Texas AG says courts can’t force state agencies to update trans people’s IDs

Texas Attorney General Ken Paxton declared Friday that state court orders to change the sex markers on Texas birth certificates, driver’s licenses and other state-issued IDs are no longer valid.

State agencies have already prohibited transgender people from changing the sex markers on their birth certificates and driver’s licenses through internal policy changes last year. Paxton’s new directive requires them to go further and revert back any sex marker changes that were the result of court orders. The directive is the first of its kind nationwide and marks yet another escalation in the state’s nearly decadelong effort to restrict the rights of trans people. 

“There are only two sexes, and that is determined not by feelings or ‘gender theory’ but by biology at conception,” Paxton said in a statement Friday. “Radical left-wing judges do not have jurisdiction to order agencies to violate the law nor do they have the authority to overrule reality. In Texas, we will follow common sense and restore any documents that were wrongfully changed to be consistent with biology.”

Paxton’s directive came via a nonbinding legal opinion in response to a request from Steven McCraw, director of the Texas Department of Public Safety (DPS), in September. McCraw asked the attorney general whether Texas courts have the authority to order state agencies to change a person’s sex designation on government documents. If they don’t, McCraw continued, do agencies like DPS have the authority to revert back sex markers for trans Texans whose documents were changed by court orders?

McCraw said in his request that there has been a “years-long and state-wide effort to alter government records to reflect gender identity.” He added that judges who approve sex-marker changes on documents “may do so with no scrutiny whatsoever,” citing local news reports about lawyers helping trans clients update their Texas documents.  

Transgender advocates say IDs that accurately reflect a trans person’s gender identity are critical to their safety. Documents that show their birth sex and not their lived gender, they say, can cause problems while going through airport security and traveling, starting a new job — where their ID could out them as trans to an employer — voting in elections or interacting with law enforcement. 

However, McCraw said state documents are required to reflect sex, which he defined as “a binary and fixed biological fact” referring to the presence of two X chromosomes or the presence of a Y chromosome, and that accurate identification “has obvious implications for public safety.” Conservative officials have often cited a similar definition of sex, even though scientists estimate that 1.7% of people are born intersex, meaning they have sex characteristics that don’t fit typical definitions of male or female. 

Ash Hall, an LGBTQ policy and advocacy strategist for the ACLU of Texas, said nonbinding legal opinions, like Paxton’s, cannot supersede court orders.

“State agencies have no authority to retroactively change anyone’s valid legal documents,” Hall said in a statement. “If state agencies attempt to implement this non-binding opinion, it would be an unlawful waste of resources that will not hold up in court nor stand the test of time. We should all have identity documents that match who we are as a matter of basic safety and Paxton cannot erase transgender Texans’ right to exist.”

McCraw’s letter and Paxton’s legal opinion are the latest efforts from Texas officials to roll back the rights of trans Texans. 

In 2023, the state enacted legislation that prohibits transition-related care for minors and barred trans student athletes from playing on school sports teams that align with their gender identities. 

Many of the state’s policy changes targeting trans people have circumvented the legislature, by agencies choosing to change their policies internally or by Paxton issuing legal directives for them to do so. In March 2022, after state lawmakers failed to pass a bill restricting transition-related care for minors, Paxton issued a legal opinion and directive that resulted in the Texas Department of Family and Protective Services opening child abuse investigations into parents who were suspected of having provided such care to their minor children, though the directive was later blocked by a judge.

The Texas Department of Public Safety and Department of State Health Services also both quietly prohibited trans people from updating the sex markers on their driver’s licenses and birth certificates in August and September. The state justified those changes earlier this year citing an executive order signed by President Donald Trump that declares the federal government will recognize only two, unchangeable sexes. 

So far this year, Texas lawmakers have introduced nearly 200 bills targeting LGBTQ people, according to Equality Texas, a state LGBTQ advocacy group. 

Last week, Republican state Rep. Tom Oliverson filed a bill that could charge trans people with a state jail felony — punishable by up to two years in jail and a fine of up to $10,000 — if they identify their birth sex incorrectly on state documents or to employers. The bill doesn’t have any other sponsors and is unlikely to pass, but it’s the first of its kind in the nation. 

Texas isn’t alone in its efforts to restrict IDs for trans people. Florida agencies rolled out similar policies last year, and, as a result, the Florida Department of Highway Safety and Motor Vehicles has started invalidating drivers licenses it issued to trans people with updated sex markers and issuing them new licenses showing their birth sex.