Voter Identification Laws Create Unique Problems For Transgender Voters

After coming out as a transgender woman, Claire Swinford recalled her first time back at the polls as an “incredibly uncomfortable, very, very embarrassing” experience.

When Swinford, 41, voted in Arizona’s 2010 primary, she was stopped by a poll worker who refused to let her cast her ballot because of her identification documents. While she had an appropriate ID and her name was on the rolls, Swinford, who was early on in her transition from male to female, hadn’t yet changed the gender marker and name on her driver’s license to reflect her appearance, because of the cost, which she said was more than $200.

Despite the poll worker’s challenging Swinford’s gender, she persisted. “Everyone in the place can overhear the conversation where the person is questioning my identity and calling me sir,” she said. The poll worker finally offered her a provisional ballot, and Swinford asked to see a supervisor who could contact the county elections office. The office said Swinford met the requirements and could vote after all, but “it would have been very easy to walk away from that,” she said. 

Transgender refers to the broad set of people whose gender identity or expression does not match those typically associated with the sex assigned to them at birth. Many transgender people go through gender transition, though some do not, said Lisa Mottet, Transgender Civil Rights Project Director at the National Gay and Lesbian Task Force.

At a campaign event Tuesday, Vice President Joe Biden—who famously got “a little bit over his skies” when he endorsed same-sex marriage earlier this year, before President Barack Obama had done so—called transgender discrimination the “civil rights issue of our time,” a rare moment in the political spotlight for the group. That statement came after Biden met at his home earlier this year with a conference of LGBT activists, apparently marking the first time a president has sent a representative to a conference with transgender people.

Transgender people, though, have largely been overlooked in the national outcry over new voter-identification laws that could pose challenges to people of color, low-income voters, seniors, people with disabilities and students.But for Swinford and other transgender and gender-nonconforming people, a trip to the polls on Nov. 6 presents a confluence of the legal and cultural barriers they face when changing identification documents, said Jody L. Herman, manager of transgender research at the Williams Institute at UCLA.

Now the executive director of TransHaven, an advocacy group, Swinford’s Arizona experience was hardly uncommon. Across the country, transgender people face unique challenges when updating gender information on government-issued IDs. Dru Levasseur, a transgender rights attorney for Lambda Legal, an LGBT legal organization, said these challenges can include gaining access to legal resources and proof of costly surgery that not all trans people can afford, want, or need.

“We’re often asked to show a form of identification wherever we go, whether we’re going into a bar or getting on a train,” Levasseur said. “Say, a trans guy like me, if I haven’t been able to change my driver’s license to say ‘M,’ wherever I go people are going to look at that identity document and say, ‘wait a minute this can’t be you.’ And, that can present a whole host of problems.”

Just 21 percent of those who have transitioned have been able to update all forms of ID with their accurate gender, according to the National Transgender Discrimination Survey—and the expense of updating documents is a significant hurdle for many transgender people, who are four times more likely to have a household income of $10,000 or less compared to the general U.S. population.

What's more, the process of updating identification varies dramatically from state to state, and in the case of a name change, 49 states require both court time and legal fees. While those hurdles apply equally to anyone changing their name, certain judges require a trans person to provide proof that they’ve undergone sex reassignment surgery or received medical treatment.

Similarly, in virtually every state, trans people have to provide documentation from a healthcare provider to change the gender marker on their driver's license, and in less than half the states, proof of surgery is required, according to Mottet.

In about half the states, a person must take out an ad in the newspaper to notify creditors of a name change, which is not only an expense but poses a risk of outing a person as transgender. “That is a frightening circumstance for some folks, and in other circumstances, it’s an emotional challenge,” said Casey Pick, programs director of the Log Cabin Republicans, a conservative LGBT organization.

Iden Campbell McCollum, a transgender man featured in Washington D.C.’s Transgender and Gender Identity Respect campaign, changed his name for more than legal reasons. “When people say my name, I know they are recognizing me as a male…for some people, just getting to change their name is the most basic form of expression to say, hey, this is me. I’m Iden. I’m him. I’m he. I’m a man,” he said.

Other documents pose more hurdles. In all but three states, proof of surgery is required to change a gender marker on a birth certificate. In one state, Tennessee, there is even a statute that prohibits a person from ever changing the gender marker on their birth certificate, Levasseur said. And that in turn can make it more difficult to change other documents, noted Mottet.

