Now that Florida has banned gender changes on driver’s licenses, how will it actually work?

A new Florida Department of Highway Safety and Motor Vehicles memo has banned residents from replacing driver’s licenses to conform with their gender identity while warning that “misrepresenting gender, understood as sex” on their license is a crime.

In the days since, questions have emerged about what the policy will actually mean for transgender Floridians. What if they lose their license or need it updated for other reasons? Will their gender identity will be replaced with their birth sex? Will they be outed if they get pulled over or try to buy alcohol at the grocery store?

Spokespeople for the department have said the only real policy change pertains to getting a replacement license, but critics believe it could have far-reaching consequences, in large part because of its chilling effect.

Simone Chriss, an attorney and director of the Transgender Rights Initiative at Southern Legal Counsel, said some of her clients already have said they are afraid to drive to work or pick their kids up from school.

“They purposefully create this ambiguity that chills people from doing something,” said Alejandra Caraballo, a civil rights attorney at Harvard Law School’s Cyber Law Clinic and a former Tampa resident who is also transgender.

She compared the policy to the so-called “Don’t Say Gay” legislation that limits instruction about gender identity and sexuality in schools: “They flood the zone with so much contradictory information that people don’t know what’s up.”

Gov. Ron DeSantis doubled down on the new policy during a question-and-answer section of his Thursday news conference, describing it as a policy rooted in “truth and in fact.”

“It’s not targeting anybody, it’s just we’ve got to recognize, what’s the fact?” he said in response to a question about the policy targeting trans people. “You’re born one way or another, there’s only two … what we have to do from the state’s perspective is just focus on objective biological reality, because the minute you go off of that, the minute it can be subjective, well what else can be subjective?”

What it was like before?

In the new memo, sent Jan. 26, Deputy Executive Director Robert Kynoch wrote that he is revoking the previous policy of allowing Floridians to go to their local county tax collector’s office and get a replacement license in order to change their gender. This already was a violation of state law, he said, because Florida Statutes allow replacement licenses only when the previous license was lost or stolen.

For years, Floridians could go to their local county tax collector’s office and present a letter from their doctor or healthcare provider that says they are undergoing transition, along with their ID, according to Quinn Diaz, a public policy associate with Equality Florida, an LGBTQ advocacy organization. Diaz is nonbinary and uses they/them pronouns.

That policy was in place since 2011, Diaz said, fairly similar to those in other parts of the country, even slightly more lenient than the most restrictive states, which require people to bring in letters from surgeons to prove they’re undergoing sex reassignment surgery. Now no such process exists in Florida.

“You could just show up, bring in a letter, and say here I’m here for a gender marker update,” Diaz added. “It does look like they’re trying to prevent folks from engaging in that process at all.”

Is it just replacing a license, or also getting a license?

In a separate statement on Tuesday, spokespeople for the FLHSMV said that the only policy change has to do with replacement licenses. But the memo goes on to say that gender under Florida law means birth sex and representing your gender otherwise on your license is a crime.

“Misrepresenting one’s gender, understood as sex, on a driver license constitutes fraud,” the memo states.

That language could mean new difficulties for transgender or nonbinary Floridians trying to get their first license, use their existing license, or update their license for other reasons, legal experts say.

“If it’s just renewals, then why are they saying it’s criminal or potentially criminal fraud to change your gender marker?” Caraballo said. “That leaves a lot of weaponized ambiguity or uncertainty.”

Diaz said that Equality Florida is “very concerned about folks who want to get a license for the first time or recently moved here,” but there just isn’t enough guidance to say how the policy will affect them yet.

But Chriss said that the memo is “unconstitutional” under existing state statute, which uses the term gender and doesn’t define it as birth sex. However, she said, it’s possible some government employees like those at the county tax collector’s office will abide by their interpretation of the memo rather than state statute, perhaps out of personal feelings or fear of losing their jobs.

“I think it is likely we will see some folks who are wrongly subjected to this, but my hope is that those people are empowered and know what their rights are and don’t just take it sitting down,” Chriss said.

Experts think the policy could affect transgender people who need replacement licenses under the new Real ID act, or those that are lost, stolen, or have a change of address. It also could mean transgender people won’t be able to change their names on their licenses.

“Most people who go to do that are also doing it in combination with a name change,” Caraballo said.

Molly Best, a spokesperson for the FLHSMV, did not respond to several emailed questions on Thursday about how the policy will work but provided a link to the department’s website about what to bring when getting a license.

“In Florida, you do not get to play identity politics with your driver license,” Best said in an email. “To obtain a license, the Florida Department of Highway Safety and Motor Vehicles (FLHSMV) requires satisfactory proof of identity, including your biological sex, to the Department.”

A request to interview the department director, Dave Kerner, was denied.

Is it a crime to use a replacement license?

The language describing the use of gender rather than sex as a crime has also raised questions about whether people who are currently using licenses with gender rather than sex assigned at birth will be facing penalties in such situations as getting pulled over on the highway.

“The Florida Highway Patrol (FHP) is charged with enforcing the laws of the state and ensuring the safety of its residents and visitors,” Best said. “Everyone traveling Florida roadways must possess a valid driver license when behind the wheel.”

FHP is controlled by the FLHSMV.

Legal experts caution transgender Floridians not to panic about the possibility of criminal penalties, saying that if they were following existing policy when they got their license, they should not face penalties now that the policy has been revoked.

“There are very limited circumstances in which these penalties and enforcement mechanisms can be applied,” Chriss said. “If you are someone who has a valid unexpired license, regardless of what gender marker is on there, you are fine and you are exercising your rights.”

Caraballo also said that the state department can’t control what local law enforcement agencies do, and it is also unlikely prosecutors will want to enforce the law. But because the department oversees highway troopers, they could instruct them to change how they handle things like traffic stops.

Still, she says, the policy is unlikely to be enforced from a crime standpoint.

“Nearly all these bills they’ve attempted to pass, or that they have passed, have criminal components they have rarely tried to enforce,” she said. “No one actually wants to deal with this stuff.”

Is there still a way to have your license correspond to your gender identity?

Currently, Floridians can still update their genders on their passports and birth certificates, which are considered primary identification documents by the FLHSMV. Caraballo and Diaz agree that passports represent the clearest path forward for people who want to have an ID that corresponds to their gender identity.

Birth certificate changes are overseen by the state health department, and are a more intensive process. But the federal government oversees passports and allows people to self-identify when asked for their gender.

“The passport is like a gold standard of identity documents,” Caraballo said. “It is accepted everywhere; it is the most secure form of identity document. So that should be like a priority for every trans person is to get a passport, if they’re eligible.”

‘Hostility and disgust’

Regardless of criminal penalties, advocates fear that the new policy will mean that transgender people are outed if the sex listed on their license clearly doesn’t align with how they look, especially if they’ve already transitioned.

“Just going to buy a six pack at Publix, now you’re going to get carded and you’re going to be outed,” Caraballo said. “That can be dangerous, right? Some people don’t look anything like their gender assigned at birth.”

When Diaz moved to Florida, they had a nonbinary identity on their Massachusetts license, which they weren’t able to use when updating their license, so their license reads as female.

“Every single time I hand it over, I get the looks, I see how someone’s interactions with me just changed in that split second,” Diaz said. “And then I’m on the receiving end of hostility and disgust. I don’t want that for anyone else.”