Voting While Trans: How Voter ID Laws Unconstitutionally Compel the Speech of Trans Voters

Emmy Maluf* March, 2024

Introduction

Lawmakers pushed through voter ID reforms in my state, requiring every voter to present a photo ID with a gender marker. Since I was unable to do so, I was a victim of “de facto” disenfranchisement and voter intimidation tactics that are now, unfortunately, all too common.
—Respondent to 2015 U.S. Transgender Survey¹

Over the past decade, state legislatures have enacted a spate of new laws making it more difficult to vote.² In particular, states are instituting or strengthening voter ID requirements.³ As of this writing, five states are considering stricter voter ID requirements mandating that voters present photo ID without exception.⁴ And some states have already enacted more restrictive voter ID laws. In March 2023, for example, Idaho banned student ID cards as a form of voter identification, further restricting the ways in which voters may verify their identity.⁵ In the 2022 midterm elections, Nebraska voters approved a ballot initiative to require voters to present photo ID.⁶ Thirty-six states currently request or require voter ID for in-person voting.⁷

Much scholarship and media has explored how voter ID laws disproportionately impact minorities, especially people of color.⁸ Such attention is necessary. But attention to the unique impacts of voter ID requirements on transgender⁹ voters is necessary too.¹⁰ And, crucially, voter ID laws especially impact trans people of color. Trans people are more likely to be Black and Hispanic or Latinx than the general population.¹¹ At the same time, voter ID laws have a disproportionate impact on voters of color; for instance, strict voter ID laws exacerbate the racial turnout gap.¹² Voters of color are less likely to have qualifying IDs to vote in their states.¹³ Voter ID laws are also often administered in a discriminatory manner—poll workers are more likely to ask voters of color for their IDs than they are white voters.¹⁴

Trans people of color are also more likely to live at or near the poverty line as compared to the general population.¹⁵ People experiencing poverty are among those most impacted by voter ID laws.¹⁶ Trans people, particularly trans people of color, are also disproportionately criminalized.¹⁷ In many states, individuals incarcerated for felony convictions and returning citizens lose their right to vote.¹⁸ Thus, in addition to the burdens they face due to their trans status, trans voters of color face added barriers due to the intersection of that status and their race.

The franchise is especially at risk for trans voters in states where they must appear in person to vote. Forty-two states conduct their elections primarily in person, as opposed to allowing voters to vote fully by mail.¹⁹ Of the more than 697,800 voting-eligible trans people who live in those in-person-voting states, almost half (43 percent) lack an ID that correctly reflects their name or gender.²⁰ To meet ID requirements, trans voters must either obtain an accurate voter ID in the first instance or go through the arduous process of updating existing documents with an accurate gender marker, photo, or name (and sometimes all three).²¹ The administrative burden of either option may be challenging and costly.²² But not doing so may cost trans voters their right to vote: If a mismatch occurs—between the voter’s name on the registration record and their ID, between the gender marker on the ID and the voter’s appearance, or both—poll workers may deny the voter the ability to cast a regular ballot.²³

And more is at stake than the right to vote. When a trans voter presents an ID that does not align with their gender identity, the trans voter effectively is forced to out themself.²⁴ “Outing” is defined as revealing the sexual orientation or gender identity of an LGBTQ+ person without their consent.²⁵ For nonpassing and cispassing trans voters alike, presenting an ID that does not align with their gender identity forces them to express a message they do not believe in—that they are someone they are not.²⁶ This, in addition to the expressive and emotional harm to the trans voter, puts them at risk of harassment, “stigmatization, discrimination, and sometimes, violence.”²⁷

Despite the impact of voter ID laws on trans voters, little scholarship exists in this area. In this sparse field, however, scholars have recently suggested extending the holding of Bostock v. Clayton County to argue that voter ID laws—as applied to trans and nonbinary voters—are unconstitutional sex-based classifications under the Nineteenth Amendment.²⁸ This Note offers another legal avenue through which to challenge voter ID laws, arguing that such requirements as applied to trans voters constitute unconstitutional compelled speech under the First Amendment. Part I outlines the state of voter ID requirements and the outsized impact these requirements have on trans people. Part II explores the First Amendment’s compelled speech doctrine and its application to the expression of gender identity. Part III argues that requiring trans voters to present ID constitutes compelled speech that should fail strict scrutiny. The Note concludes by suggesting that states should address this problem by either expanding the currently accepted forms of voter ID or abolishing voter ID requirements entirely.

