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TRANScend the Ballot: What to Know When Voting While Trans

TRANScend the Ballot: What to Know When Voting While Trans

By: Ben Palmer

September 29, 2020

 

Elections have been highly litigated in Wisconsin. Always consult an official, government resource for the latest information on voting. In Wisconsin, elections are run by city or county clerks’ offices. Enter your address here to determine your Municipal Clerk. Then, search for your clerk’s name or office name to locate their official website to access the latest information on voting.

 

Key Links

Register to Vote (EN / ES)                                         Find Your Polling Place (EN / ES)

Request/Track an Absentee Ballot (EN / ES)             Update Your Address with the DMV           Wisconsin Voting Accessibility                                Complete the Census

 

Voting After a Name Change

In Wisconsin, a name change becomes effective for the purposes of voting when you receive a new photo ID. It is not effective for the purposes of voting until you have received that ID, even if you have requested it or have had your name legally changed by a court. (See our Guide for information on how to pursue a name or gender marker change and update your identity documents.) If you have changed your name and received your new photo ID, your name change is effective for voting and you must update your voter registration with your current name (see below, Registering to Vote).

Photo IDs are often Wisconsin Drivers Licenses or ID cards issued by the Wisconsin DMV. An updated U.S. Passport is also sufficient, as are several other forms of ID. See this resource from the Wisconsin Elections Commission (WEC) for more types of acceptable ID. If you have applied for a new photo ID but have not yet received it, you should continue to vote using your prior name and voter registration (unless your address has changed, in which case only update your address).

Gender identity or expression should not impede your access to the polls. If you are voting with a photo ID in which you express your gender differently than you do currently, you should still vote. Wisconsin Law requires only that a photo “reasonably resemble” the voter presenting the ID. Wis. Stat. § 6.79(2)(a). Election Officials are prohibited from commenting on your appearance, weight, or other physical features. Election Officials are explicitly instructed to treat you with “dignity and respect.” Similarly, Election Officials have no reason to comment on the gender marker on your photo ID. The only data from the ID that they are allowed to consider is whether you reasonably resemble the photo and whether the name on the ID matches the name on the voter rolls. If you are anxious about voting with an outdated photo, you may consider requesting an absentee ballot. (See below, Voting Absentee).

 

Confidential Voter Registration

If you are a survivor of intimate partner violence, stalking, or other violence, you should know that when you register to vote your current address will become public to anyone who knows your name and birthdate. Similarly, if you are transgender, gender non-conforming, or nonbinary and have legally changed your name, or go by a name different than your legal name, registering to vote may out you. If someone knows where you live, they can use your address to look up your voter registration which reveals your current legal name. Admittedly, this requires effort and some level of knowledge. However, there are ways to protect yourself.

If you are a survivor of intimate partner violence, sexual assault, or stalking, you may have your voter registration listed confidentially. Wis. Stat. § 6.47. You are eligible to take advantage of this option if any one of the following applies to you:

 

  • A court has granted you a protective order that is in effect;
  • A sheriff, chief of police, or district attorney has provided you a signed affidavit verifying that you were the victim of one such crimes and you continue to be threatened;
  • An authorized representative of a domestic abuse, sexual assault, or stalking victim services provider can sign an affidavit ([Example]) verifying you either
    • reside in the facility; or
    • received services within the prior 24 months; or
  • Proof you participate in the Wisconsin Department of Justice’s Safe at Home address confidentiality program.

 

If any of those situations apply, you can request a confidential listing of your voter registration. To do so, you’ll need to register in person at your Municipal Clerk’s office with:

 

Because many Municipal Clerks have altered hours due to the COVID-19 pandemic, contact your clerk before going to their office to ask for their current procedures.

 

Registering to Vote

Wisconsin voters may register to vote up until 5:00 pm 20 days before the election. For the 2020 Presidential Election, that is 5:00 pm on October 14, 2020. If you miss this deadline, you can still register on election day by going in person to your polling place.