Ja’Briel Walthour, a 36-year-old transgender woman from Georgia, said she used to live in fear of being asked to present her ID. As a school-bus driver on a military base, Walthour presents her driver’s license to security guards when she enters and exits. “You get asked questions like, ‘well, what is your real name?” and ‘have you gone through a procedure?” she said.

Last spring, Walthour changed the gender marker on her passport, which stopped some of the guards from questioning her when she showed it in lieu of a driver’s license—a feeling she described as “Christmas in April.”

She was able to change that document thanks to a 2010 shift in State Department policy that changed the requirement for updating one’s gender from “sexual reassignment surgery” to “appropriate clinical treatment.”

Because of the expense, Walthour held off on changing her driver’s license until she needed to renew it in October. “Prior to my legal name change, I felt a little disheartened about voting because it was like I still had to use my old name and present not as the gender I knew myself as,” she said.

Walthour’s home state, Georgia, along with Tennessee, Indiana, and Kansas, will require voters to show a government-issued photo ID at the polls on Tuesday. For trans people, these GOP-backed photo ID laws add another element to the onerous process of obtaining the proper identification, according to Keesha Gaskins, senior counsel at the Brennan Center’s Democracy Program.

An April 2012 study from the Williams Institute at UCLA reported that voter ID laws could disenfranchise 25,000 transgender voters, an estimate originally based on nine states that passed the laws at the time. For the four states where the laws will be in effect on Nov. 6, the study projected that nearly 10,000 trans people eligible to vote do not have updated IDs and records—4,429 in Georgia, 2,958 in Indiana, 870 in Kansas, and 1,710 in Tennessee—greatly upping the odds those voters will be confronted about their identity should they turn out to do their civic duty.

“We know that there could be a variety of problems outside of photo IDs because of someone’s name,” Herman, the study’s author, said. In a case where “you transitioned from female to male, and from the poll worker’s perspective there is a female standing in front of them,” a person could run into trouble, similar to Swinford’s experience.

The fear alone of that kind of discrimination or just embarrassment has the potential to deter trans people from going to the ballot box, according to Mara Keisling, executive director of the National Center for Transgender Equality.

Myke Kelly, a gender-nonconforming person in Tennessee, said he changed his appearance to avoid any harassment when he voted in a primary election earlier this year. “I made it a point to go during my work hour and dress more feminine so I wouldn’t have to deal with any hassle,” he said. “Most of my friends and family know me as Myke, although my birth name is Audra. I don’t feel like I need to transition to be who I feel like I am,” he added.

For the presidential election, Kelly, 31, said he plans on bringing his children with him to set an example, but doesn’t want to conform. “I don’t want to have to explain that they’re not going to let me vote if I don’t dress like a girl … I think I would feel more uncomfortable explaining that than explaining why these people won’t let me vote.”

Poll workers rarely receive specific training for gender identity and have the discretion to reject a person’s ID based on a personal judgment, said Keisling. In Indiana, Trent Deckard, a co-director of the Indiana Election Division, said workers are accustomed to seeing an array of IDs that don’t match the voters’ present appearance. “This is a very serious moment, particularly when you’re challenging someone’s suffrage. I like to think that the poll workers, for that situation … wouldn’t do something frivolously,” he said.

Casey Pick, from the Log Cabin Republicans, rejects the idea that the GOP would have any interest in suppressing trans and gender nonconforming voters through ID laws. “It’s more of an issue with the ID rather than voting,” she said.

For Max Wolf Valerio, a transgender man, the political transformation from a Democrat to a Republican was more daunting than transitioning from female to male. Valerio, author of The Testosterone Files, a memoir about his transition, said obtaining a state ID is part of every adult person’s life in the U.S. and not an additional challenge. “Trans people are not hothouse flowers who wilt at the slightest obstacle or pressure. We are resourceful, resilient, and often, extraordinarily strong people,” he said.

Come Election Day, Deckard said that in Indiana he encouraged voters to “make very strong efforts that they use the ID that best resembles who they are.” Campaigns like ‘Voting While Trans,’ a series of PSAs from the National Center for Transgender Equality, and guides like Lambda Legal’s Transgender Rights Toolkit also aim to prepare transgender and gender nonconforming voters for any challenges to their identification. Still, Claire Swinford said facing discrimination at the ballot box holds particular gravitas. “Someone saying you can’t vote is very different than people at the grocery store calling you the wrong pronoun,” she said. “You’re still allowed to buy your groceries, but this was losing a right.”