National ID Act and Transgender Individuals

Saturday, Septemeber 16, 2006

Here is the text I wrote to a support group regarding the Natonal ID Act and its effect on transgender individuals (the context is that I have been attempting to have the NC DMV assign me an appropriate gender designation on my NC drivers' license even though I have NOT had GRS (Gender Reassignment Surgery):


Hi everyone,

I'm not sure...but...my gut tells me that my potential struggle with the DMV may be dead in the water before it even got its feet wet!

Before I go any further...I am obligated to extend my deepest gratitude to (a friend) for her relentless assistance and support. Yesterday she forwarded to me the text of the National ID act, which was passed in May,2005:

H.R. 1268, the Emergency Supplemental Appropriations for FY 2005, Public Law 109-13.

It was bundled along with funding for the DOD, the alleged "war on terror" and tsunami relief.

Here is the text:


No: 109-3
Date: May 13, 2005
President Signs Public Law 109-13, the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005
On May 11, 2005, President Bush signed into law H.R. 1268, the Emergency Supplemental Appropriations for FY 2005, Public Law 109-13. This law provides emergency supplemental appropriations for the fiscal year ending September 30, 2005 for defense, the global war on terror, and tsunami relief. The law establishes and implements regulations for State driver's license and identification security standards. The law prohibits funds from being used by a Federal agency to produce any prepackaged news story, unless the story includes a clear notification that it was prepared or funded by that Federal agency.
P.L. 109-13 prohibits Federal agencies from accepting State-issued driver's licenses or identification cards unless such documents are determined to meet minimum security requirements. It sets forth issuance standards for such documents that require, among other things: (1) evidence that the applicant is lawfully present in the United States; and (2) issuance of temporary driver's licenses or identification cards to persons temporarily present that are valid only for their period of authorized stay (or for one year where the period of stay is indefinite).
Division A-Title VI of the new law contains the following provision of interest to SSA:
Section 6076. Prepackaged News
Unless otherwise authorized by existing law, no funds provided in this Act or any other Act, may be used by an executive branch agency to produce any prepackaged news story intended for broadcast or distribution in the United States unless the story includes a clear notification within the text or audio of the prepackaged news story that the prepackaged news story was prepared or funded by that executive branch agency.
Division B—Title II of the new law includes the following provisions of interest to SSA:
Section 202. Minimum Document Requirements and Issuance Standards for Federal Recognition
Beginning 3 years after enactment, prohibits a Federal agency from accepting, for any official purpose, a State-issued driver's license or identification card unless the State is issuing driver's licenses and identification cards that conform to the standards specified in the new law.
These standards require a State to include, at a minimum, the following information and features on each driver's license and identification card issued to a person by the State:
The person's full legal name;
The person's date of birth;
The person's gender;
The person's driver's license or identification card number;
A digital photograph of the person;
The person's address of principle residence;
The person's signature;
Physical security features designed to prevent tampering, counterfeiting, or duplication of the document for fraudulent purposes; and,
A common machine-readable technology, with defined minimum data elements.
States must certify their compliance with the new standards to the Secretary of Homeland Security. The Secretary of Homeland Security, in consultation with the Secretary of the Transportation, may prescribe regulations establishing the time and manner of the certifications.
States must require, at a minimum, presentation and verification of the following information before issuing a driver's license or identification card: 1) a photo identity document, or other identity document if it includes both the person's full legal name and date of birth; 2) documentation showing the person's date of birth; 3) proof of the person's SSN or verification that the person is not eligible for an SSN; and, 4) documentation showing the person's name and address of principle residence.
States must require evidence of lawful immigration status before issuing a driver's license or identification card to a person. A State may issue a temporary driver's license or identification card to noncitizens who are temporarily present in the United States .
States are required to verify, with the issuing agency, each document required to be presented by the person to obtain a driver's license or identification card.
States must confirm with SSA the full Social Security account number presented by a person to obtain a driver's license or identification card. In the event that a Social Security account number belongs to another person to whom any State has issued a driver's license or identification card, the State must resolve the discrepancy and take appropriate action.
Section 206. Repeal
This law repeals section 7212 of PL 108-458, the Intelligence Reform and Terrorism Prevention Act of 2004. Section 7212 required the Department of Transportation, in consultation with the States and DHS, to promulgate regulations establishing minimum standards for drivers' licenses or personal identification cards issued by States.
NOTE: P.L. 109-13 does not change any other provisions of P.L. 108-458.