If you do not know whether you are registered to vote, visit myvote.wi.gov and use your name and date of birth to look up your voter registration. If you are not registered, you may register online using the same website. If you moved in the last 28 days, you should vote at the prior Wisconsin address where you lived for at least 28 days. This time period was changed by court order and is current as of writing. You will need a valid photo ID.

If you do not have a valid photo ID, you should complete the voter registration form by proceeding through the online process to do so here. You will then need to mail or deliver your form to your Municipal Clerk (locate them here) along with a proof of residence document.

 

NOTE: If you need to register to vote and it is after October 14, 2020 (20 days from the election), registration by mail is no longer available. You may still use the online process to complete the form, but bring it and a proof of residence document in-person to your Municipal Clerk’s office by 5:00 pm October 30. Because many Municipal Clerks have altered hours due to the COVID-19 pandemic, contact your clerk before going to their office to ask for their current procedures.

Alternatively, you may bring the form with you to your polling place on election day or complete the form at your polling place with the assistance of an Election Official (they will have copies of the form), just be sure to bring an acceptable proof of residence document. Due to the COVID-19 pandemic, your polling place may be different than where it is normally. Check here on election day to ensure that you know where to go.

 

If you have a valid Wisconsin photo ID, but the address is out of date, you may update your address with the Wisconsin DMV online free of charge. You do not need to visit a DMV location or pay for a new ID to make this change. Visit their website here. Once this change is made, the DMV system will update myvote.wi.gov and you may proceed to register to vote online, here.

MyVote está disponible en Inglés y Español. Registrarse para votar aquí.

 

Voting Absentee

After you register to vote, or if you are already registered, you may request an absentee ballot here. Absentee ballots can be tracked throughout the entire process almost as if they were a package from an online retailer. If you would prefer not to return your ballot by mail, many Municipal Clerks have established secure election drop boxes. Absentee ballots can also be dropped off on election day at your polling place. Contact your Municipal Clerk for more information.

 

Conclusion

Thank you for preparing to vote! Voting is one of the foundational ways we can steer the course of our communities. Don’t forget to also fill out your census. It takes about 10 minutes to complete and is available in 13 languages online and moreover the phone.

We hope that you can have a safe and fulfilling experience on election day. If you do not, there are procedures for filing complaints with the WEC and the Federal Elections Commission. Be aware, however, that these processes quickly become complicated. The Democratic Party of Wisconsin also has a voter assistance hotline: (608) 336-3232.

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Legally X- The X Gender Marker

By: Avery Cordingley

15 January 2020

Legally X

In 2010, Arkansas became the first state to allow for an “X” gender designation on one’s license or state-issued ID. At the Arkansas Department of Finance and Administration, staff were instructed via an internal email that the department’s official policy was “to allow a licensee to change their gender as requested, no questions asked, no documentation required.” It wasn’t until 2018, however, that a resident took the state up on the offer to be legally recognized as non-binary on their state ID. Then Director of Communications Scott Hardin confirmed that the state’s stance had been on the books for eight years, despite having been enacted without any fanfare.

 

While Arkansas’ policies on gender markers have always been a bit murky, other states have, of late, been quite clear on the matter. In 2016, Oregon made headlines nationwide when a circuit court judge ruled that Jamie Shupe may change their legal gender designation to non-binary, becoming the first American citizen to obtain such a designation. At the time of the ruling, no policies were in place with the Oregon DMV or the State to put Shupe’s gender change to paper, but by 2019, any Oregon resident may change their gender marker to M, F, or X without being required to submit any proof of gender.