I. Voter ID Requirements and the Cost of Compliance

This Part provides background information on state voter ID requirements. It also explores the obstacles trans voters face in acquiring IDs that accurately reflect their names and gender identities—and, in turn, the harm voter ID laws inflict on trans voters.

A. The Current Landscape of State Voter ID Requirements

Thirty-six states request or require voters to show some form of ID at the polls.²⁹ The remaining states and Washington, D.C., use other methods to verify a voter’s identity, including checking identifying information (such as a signature) against the voter’s file.³⁰

This has not always been the case—in fact, many of these voter ID laws are recent developments. For instance, in 2022, Missouri enacted a bill establishing a photo ID requirement, disenfranchising many voters unable to produce photo ID on Election Day.³¹ The year before, in 2021, Wyoming enacted its first voter ID law,³² and Arkansas removed the option of a sworn affidavit as an alternative to presenting a photo ID.³³ Also in 2021, Arkansas abolished its prior photo ID exemption for individuals with sincere religious beliefs that prevent them from taking a photograph.³⁴ And Montana enacted a bill that requires voters without state ID, military ID, tribal ID, or a passport to provide two alternate forms of ID, one of which must include a photograph.³⁵

According to a taxonomy created by the National Conference of State Legislatures, voter ID requirements take one of four forms: (1) strict photo ID, (2) strict nonphoto ID, (3) nonstrict photo ID, or (4) nonstrict nonphoto ID.³⁶ These categories encompass the thirty-six states that have voter ID laws on the books.³⁷ The remaining thirteen states and Washington, D.C., verify voters’ identities without presentation of identification documents.³⁸

1. Strict Photo ID

In strict photo ID states, individuals must present a valid form of photo ID to cast a ballot.³⁹ Examples of accepted forms of photo ID include driver’s licenses, state-issued ID cards, military IDs, and tribal IDs.⁴⁰ Voters who fail to present photo ID must vote by provisional ballot on Election Day.⁴¹ After the voter fills out the provisional ballot, it is placed in a secrecy envelope rather than in the ballot box.⁴² The voter must then take additional steps after Election Day to confirm their identity and ensure their vote will be counted.⁴³ Typically, a voter without an acceptable form of ID on Election Day must return to the election office within a few days and present an acceptable form of ID.⁴⁴ If they cannot do so, the office does not count their provisional ballot.⁴⁵ In practice, strict photo ID laws disenfranchise nearly every voter who seeks to vote in person without the requisite ID, as those voters will likely be unable to obtain the proper documentation within days of the election.⁴⁶ And half of strict photo ID states take their already-stringent strict photo ID laws a step further: they do not offer no-excuse absentee voting, meaning voters must provide a state-approved excuse (like “out of county on Election Day” or “illness or disability”) to vote by mail.⁴⁷ Being trans would not qualify. Thus, these strict photo ID states completely disenfranchise trans voters without accurate photo ID.

Currently, ten states are strict photo ID states.⁴⁸

2. Strict Nonphoto ID

In strict nonphoto ID states, valid voter ID may be—in addition to the forms of photo ID acceptable in strict photo ID states—a bank statement with the voter’s name and address or another document without a photo.⁴⁹ Strict nonphoto ID states follow similar election processes to strict photo ID states: voters without an acceptable document must vote by provisional ballot on Election Day.⁵⁰ As in strict photo ID states, a voter without an acceptable form of nonphoto ID generally must return to the election office within a few days of the election and present an acceptable form of ID.⁵¹ If they cannot do so, the office does not count their provisional ballot.⁵²

Currently, there are three strict nonphoto ID states: Arizona, North Dakota, and Wyoming.⁵³ However, Wyoming accepts only Medicaid and Medicare ID cards in lieu of photo ID;⁵⁴ accordingly, because many voters do not have either Medicare or Medicaid plans, some consider Wyoming a strict photo ID state.⁵⁵

3. Nonstrict Photo ID

In nonstrict photo ID states, at least some voters without an acceptable form of ID may cast a ballot on or before Election Day without needing to take further action after Election Day.⁵⁶ For instance, although photo ID is technically required in these states, a voter may be allowed to sign an affidavit of identity on the spot, or a poll worker may vouch for the voter’s identity.⁵⁷ Troublingly, in the latter scenario, the voter’s ability to cast their ballot is at the discretion of the poll worker(s).

