Still a crook any way you look
State agencies should not honor court orders to change the sex on someone’s driver’s license or birth certificate, according to an opinion filed by Texas Attorney General Ken Paxton Friday.
He also said state agencies should retroactively correct any changes they’ve made to driver’s licenses or birth certificates over the years based on these court orders.
As attorney general, Paxton does not have the authority to tell other state agencies what to do, but this opinion could be cited in future executive or legislative action.
For decades, state agencies have accepted certified court orders to amend a person’s sex on government issued documents. The Texas Department of State Health Services accepted court orders to change someone’s sex on their birth certificate, and the Texas Department of Public Safety allowed changes to driver’s licenses if someone presented an amended birth certificate or a court record.
That came to a halt in August for DPS, at least, and the agency asked Paxton’s office for an official opinion in September.
Ian Pittman, an attorney who represents transgender Texans, said Paxton’s recent finding was not a surprise.
“He purports to order things he has no authority to do,” Pittman said. “It’s red meat for the base, but it doesn’t legally change anything.”
But if history is any guide, Paxton’s latest maneuver could cascade into real changes. In 2022, Paxton issued a similar opinion, finding that providing a child with gender-affirming care could be considered child abuse under Texas law. Abbott, citing that opinion, issued an executive order, directing the state’s child welfare agencies to investigate parents of trans children.
The Texas Supreme Court ultimately ruled that Abbott and Paxton had overstepped, but allowed the investigations to continue.
“It is well-settled that an Attorney General opinion interpreting the law cannot alter the preexisting legal obligations of state agencies or private citizens,” Justice Jimmy Blacklock, now the chief justice, wrote in the ruling.
Pittman said he and his clients are prepared for Abbott to issue an order requiring state agencies to comply with Paxton’s opinion, or for the Legislature to pass one of several bills filed this session that would further restrict trans people from changing their gender markers on government documents.
“What this shows us is what we already knew: If they have the ability, or think they do, they will try to do this,” he said. “But bureaucratic inertia may work in the favor of people this would affect.”
He said it wasn’t clear how easy it would be for DSHS or DPS to retroactively identify and change those records if they were ordered to do so, although he noted it might come up when people have to renew their driver’s licenses.
See here, here, and here for some background. I don’t know what happens from here, but there will be legal challenges and things will be messy and may well get worse. To say the least, it’s an extremely tough time to be a transgender person these days, and that’s even before taking into account some truly appalling bills that likely aren’t going anywhere but are scary and offensive just by their existence. Be kind to the trans, non-binary, genderqueer, intersex, and other people in your life who are under attack. We can’t be quiet in these dark times.
It appears that “make me” is now the governing attitude about following the law when it differs from the MAGA script.