 

Oregon and Arkansas are no longer alone in allowing for an “X” on one’s license. 15 states and the District of Columbia currently allow for a non-binary “X” designation on a state ID or driver’s license. Pennsylvania, New Hampshire, and Hawaii will soon follow in 2020, Illinois in 2024. (National Center for Transgender Equality).  A further four states allow for an “X” on one’s birth certificate (Senate and General Assembly of NJ, Chapter 58). The states all differ in how easily residents can update their documents. Some allow for a self-stated gender designation, several require doctor’s notes or other proof of one’s gender identity, while a couple go so far as to require the person to petition a judge for permission to have an “X” on their paperwork.

 

Wisconsin joins the majority of US states in having no provision to allow for a third gender option on its licenses or state IDs, and no announcements about a move toward such a change. Despite this, the state has made steps over the past decade toward easing the requirements for changing the gender marker on one’s documents. In Wisconsin, a person wishing to change their gender marker on their driver’s license or other state-issued ID only needs certification from a medical or mental health professional, rather than having to show proof of surgical treatment. Wisconsin does not have a specific form the applicant needs to have filled out, and will instead need to request a note or letter from their provider. This can further simplify the process for many applicants since any health provider will suffice for this letter; some states only accept this certification from a limited range of providers.

 

While Wisconsin does not currently have anything in the works to begin allowing for a third gender option on licenses or state IDs, recent nationwide trends shed a positive light on the matter. Since Oregon’s court case made headlines five years ago, state after state has made the move to add a third gender option with increasing rapidity. More states could amend policies of their own accord, or with shifts in government, or the courts could drive the change as residents bring suit against states.

 

In summary, while currently Wisconsin has no policy allowing for a third gender on licenses and state IDs, the momentum across the country is building. It is not out of the realm of possibility for policies to shift dramatically within the next few years. A decade ago, no states had policies legally recognizing a third gender, and now, over twenty states recognize a third gender in some capacity. In time, that number is likely to increase, and, optimistically, become the standard nationwide.

 

 

Resources

How Trans Friendly is the Driver’s License Policy in Your State?

Overview of State Laws – Non Binary and Intersex

 

Bibliography

AAMVA. “Resource Guide on Gender Designation on Driver’s Licenses and Identification Cards.” American Association of Motor Vehicle Administration, September 2016. file:///C:/Users/Avery/Downloads/ResourceGuideOnGenderDesignationOnDLID_September2016.pdf.

“How Trans Friendly Is the Driver’s License Gender Change Policy in Your State?” National Center for Transgender Equality, n.d. https://transequality.org/sites/default/files/docs/id/Drivers%20License%20Grades%20Nov%202019.docx.pdf.

New Mexico Department of Health. “New Mexico Becomes Fourth State to Allow Gender-Neutral Sex Designation on Birth Certificates,” October 19, 2019. https://nmhealth.org/news/information/2019/10/?view=810.

O’Hara, Mary Emily. “‘Nonbinary’ Is Now a Legal Gender, Oregon Court Rules.” The Daily Dot, June 10, 2016. https://www.dailydot.com/irl/oregon-court-rules-non-binary-gender-legal/.

Intersex and Genderqueer Recognition Project. “Resources: Non-Binary Gender. Intersex.,” October 14, 2019. https://www.intersexrecognition.org/resources.

Senate and General Assembly of NJ. Chapter 58 (Corrected Copy), Pub. L. No. P.L. 1984, § 1, 191 (2018).

Sosin, Kate, and Nico Lang. “Arkansas — Yes, Arkansas — Quietly Begins Issuing Gender-Neutral IDs to Non-Binary People.” Into, October 16, 2018. https://www.intomore.com/impact/arkansas-yes-arkansas-quietly-begins-issuing-gender-neutral-ids-to-non-binary-people.

———. “Utah among Growing Number of States Issuing Gender-Neutral IDs.” NBC News, March 18, 2019. https://www.nbcnews.com/feature/nbc-out/utah-among-growing-number-states-issuing-gender-neutral-ids-n984326.

