California may not require the DL-329 form to change a gender marker on a driver's license

[tim]

Edited to add, May 2019: This post is now, thankfully, obsolete. In January 2019, Governor Jerry Brown signed SB 179, which allows people applying for a new or amended driver's license or ID card to self-certify their own gender category of male, female, or nonbinary. There is no formal requirement for a doctor's letter anymore. Keeping this post up for historical reasons.

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Y'alls, this is kind of big news. Photographic evidence first:







If you're confused, that's understandable. A long time ago, I lived in California and had a driver's license with my old name, and the sex I was coercively assigned at birth. Then I moved to Oregon, and legally changed my name to the name I use now. I got a driver's license in Oregon, which made my California driver's license invalid. Two years ago, I corrected my passport to have the correct gender marker, which I did immediately after the State Department reformed their guidelines for changing gender markers on passports. Previously, you had to submit evidence of having had surgery (the question of what kind of surgery was a bit fuzzy) in order to change your gender marker. Starting in mid-2010, all you needed was a letter from a doctor saying you were undergoing appropriate treatment for gender transition. There was no longer any requirement for surgery, hormones, or counseling.

When I moved back to California last year, I got a new driver's license. I presented my passport, myself, and my old Oregon driver's license as ID. Even though my Oregon driver's license said "F", presumably the correct gender marker on my passport -- as well as my appearance, which was close to what it is in the userpic attached to this post -- prevailed. I did say I'd had a CA driver's license before, but the DMV worker was unable to find any record of it. So, I had a CA driver's license with my correct gender on it.

California law says that to change the gender on your driver's license, you're supposed to submit a DL-329 form. I didn't want to do that, for reasons I'll get to. I figured that having been out of state would be sufficient to bootstrap a clean record instead.

And that worked, for about a year. A few months ago, I got a letter from the DMV saying that during a review of records, it had been discovered that there were two people with the same Social Security number who'd had a driver's license -- of course, those two people were my old name (listed as F) and my correct name (listed as M). In a phone call, I explained to the worker at the Records Security Division who'd written the letter that I did not intend to submit a DL-329 form, but that I would be happy to send her a copy of my legal name change decree, which I did. I also included a photocopy of my passport.

I didn't receive a response to this letter for several weeks, so I called back the person I had spoken to before. She said that I would still have to submit a DL-329 form, and that my license would be invalidated if I didn't. I asked what I was supposed to do for a driver's license if I didn't submit the form. She said they would reissue my license with an 'F' gender marker. I asked how I was expected to go to the DMV and prove I was an 'F' given that I had no current driver's license with that marker, no passport, and no other ID that has a gender marker. She said I should show my birth certificate. (Actually, for all she knew, I might already have corrected my birth certificate; I have everything I need in order to do so.) I asked when my license was going to be invalidated. She said "as soon as I send the letter saying so", but didn't say when she was going to send the letter.

Today, I got the letter shown above in the mail. Because I was able to (effectively) change my gender marker by submitting only a legal name change and copy of a corrected passport, I expect that the DMV will allow any other trans person to do the same -- otherwise, it would be unfair.

If you're familiar with the rules, you might be asking, "Tim, aren't the requirements for correcting a passport very similar to what's stated on the DL-329 form?" Yes, except for one thing: the DL-329 has separate sets of boxes for a doctor to check for "Demeanor" and "Gender identification". In both cases, the only options are "male" and "female". (There's a third set of boxes where the physician gets to choose whether your gender identification is "complete" or "transitional".) Here are some of the things that are insulting about this form:

• The assumption that your demeanor can be different from your gender identification.
  
• The assumption that your gendered "demeanor" is relevant to your ability to operate a motor vehicle safely.
  
• The assumption that everyone has a demeanor that is either male or female, not both, and that everyone has a gender identification that is either male or female, or not both.
  
• The assumption that a medical doctor is automatically qualified to assess whether someone's "demeanor" is male or female.
  
• The assumption that a department of motor vehicles should be in the business of assessing someone's "demeanor".
  

I see a trans-affirming primary care doctor who would have been willing and able to fill out this form correctly for me. That's not the point. What does it mean to have a "male" or "female" demeanor? Can you define that precisely? I don't think the DMV can. If I wear barrettes in my hair, does that make my demeanor "female"? If I take them out, does that change it to "male"? (Not a hypothetical question.)

Fortunately for trans Californians, you don't have to fill out this insulting form anymore; if you're required to, contact me and we'll make sure that the department is aware that you're aware that someone else was allowed a correction without filling it out, so why shouldn't you be granted the same right?

Caveats: I am not a lawyer. If you try this and your records get irreparably screwed up, it's not my fault. It's possible that the fact that I had a gap in between the period of validity of my old 'F' license, and my new 'M' license, affected things (although I don't think that should matter). With that said, I think that those who feel they are in a position to do so should start challenging the system -- this is the crack that we can pry open to break the whole oppressive system apart.

If you know anybody at a trans rights group that deals with California, you might want to let them know about this. (I've learned from experience that these groups only seem to talk to certain kinds of people, of which I am not one.) And please redistribute this post far and wide.

On Facebook, a friend noted: "a keystone of the enforcement of administrative law is not making exceptions. you know why i love exceptions? because they let you poke holes in bad policies and insulting procedures."

Comments

[juli]

[redbird]

Maybe gender is how we think of ourselves, and "demeanor" is how random strangers read us? I can see that as being a useful distinction for some conversations, but I doubt it's what the DMV has in mind.

[transitivity]

Very cool!

[ranyart]

Whoa, this is fantastic. I don't remember if I've mentioned my rage-inducing DL-329 adventure before but my doctor from NC (known as THE trans-friendly doctor in the area!) refused to mark the "complete" option because I hadn't had a hysterectomy. It was a huge slap in the face and I still get angry when I think about it.

[tim]

That's terrible! Just goes to show how often people or groups advertised as "trans-friendly" are the opposite.