In Trying to Ban Gender Marker Changes, Iowa May Have Accidentally Just Made It Easier
In Iowa, not every anti-trans policy is as it seems, and strangely, their new rule governing gender markers on IDs appears to loosen restrictions.
Earlier this year, Iowa passed SF 418, an anti-trans bill that made sweeping changes to the state’s policies regarding trans people. Arguably the most regressive anti-trans law passed to date, it defined sex as ‘the state of being either male or female as observed or clinically verified at birth,’ banned birth certificate changes, and removed Iowa’s nearly two-decade old gender identity discrimination protections in employment, housing, and public accommodations.
On top of it being the first time any discrimination protections are removed from state law, it also marks the first instance of a state with an explicit medical requirement banning gender marker changes. Moreover, under this law, it’s also stipulated all parts of the Iowa government must adopt this new definition of ‘sex,’ and as part of this, the Iowa Department of Transportation announced that effective November 19th, trans Iowans will no longer be able to change their gender markers. Well, at least that’s what they wanted to do.
A Unique Rule
When it comes to IDs, Iowa’s gender marker regulations have always been a bit of an oddity. Interestingly, the old rule—which is in effect for another month—was actually separated in two: one rule for people born in Iowa, and another rule for everyone else. For those born in Iowa, an updated birth certificate was required, and before SF 418, birth certificate amendments required ‘surgery or other treatment.’ However, because not all states have the same policy surrounding birth certificates, Iowa separated them for those born elsewhere and required either an amended birth certificate or proof of surgery.
This unique rule actually made Iowa the only state to acknowledge the fact that not all states treat trans people the same way, giving deference to more progressive states while still allowing people from states like Tennessee (which has never allowed birth certificate changes for trans people) to update their IDs. That said, it also meant that when SF 418’s provision banning birth certificate amendments took effect last July, those born in Iowa were also effectively banned from changing their driver’s licenses.
Yet, it wasn’t a total ban. For the past few months, Iowa residents born outside of the state have still been able to take advantage of the old policy, but now, Iowa Republicans are trying to close that loophole. As part of those efforts, they’re implementing the new policy mentioned above, which purports to make it so that “a person will no longer be able to change the sex designation on the person’s driver’s license or nonoperator’s identification card.” Well, at least it should, but in reality, it might actually be making it easier.
“Verification of Sex”
To understand what makes Iowa’s new rule different from ID change bans in other states, we have to look at the form these bans normally take. The three states that currently have bans in place—Florida, Texas, and Tennessee—include language that requires the sex listed on an ID to match the person’s “birth sex.” This is enforced through a rule stating that the gender/sex must match the first primary document (passport, birth certificate, certificate of naturalisation, etc) ever seen by the state’s DMV-equivalent agency. In short, should someone change their legal documentation before getting an ID from one of these states, their IDs would be forced to reflect that change. This ironically has the added side-effect of affecting detransitioners every now and then.
However, Iowa’s policy does not follow this pattern. Instead, the new policy only states that the sex on the ID “will be identical to the sex listed” on the submitted primary document. And crucially, unlike the other states mentioned, the rule doesn’t explicitly ban gender marker changes. That distinction matters, because by forcing the gender marker to be identical to the one displayed on a primary document without specifying it needs to be the first one seen by the state, it’s very likely that gender changes will still be possible.
It’s a little complicated, but the general gist is that there are a few reasons why a primary document may be required, with most of them involving REAL ID. In Iowa, first-time REAL ID applicants are treated as new applicants, so presenting an updated passport as proof of identity will almost certainly result in the issuance of an updated gender marker. And for those who already have a REAL ID-compliant license, 6 CFR § 37.25(b)(2) actually forces a state to re-verify identity documents when “personally identifiable information” has changed.
In other words, should someone change their name, present an updated passport as part of the REAL ID-mandated verification, and state the information on the license—including the gender—must conform to the information on the new passport, the Iowa Department of Transportation’s policy requires that the gender marker be updated to match the new primary document. Moreover, should this request be denied, it constitutes a clerical error that can be rectified separately.
Still, I will note that because the policy is yet to be implemented, it remains to be seen exactly how and if this will work. However, reading the policy, it becomes difficult to imagine reasons why this wouldn’t be the case. In advocacy organisation One Iowa’s comments against this policy, it was implied that gender changes wouldn’t become impossible under the new framework. Because as long as gender marker changes on passports remain available (the Supreme Court will rule on this issue soon), if anything, it’ll be easier for trans Iowans to secure proper identification.
And because Iowa Code § 17A.23 gives government agencies exceedingly narrow discretion when implementing laws, the Iowa DOT most likely lacks the authority to patch this loophole (which would require overriding passports) without legislative action. For trans Iowans, hopefully it stays that way.
Gender identity isn’t just a box on a form, it’s expressive conduct. Courts have long held that the First Amendment protects how we present and define ourselves (Tinker, Barnette, Wooley).
When the government forces someone to use a gender marker that contradicts their identity, that’s compelled speech. It makes a person say something untrue about themselves on an official document, which the Supreme Court has repeatedly said the government cannot do.
So proposals to remove or restrict gender-marker options aren’t neutral administrative tweaks. They directly interfere with the right to self-expression, force people into government-mandated speech, and chill open identity in public life. That’s why these policies raise serious First Amendment concerns, not just policy disagreements.