Currently, eleven states are nonstrict photo ID states.⁵⁸ Notably, Alabama is considered to be in this group, but the state’s requirements are so stringent that some view them as strict.⁵⁹

4. Nonstrict Nonphoto ID

Nonstrict nonphoto ID states function similarly to nonstrict photo ID states, with the difference being that the requested form of ID need not contain a photo of the voter.⁶⁰ As in nonstrict photo ID states, some voters without acceptable ID may cast a ballot without further action after Election Day.⁶¹ Currently, thirteen states are nonstrict nonphoto ID states.⁶²

B. Trans Voters’ Obstacles to Obtaining Correct Identification Documents

While having an identification document that conforms with one’s gender identity is not officially a prerequisite to voting, it may be in practice.⁶³ Election officials and poll workers exercise broad discretion over whether voters meet the requirements to cast a ballot.⁶⁴ If the name on a trans voter’s ID differs from that on their registration record, or the gender marker on a trans voter’s ID does not align with how the poll worker perceives them, that poll worker or another election official could decide that the voter does not meet ID requirements and deny them a ballot.⁶⁵ As a result, the voter may experience discrimination, disenfranchisement, or even violence due to their trans status at the hands of poll workers, other election officials, or nearby voters.⁶⁶

At the same time, many trans voters who want to update the name or gender marker on their ID are unable to do so.⁶⁷ The many barriers to obtaining accurate ID include the complexity and cost of the process.⁶⁸ And these barriers are impactful: of respondents to the 2015 U.S. Transgender Survey who wanted to change the name or gender marker on their driver’s license or state ID, fewer than half (44 percent) were able to change their name and fewer than one third (29 percent) were able to change their gender marker.⁶⁹ The rest of this Section provides a brief overview of the varying state processes for obtaining a name or gender marker change.

1. Name Change Process

Trans people in nearly every state must obtain a court order legalizing a name change before updating their name on official IDs, such as driver’s licenses.⁷⁰ Obtaining a court order usually entails paying filing fees, which can range from under $100 to nearly $500.⁷¹ Accordingly, the name change process can be cost prohibitive for many trans people who are more likely to report living at or near the poverty line as compared to the general population.⁷² A Williams Institute study conducted in 2021 found that about 21 percent of trans people were experiencing poverty (compared to about 12 percent of straight cisgender people).⁷³ In 2022, the Federal Reserve reported that 32 percent of adults could not afford an unexpected $400 expense without incurring credit card debt, borrowing, or selling something.⁷⁴ The study further reported that half of adults with family incomes under $25,000 were unable to pay their bills or were less than one $400 financial setback away from being unable to pay their bills.

Even those who can afford to change their legal name navigate an oftentimes complex procedural process to do so.⁷⁵ Many states require name change applicants to both obtain a court order and change their name with the Social Security Administration before they may change their name on a driver’s license.⁷⁶ Some states also require an individual to publicly post or publish their legal name change request, often in a local newspaper, prior to obtaining a court order.⁷⁷ This publication requirement poses a financial obstacle for individuals seeking a name change.⁷⁸ It also forces an individual to publicize their status as trans, putting them “at risk of potential harm, harassment, or discrimination.”⁷⁹