 

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Changes on the Horizon for Trans Care and Coverage

In April, a federal court opened the door for transgender Medicaid recipients to get coverage for gender-affirming care. Although a final decision in the case is still pending, individuals who receive BadgerCare Plus or any other form of Medicaid may now be able to receive some services that were previously excluded under state Medicaid rules, including surgeries and some hormone therapy.

Wisconsin Medicaid rules have long had an exclusion for “transsexual surgery,” hormone therapy, and other types of gender-affirming care. However, there is no such exclusion in federal Medicaid law. In addition, the Affordable Care Act includes an anti-discrimination rule (also known as Sec. 1557 of the ACA) that has been interpreted to cover transgender individuals and gender-related care. In March, based on this rule and on equal protection grounds, the Supreme Court of Iowa struck down Iowa’s Medicaid exclusion for gender-affirming care. Shortly after that decision, however, Iowa Gov. Kim Reynolds signed a budget bill that reinstated the ban, in spite of the ACA’s prohibition on coverage discrimination.

In April, a Wisconsin federal court issued a preliminary injunction in Flack v. Dep’t of Health Services, the case challenging our Medicaid exclusion. The injunction covers all Medicaid recipients seeking medically necessary gender-affirming care, but there are limitations on what care is covered – the specific exclusion on surgery has been struck down, but there is no guarantee of coverage for other trans-related services, including facial feminization surgery, voice therapy, and potentially even some hormone therapies. The case is ongoing and awaiting a final decision.

Meanwhile, the Trump administration has released a proposed rule to roll back Sec. 1557 from the ACA, which would mean that insurers and providers would no longer be prohibited from discrimination against transgender patients and their care. A recent article from the Kaiser Family Foundation outlines the proposed changes and the likely impact on disparity populations, including LGBT individuals. Comments are open until August 13, 2019.

The impact of this proposed rule on cases such as Flack remains to be seen; however, TLHW will follow the cases and provide updates as they become available.

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Trump Administration Proposes to Define the Term “Sex” Under Federal Law

A memo obtained by the New York Times outlines the Trump Administration’s proposal to define the term “sex” under Title IX. The Trump Administration is considering a proposal to that would narrowly define “sex” under Title IX as “either male or female, unchangeable and determined by the genitals that a person is born with.”

Title IX is a federal civil rights law that prohibits discrimination in any education program or activity on the basis of one’s sex. Covered institutions – such as schools – are prohibited, among other things, from subjecting “any person to separate or different rules of behavior, sanctions, or other treatment” on the basis of sex.” The law currently, though, does not define the term “sex.” Numerous federal courts have interpreted Title IX’s prohibition against sex discrimination to include discrimination on the basis of gender identity, thereby protecting transgender students from discrimination within educational settings. For example, transgender students within these courts have successfully used Title IX to fight school district policies that prohibit them from using bathrooms and/or locker rooms that align with their gender identities.

If the Trump Administration adopts this narrow definition of “sex,” the use of this definition could extend to other federal civil rights laws as well; thus eliminating protections under federal law for transgender persons. Additionally, this narrow definition, if adopted, would likely create some confusion, and possibly some harm, around the process of changing gender markers on identity documents (especially with federal documents).

The Trump Administration has yet to formally propose its definition of “sex,” although it is expected to later this year. Once it does, there will be a public comment period, generally around 60 days. After the public comment period ends, the proposed definition would be presented to the United States Department of Justice (DOJ) for its consideration. If the DOJ determines that the definition is legal, the definition would be approved and enforced within Title IX and possibility other federal laws.

  1. Erica L. Green, Katie Benner & Robert Pear, ‘Transgender’ Could Be Defined Out of Existence Under Trump Administration, The New York Times, Oct. 21, 2018, available at: https://www.nytimes.com/2018/10/21/us/politics/transgender-trump-administration-sex-definition.html.
  2. 34 C.F.R. § 106.31(b)(4).
  3. See, e.g., Whitaker v. Kenosha Unified School District, 841 F.3d 730 (7th Cir. 2017)

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