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Documenting Gender Dean Spade Hastings Law Journal Volume 59 | Issue 4 Article 1 1-2008 Documenting Gender Dean Spade Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Dean Spade, Documenting Gender, 59 Hastings L.J. 731 (2008). Available at: https://repository.uchastings.edu/hastings_law_journal/vol59/iss4/1 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Articles Documenting Gender DEAN SPADE* INTRODUCTION We are witnessing a period of great controversy and law reform about issues of identity documentation and identity verification. In the last few years, both the passage of the Real ID Act' and the implementation of new data comparison practices between administrative agencies such as departments of motor vehicles (DMVs) and the Social Security Administration (SSA) have emerged with the aims of enforcing immigration laws about work eligibility and bolstering national security.2 Many different types of political groups have objected to these changes and innovations. While these new strategies of surveillance and governance impact everyone in the United States, certain populations have spoken up with particularized concerns about specific consequences and impacts. Several state governors and legislators have opposed the costs of making their DMVs "Real ID compliant."3 Immigrant rights groups have identified dangers of denying * Dean Spade is currently a Williams Institute Law Teaching Fellow at Harvard Law School and UCLA Law School, and will be joining the faculty of the Seattle University School of Law in Fall 2008. He thanks the following people for their guidance, support, and assistance on this Article: Devon Carbado, Ann Carlson, Paisley Currah, Emily Drabinski, Emily Grabham, Rolan Gregg, Janet Halley, Joel Handler, Cheryl Harris, Rosemary Hunter, Sonia Katyal, Doug Kysar, Sarah Lamble, Stewart Motha, Hiroshi Motomura, Russell Robinson, Kendall Thomas, Craig Willse. Emily J. Wood, and Noah Zatz. He is also grateful for the opportunity to present versions of this work at the Research Center for Law, Gender, and Sexuality at the Universities of Kent, Keele, and Westminster; UCLA Law School; the LGBT Law Faculty Workshop of Greater New York; and the University of Minnesota. i. Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005). 2. New Rules on Licenses Pit States Against Feds. CNN.coM, Jan. II, 2oo8, http://www.cnn.com/2oo8JUS/oi/i i/real.id.ap/index.html [hereinafter New Rules on Licenses]. 3. See, e.g., An Act to Prohibit Maine from Participating in the Federal Real ID Act of 2005, ME. REV.STAT. ANN. tit. 29-A, § 1411 (Supp. 2007); Resolution Opposing Real ID Act, H.R. Res. 2, 56th Leg., Gen. Sess. (Utah 2007); ACLU, Washington Becomes Fourth State to Oppose Real ID Act, Apr. 5, 2007, http://www.aclu.org/safefree/general/2929iprs2oo7o4o5.html; Gov Signs Law Rejecting Real ID Act, BILLINGSGATE.coM, Apr. 17, 2007, http://www.billingsgazette.net/articles/2007/o4h17/news/ [731] HASTINGS LAW JOURNAL [Vol. 59:731 driver's licenses to the millions of undocumented immigrants living in the United States Groups like the AARP5 have argued that older people, rural Americans, certain racial groups, and poor people will find the increasing levels of documentation required to get through new bureaucratic hurdles impossible, pointing out that about eleven million U.S. citizens have neither a birth certificate nor a passport in their home.6 These groups opposing identity documentation and verification reforms have won some victories. Some states have passed laws declining to follow the Real ID Act. A California federal court recently extended a temporary restraining order preventing the Department of Homeland Security from implementing a new rule that would require employers to fire workers within ninety days who could not resolve mismatches between SSA records and their employer's records of their identity.8 New York State recently made headlines when, after long term advocacy by a coalition of interested groups, it proposed a change in its DMV policy to allow undocumented immigrants access to driver's licenses, although the backlash prompted former Governor Spitzer to withdraw the proposal shortly after its introduction.' These emerging events provide opportunities to ask interesting questions about administrative governance, data collection, identity verification, and surveillance. The recent push toward national standardization of identification (ID) policies is bringing into conflict the varied state and federal policies that govern identity registration and verification. This Article uses the example of gender reclassification rules, an area of administrative governance in which the impacts of current trends state/28-law.txt; New Rules on Licenses, supra note 2. 