National Conference of State Legislatures
REAL ID ACT OF 2005
DRIVER’S LICENSE
TITLE SUMMARY
(printer-friendly version)
On May 11, 2005, President Bush signed into law the “REAL ID Act of 2005,” which was attached to the “Emergency Supplemental Appropriation for Defense, the Global War on Terror, and Tsunami Relief, 2005” (H.R. 1268, P.L. 109-13). Title II of REAL ID—“Improved Security for Driver’s License’ and Personal Identification Cards”—repeals the provisions of a December 2004 law that established a cooperative state-federal process to create federal standards for driver’s licenses and instead directly imposes prescriptive federal driver’s license standards. The following table summarizes the act’s driver’s license title.
Provisions / Citation Summary
Repeal of 9/11 Commission Implementation Act DL/ID Provisions
§206 Repeals §7212 of 9/11 Commission Implementation Act of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108-458), which directed DOT in consultation with DHS to establish a negotiated rulemaking committee of state and federal officials along with other stakeholders to created federal minimum security standards for DL/IDs
Minimum Standards for Federal Use
§202(a)
§205(b) A federal agency may not accept a driver’s license or personal identification card (DL/ID) after May 11, 2008, unless the state has been certified by the U.S. Department of Homeland Security (DHS) in consultation with the U.S. Department of Transportation (DOT) to meet the requirements of the law
The DHS Secretary may grant a state an extension to meet the certification requirement if the state provides adequate justification for noncompliance

DL/ID Document Standards
§202(b) At a minimum, a state shall include the following information and features on a DL/ID: (1) person’s full legal name, (2) person’s date of birth, (3) person’s gender, (4) DL/ID number, (5) digital photograph, (6), person's address of legal residence, (7) person’s signature, (8) physical security features designed to prevent tampering, counterfeiting or duplication for fraudulent purposes, and (9) a common machine-readable technology with defined data elements

Minimum DL/ID Issuance Standards
§202(c)(1) At a minimum, a state shall require the presentation and verification of the following information:
A photo identity document (except that a non-photo identity document is acceptable if it includes both the person’s full legal name and date of birth)
Documentation showing the person’s date of birth
Proof of the person’s social security account number (SSN) or verification that the person is not eligible for an SSN
Documentation showing the person’s name and address of principal residence

§202(c)(3)(B) A state shall not accept any foreign document other than an official passport

§202(d)(3) A state shall subject each DL/ID applicant to mandatory facial image capture

§202(d)(6) A state shall refuse to issue a DL/ID to a person holding a DL/ID from another state without confirmation that the person is terminating or has terminated the other state’s DL/ID

§202(d)(10) A state shall limit the period of validity of all DL/IDs that are not temporarily issued to a period that does not exceed eight (8) years

Verification of Documents Before issuing a DL/ID, the state shall verify, with the issuing agency, the issuance, validity and completeness of each document to be presented

§202(c)(3)(A)
§202(d)(5) A state shall confirm with the Social Security Administration a SSN presented by a person using the full SSN; in the event a SSN already is registered to or associated with another person to which any state has issued a DL/ID, the state shall resolve the discrepancy and take appropriate action

§202(d)(4) A state shall establish an effective procedure to confirm or verify a renewing applicant’s information

Immigration Requirements
Verification of U.S. Citizenship and Lawful Status
§202(c)(2)(A) , (B) Before issuing a DL/ID, a state shall require and verify valid documentary evidence that the person: (i) is a U.S. citizen, (ii) is an alien lawfully admitted for permanent or temporary residence, (iii) has a conditional permanent resident status, (iv) ) is a refugee or has been granted asylum, (v) has a valid, unexpired nonimmigrant visa or nonimmigrant visa status, (vi) has a pending application for asylum, (vii) has a pending or approved application for temporary protected status, (viii) has approved deferred status, or (ix) has a pending application for adjustment of status to that of an alien lawfully admitted for permanent residence or conditional permanent resident status

Temporary DL/ID
§202(c)(2)(C) A state only may issue a temporary license to persons who presents documentary evidence for the categories (v) through (ix) under the evidence of lawful status section above. A temporary DL/ID:
Shall be valid only for the period of the applicant’s authorized stay in the U.S. or one (1) year if there is no definite end to the period of stay
Shall indicate clearly that it is temporary and shall state the date on which it expires
May be renewed only upon presentation of valid documentary evidence that the status by which the applicant qualified for the temporary DL/ID has been extended by DHS

Non-Conforming DL/IDs
§202(d)(11) In any case in which a state issues a DL/ID that does not satisfy the federal requirements, a state shall ensure that that the DL/ID: (A) clearly states on its face that it may not be accepted for federal identification or any other official purpose, and (B) uses a unique design or color indicator to alert federal agencies or other law enforcement personnel that it may not be accepted for any such purpose