2. Gender Marker Change Process

Updating the gender marker on a license is a distinct process from updating the name, and it often comes with significant costs.⁸⁰ A majority of states require certification from a medical provider to change the gender marker on a driver’s license.⁸¹ Alternatively, many of those states accept proof of gender-affirming surgery, a court order, or an amended birth certificate to change the gender marker on a driver’s license.⁸² Several states require at least two of the aforementioned forms of documentation.⁸³ And all of these options come with costs attached. For instance, gender-affirming surgery can cost between $53,645 (total cost for vaginoplasty) and $133,911 (total cost for phalloplasty), and trans people often have to bear that entire cost themselves.⁸⁴ Trans individuals are more likely to be uninsured than cisgender individuals,⁸⁵ and for those who are insured, many health insurance providers exclude “services related to sex change” or “sex reassignment surgery” from coverage.⁸⁶ Policies like these, that often require trans people to pay out of pocket, make it difficult or impossible for some trans people to get accurate ID.⁸⁷

Rather than requiring gender-affirming surgery, other states mandate that the individual seeking a gender marker change undergo the “appropriate clinical treatment for gender transition.”⁸⁸ This more flexible requirement is intended to “capture a variety of clinical treatment methods” trans patients use to facilitate transition, including “changes in gender expression, psychotherapy, [and] hormone therapy.”⁸⁹ Still, some trans people do not desire surgical or medical intervention.⁹⁰ Furthermore, not all trans people who do desire gender-affirming care are able to afford or access it.⁹¹

Unsurprisingly, trans residents in states with more burdensome gender marker change requirements “are less likely to have IDs with accurate gender markers.”⁹² Even in states with less burdensome requirements, some trans people who wish to update the gender marker on their license may find that their state does not offer a marker that aligns with their identity—for instance, most states do not have a gender nonconforming option for driver’s licenses.⁹³

C. The Impact of Voter ID Requirements on Trans Voters

The 2015 U.S. Transgender Survey concluded that respondents “encountered substantial issues related to obtaining IDs and [other] records that reflect their gender identity.”⁹⁴ Ahead of the 2022 midterm elections, the Williams Institute predicted that as many as 203,700 trans voters could find it difficult to exercise their right to vote because of voter ID laws.⁹⁵ But it is hard to know how many trans voters were or continue to be affected; no studies have attempted to assess the effect of voter ID laws on the actual ability of gender minorities to cast a ballot.⁹⁶

As indicated above, cost is one of the most significant challenges for trans voters. Survey respondents identified the cost of changing identification documents as one of the main barriers to obtaining documents that reflect their preferred name and gender.⁹⁷ Out of 27,715 respondents to the 2015 U.S. Transgender Survey, more than two thirds did not have an ID that bore both the name and gender they preferred.⁹⁸ Only 11 percent reported that all of their IDs had their preferred name and gender.⁹⁹ 35 percent of respondents who had not attempted to change their legal name stated they had not done so because they could not afford it.¹⁰⁰ 32 percent who had not updated the gender marker on their ID stated the same.¹⁰¹ Accordingly, respondents with lower incomes were more likely to report that none of their IDs bore the name they preferred.¹⁰²

Another barrier is harassment. Election officials have harassed or challenged trans voters whose gender expression and/or name in their registration record does not align with their ID.¹⁰³ In the words of one respondent to the 2015 U.S. Transgender Survey,

I had to try twice to get my county to change my name in the voter registration, which is extremely embarrassing as people are essentially shouting that you’re trans in a public place. Some accused me of attempting voter fraud when all I wanted to do was try to make sure I had the best candidates who would protect my rights.¹⁰⁴

32 percent of respondents to the 2015 U.S. Transgender Survey who presented an ID that did not align with their gender presentation faced verbal harassment, refusal of service, or assault.¹⁰⁵ While this statistic is across all contexts, it illuminates the risk of voting while trans.

