*This is being reported by the Dallas Voice. A response by the Texas House LGBTQ Caucus is here.
Texas Attorney General Ken Paxton ramped up his war on transgender Texans yet another notch today (Friday, March 14), issuing a “legal opinion” declaring that state district courts do not have the judicial authority to order governmental agencies to change the gender markers on a trans person’s government-issued identification documents to reflect their actual gender identity rather than their gender assigned at birth.
Paxton also instructed state agencies to “immediately correct any unlawfully altered driver’s licenses or birth certificates that were changed pursuant to such orders.”
But the AG’s “opinions” are not legally binding on the courts, and Lambda Legal’s South Central Regional Director Shelly Skeen noted that her organization, as well as the ACLU, already have legal challenges in the works.
Paxton’s “opinion” was issued in response to a request made last September by the Texas Department of Public safety, the state agency which issues driver’s licenses in this state. A summary of the “opinion” reads:
“The ‘judicial power’ endowed to district courts does not countenance ex parte orders directing state agencies to amend a person’s biological sex on driver’s licenses or birth certificates. The underlying proceedings are coram non judice, and the resulting orders are void. State agencies must immediately correct any unlawfully altered driver’s licenses or birth certificates that were changed pursuant to such orders.”
(Ex parte means “on one side only; by or for one party.” Coram non judice means “not before a judge,” or “before one not a judge.”)
What Paxton is saying, Skeen explained, is that courts have been issuing orders directing state agencies to change gender markers on official documents such as birth certificates and driver’s licenses “without the agency being a part of the case.”
But, she added, “Courts have the authority to issue court orders based on what they find given the facts in any given case. The state doesn’t need to be party to that case.”
Skeen continued, “A court order is part of what the judiciary gets to do — interpret the law. The legislature makes the law, and the executive branch [of which Paxton is a part in Texas] is supposed to enforce the law. When a court issues an order, that order [applies to] the executive branch, and that order is entitled to full faith and credit under the U.S. Constitution.”
That means, basically, that Texas is required to honor court orders issued in other states, with a very few exceptions.
“We know the attorney general’s opinion is non-binding. But we also know state agencies will try to comply with it. Nevertheless, his opinion — in my opinion — is wrong. He is choosing to issue a non-binding opinion that is contrary to many legal doctrines, including separation of powers.” Shelly Skeen, Lambda Legal South Central Region director
“We know the attorney general’s opinion is non-binding. But we also know state agencies will try to comply with it,” Skeen said. “Nevertheless, his opinion — in my opinion — is wrong. He is choosing to issue a nonbinding opinion that is contrary to many legal doctrines, including separation of powers.”
Ash Hall, policy and advocacy strategist on LGBTQIA+ rights for the ACLU of Texas, said in a written statement, “We condemn Ken Paxton’s misuse of his office to repeatedly target transgender Texans. Attorney general opinions are non-binding and cannot supersede court orders. State agencies have no authority to retroactively change anyone’s valid legal documents.
“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,” Hall said. “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.”
“We condemn Ken Paxton’s misuse of his office to repeatedly target transgender Texans … State agencies have no authority to retroactively change anyone’s valid legal documents.” Ash Hall, policy and advocacy strategist on LGBTQIA+ rights for the ACLU of Texas
An ACLU of Texas spokesperson added that there “not much more we can comment on beyond that yet since we don’t know how they plan to enforce this.”
Skeen said that anyone who finds their government-issued IDs have been or are being changed should contact the Lambda Legal Help Desk or the ACLU of Texas as soon as possible. She also stressed that legal challenges are already moving through the courts, including Fowler et al v. Stitt et al which is currently pending before the U.S Supreme Court.
According to the website, Lambda Legal filed that lawsuit in the U.S. District Court for the Northern District of Oklahoma on behalf of three transgender people born in Oklahoma — Rowan Fowler, Allister Hall and one plaintiff identified by his initials C.R. — after Oklahoma Gov. Kevin Stitt issued an executive order in late 2021 that other state officials have invoked in denying transgender people’s applications to correct their birth certificates. That order is a reversal of prior policy, which had permitted such corrections for years, the lawsuit says, arguing that the government’s actions violate equal protection, privacy and liberty under the Equal Protection and Due Process Clauses of the U.S. Constitution and that forcing transgender people through their birth certificates to identify with a sex that conflicts with who they are violates their free speech rights under the First Amendment.
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