4. See, e.g., American Friends Serv. Comm., Immigrant Rights Project http://www.afsc.org/ central/ImmigrantRights/default.htm (last visited Mar. 17, 2008); CAUSA, Video Released on New Driver's License Restrictions (Jan. 16, 2oo8), http://causaoregon.blogspot.com/2oo8/oI/bad-policy- danger-to-public-safety.html; Farmworker Legal Servs. of Mich., Immigrant Rights, http://farmworkerlaw.org/document.205-05-3o.i88 5 29 5 685 (last visited Mar. 17, 2008); N.Y. Civil Liberties Union, Real ID & Immigrants' Rights, http://www.nyclu.org/node/I321 (last visited Mar. 17, 2008). 5. AARP, formerly the American Association of Retired Persons, is a "nonprofit, nonpartisan membership organization for people age 50 and over.., dedicated to enhancing quality of life for all as we age." AARP, Overview: AARP Mission Statement, http://www.aarp.org/about-aarp/aarp- overview/a2002-12-i8-aarpmission.html (last visited Mar. 17, 2008) 6. Letter from AARP to Eliot Spitzer, Governor of N.Y. (Sept. I I, 2007) (on file with author). 7. According to the ACLU, seventeen states have enacted legislation refusing compliance with the Real ID Act, eleven states have passed such legislation in one chamber of their legislature, and eight states have introduced such legislation. RealNightmare.org, Status of Anti-Real ID Legislation in the States, http://realnightmare.org/news/1o5/ (last visited Mar. 17, 2oo8). 8. Am. Fed'n of Labor v. Chertoff, No. C 07-04472 CRB, 2007 WL 2972952, at "i (N.D. Cal. Oct. 1O, 2007) (granting motion for preliminary injunction). 9. Nicholas Confessore, Spitzer Drops Bid to Offer Licenses More Widely, N.Y. TIMES, Nov. 14, 2007, http://www.nytimes.com/2o07/l i/i4/nyregion/x4cnd-spitzer.html. March 2008] DOCUMENTING GENDER toward national standardization of local practices is significant, to look at this trend of standardization of ID policies and what it reveals about administrative governance. Gender reclassification policies are policies that govern the recognition of a change in a person's gender by a state or federal administrative agency." This rule matrix, which includes hundreds of formal and informal policies at the federal, state, and local levels, is rarely discussed, and no scholarship thus far has attempted to lay out the complex set of policies side by side so that they can be examined as a group and analyzed with regard to their significance in understanding administrative governance. The policies and practices in this area are multiple and conflicting, creating seriously problematic binds for those directly affected and bureaucratic confusion for the agencies operating under these policies. A brief glimpse of gender reclassification policies, with a few key examples to demonstrate the conflicts that have arisen-even within the same jurisdiction-is helpful here. Over the past forty years, increasing numbers of identity document issuing agencies, such as departments of health, DMVs, and the SSA, have created policies or practices allowing individuals to change the gender marker on their documents and records from "M" to "F" (male to female) or "F" to "M" (female to male)." These policies emerged from a growing awareness of the existence of a population of people, currently labeled "transgender,"'' who live their Io. Julie A. Greenberg, Deconstructing Binary Race and Sex Categories: A Comparison of the Multiracial and Transgendered Experience, 39 SAN DIEGO L. REV. 917, 931-32 (2002). I I. See infra Part 1ILA-C. 12. "Transgender" is a term that emerged in the 199os to describe people who experience discrimination or bias because they identify or express gender differently than what is traditionally associated with the sex they were assigned at birth. See generally LISA MoTEr & JOHN M. OHLE, TRANSITIONING OUR SHELTERS: A GUIDE TO MAKING HOMELESS SHELTERS SAFE FOR TRANSGENDER PEOPLE 7-1O (2003), available at http://www.thetaskforce.org/downloads/reports/reports/Transitioning OurShelters.pdf; DEAN SPADE & JODY MARKSAMER, GROUP HOMES GUIDE (forthcoming 2008); Greenberg, supra note IO; Franklin H. Romeo, Beyond a Medical Model: Advocating for a New Conception of Gender Identity in the Law, 36 COLUM. HUM. RTS. L. REV. 713 (2005). As with all communities facing marginalization and discrimination, the terms used to identify the transgender population have changed over time. Prior to the emergence of the term "transgender," a variety of terms, including "transvestite," "transsexual," "drag queen," and several others were used popularly to identify various parts
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