms that distinguish males and females."
A Texas bill that would have actually codified a definition of sex was put forward in 2023. It failed to pass in the state Legislature. Without such a law, Texas doesn't have a legal definition of sex or gender.
Judge shopping for me, not for thee
The U.S. Supreme Court's 2020 ruling in Bostock v. Clayton County expanded the Civil Rights Act's definition of "discrimination based on sex" to include protections for a person's sexual orientation and transgender status. The court's ruling stated , "Discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second."
Paxton sued the federal government over policy changes based on that ruling. He was recently granted an injunction by Judge Reed O'Connor, who has a history of siding with Paxton in his many lawsuits against the U.S. government, according to 2018 reporting by The Texas Tribune .
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McCraw's letter accuses transgender Texans of the same tactic used by the man he's writing.
"Texas lawyers have...operated a gender-change-by-court-order program to evade court opinions holding the practice unlawful, including by shopping for 'friendly' judges in Bexar and Travis Counties with whom those lawyers 'had worked with in the past,'" wrote McCraw, citing 2021 reporting by the San Antonio Express News .
"Interest groups across the State offer help in procuring such court orders, including 'court-specific instructions' that identify 'friendly' and 'hostile' judges by name," the letter reads, citing the website "texasnameandgendermarkerchange.com."
That website, last updated in 2022, bears a warning in red text stating that it may be out of date. Its edit history shows a handful of users who contributed to the page. As for lists of friendly and hostile judges, the website is hardly exhaustive, listing 6 of Texas' 254 counties.
For Bastrop, only one judge is listed, with links to two 2017 social media posts vouching for him. For Williamson, only one judge is listed. For Dallas, Harris and Tarrant Counties, there are only notices that those counties won't issue sex marker changes. Travis County is the only county with a list that approached what McCraw's letter suggests.
An uncertain future
In 2022, the Office of the Attorney General asked DPS for a two-year list of every gender marker change performed by the agency. DPS' driver's license division notified him of more than 16,000 instances but declined to send the data, due to the massive expense of determining why a marker changed.
McCraw admits in the letter that his agency has made "erroneous entries" on such documents before. Some licenses may have changed due to an error by DPS employees, and not because a transgender Texan updated the marker.
What McCraw's letter doesn't say is how DPS would decide which IDs to "voluntarily correct." It doesn't say if DPS would require DNA testing of Texans prior to license renewal, or if the agency would direct its driver's license office employees to sex Texans like livestock.
Texas currently allows for remote renewal of driver's licenses and ID cards, which only requires resubmission of the card and the Texan's social security number. This can also be done up to two years after the card expires.
The Social Security Administration accepts Texas court orders in order to change a sex marker on a citizen's file. This, a likely step for transgender Texans following the issuance of a court order, would mean that required renewal documents could show matching sex markers.