SAVE Participation
§202(c)(3)(C) No later than September 11, 2005, a state shall enter into a memorandum of understanding with DHS to routinely utilize the automated system known as System for Alien Verification for Entitlements (SAVE) to verify the legal presence status of a non-citizen applying for a DL/ID

Security and Fraud Prevention Standards
§202(d)(7), (8) and (9) A state shall ensure the physical security of locations where DL/IDs are produced and the security of document materials and papers from which DL/IDs are produced
A state shall subject all persons authorized to manufacture or produce DL/IDs to appropriate security clearance requirements
A state shall establish fraudulent document recognition training programs for appropriate employees engaged in the issuance of DL/ID

§203(a) Establishes a federal criminal penalty for persons who knowingly traffic in false or actual authentication features for use in false identification documents, document-making implements, or means of identification

Data Retention and Storage
§202(d)(1), (2) and (13) A state shall employ technology to capture digital images of identity source documents so that the images can be retained in electronic storage in a transferable format
A state shall retain paper copies of source documents for a minimum of seven (7) years or images of source documents for a minimum of ten (10) years
A state shall maintain a state motor vehicle database that contains: (A) all data fields printed on DL/IDs issued by the state, and (B) motor vehicle drivers’ histories, including motor vehicle violations, suspensions, and points on license

Linking of Databases
§202(d)(12) A state shall provide electronic access to all other states to information contained in the motor vehicle database of the state
Grants to States
§204 DHS may make grants to a state to assist the state in conforming to the minimum federal standards
Authorizes such sums as necessary for the fiscal years 2005 through 2009 to carry out the law (but does not appropriate any money)

Authority
§205 Grants authority to DHS to issue regulations, set standards, and issue grants under the law in consultation with DOT and the states
_____________________________________________________________



A FEW NOTES



Note that this statute says NOTHING regarding change of gender...nevertheless, I cannot help but feel that a national standard will create massive confusion with regards to the TG and TS communities and efforts to achieve appropriate gender designation on our ID's.

My first thought was that this clearly represented a violation and/or abridgement of the language in the 10th Amendment of the U.S. Constituition...namely, that any rights or obligations not specified in the Constitution revert to either the states or to the people. But, considering the nature of the 4th Circuit Court of Appeals (whose jurisdiction governs NC) and the U.S. Supreme court, I would speculate that it is doubtful we would get a ruling using that interpretation. The prevailing winds are not politically with us AT THIS TIME.

Perhaps of greatest concern for TG and TS individuals is §203(a):

"Establishes a federal criminal penalty for persons who knowingly traffic in false or actual authentication features for use in false identification documents, document-making implements, or means of identification"

Will this be used strictly for creation and traffic of false documents? Or, can this be construed to mean anyone with disparate documents. It is highly possible that all personally identifying documents must be aligned...which includes drivers' licenses, social security cards, passports and birth certificates.

cf:

"Linking of Databases
§202(d)(12) A state shall provide electronic access to all other states to information contained in the motor vehicle database of the state
Grants to States
§204 DHS may make grants to a state to assist the state in conforming to the minimum federal standards
Authorizes such sums as necessary for the fiscal years 2005 through 2009 to carry out the law (but does not appropriate any money)"



Obviously, anyone who has NOT had GRS and cannot have specific gender changes made to documents will have disparate ID's.

Furthermore, and I am waiting for specific information from the NC DMV, it is possible that to have gender designation on NC drivers'icenses amended MAY, in the near future, require an amended birth certificate. Anecdotal evidence has shown that this can be a painstakingly slow procedure and there are some states which are loathe to amend a birth certificate. In fact, Idaho, Ohio and Tennessee have ALL refused to amend birth certificates for cases of GRS(as of 2005 statistics).

So...where does this leave us??

Once again, the necessity for transgender and transexual individuals to take part in the political process has now become essential to any effort for procuring fair and equitable civil rights. Unless we are there to work for change INSIDE the system, we can expect that the system will NOT change one whit and we will continue to be marginalized and disenfranchised.

More to come??

I really can't say at this time...I have NOT given up; rather, I think we need to reevaluate the situation, bide our time and gather as much information as we can before appealing to the NC DMV. I will add, however, that the NC Commissioner of Motor Vehicles is responsible for the language in the NC Examiner's handbook. Additionally, the fact that New York State DOES have provisions for amending the gender on a D.L. PRIOR to GRS, as long as one has subscribed to the HBSOC, is a positive note. This N.Y statute can only be used as a persuasive authority outside of New York, but states often listen to persuasive authority in the creation of their own statutes.

Will keep ya'all posted as developments occur

trickster108