Even the threat of disclosure has a chilling effect on trans voters.¹⁰⁶ A trans voter may stay home due to the fear of being “targeted, outed, or challenged at the polls, which serves to further suppress the power of their communities.”¹⁰⁷ For instance, in Arroyo Gonzalez v. Rossello Nevares, three trans plaintiffs challenged Puerto Rico’s birth certificate policy, which prohibited gender marker changes and required indication of name changes with strike-out lines.¹⁰⁸ The plaintiffs sought to change the gender marker on their birth certificates without including information on the certificate itself that would disclose their trans status.¹⁰⁹ One of the plaintiffs, J.G., was a trans man.¹¹⁰ Without an accurate birth certificate, J.G. was unable to correct the gender marker on his voter ID. J.G. did not vote in the 2016 election because presenting his voter ID would have disclosed his trans status.¹¹¹

The anecdotal experiences of other trans voters suggest that J.G.’s concerns are well-founded. For instance, in 2013, a Texas voter could not afford to update his ID, so he attempted to vote with an ID containing his deadname (his name assigned at birth, with which he no longer identifies) and a photo that no longer resembled him.¹¹² Election officials interrogated him, refusing to believe the ID could be his.¹¹³ Similarly, in 2016, Henry Seaton—a trans man—tried to vote with a state ID that still had a female gender marker.¹¹⁴ The poll workers questioned Seaton about the “discrepancy between his ID and his appearance.”¹¹⁵ Seaton “had to out [himself] as transgender” to cast his vote.¹¹⁶ Everyone could see that Seaton was “flagged.”¹¹⁷ And, in 2014, a Maryland poll worker asked a trans voter to step aside when the gender marker on his ID did not reflect his gender presentation.¹¹⁸ The voter had not updated his ID because of the cost to change it.¹¹⁹ After an hour, that voter was ultimately able to vote—but the interaction left him feeling humiliated, anxious, and discriminated against.¹²⁰ He decided to vote absentee in the future.¹²¹ While absentee voting is an option for this Maryland voter, only twenty-seven states and D.C. offer “no-excuse” absentee voting.¹²² Fifteen states require individuals to articulate a state-approved excuse explaining their inability to vote in person¹²³—being trans is not on the list.¹²⁴

As outlined above, voter ID laws have an outsized impact on trans voters. The next Part outlines how these laws, as applied to trans voters, are compelled speech in violation of the First Amendment.

II. Compelled Speech Doctrine

This Part offers an overview of First Amendment compelled speech doctrine. It then explores lower court cases in which plaintiffs have argued that forced outing is unconstitutional compelled speech. Notably, the courts decided these cases on other grounds, declining to rule on the plaintiffs’ forced outing compelled speech arguments.

A. An Overview of First Amendment Compelled Speech Doctrine

The Supreme Court has held that the First Amendment protects not only the right to speak freely but also “the right to refrain from speaking at all”¹²⁵—in other words, the choice of “what to leave unsaid.”¹²⁶ The government “may not compel affirmance of a belief with which the speaker disagrees.”¹²⁷ Thus, the First Amendment “prohibits the government from telling people what they must say”—this is the very essence of compelled speech.¹²⁸

1. When Private Speech Is Compelled Speech

The Supreme Court has held that the First Amendment prohibition against compelled speech extends “equally to statements of fact the speaker would rather avoid”¹²⁹ and to statements of opinion.¹³⁰ The Court has upheld the prohibition against compelled speech in numerous contexts, holding that states may not, for example, compel students to salute the flag and recite the Pledge of Allegiance,¹³¹ compel drivers to display the state motto on their license plates,¹³² or compel website designers to create websites that convey messages with which they disagree.¹³³

First, in West Virginia State Board of Education v. Barnette in 1943, a group of Jehovah’s Witnesses challenged West Virginia’s policy of requiring public school students to salute the flag and recite the Pledge of Allegiance.¹³⁴ The Court characterized the state-mandated flag salute and pledge as “a compulsion of students to declare a belief” against the students’ religion.¹³⁵ The Court clarified that the state may not compel individuals to subscribe to the state’s belief system, whether that belief is religious in nature or not.¹³⁶ Accordingly, the Court held that compelling the flag salute and pledge was an unconstitutional invasion of the “sphere of intellect and spirit” protected by the First Amendment.¹³⁷

The Court expanded upon these principles in its 1977 decision in Wooley v. Maynard, in which two Jehovah’s Witnesses challenged New Hampshire’s requirement that noncommercial vehicle license plates bear the state motto, “Live Free or Die.”¹³⁸ The Jehovah’s Witnesses, the Maynards, considered the state motto “repugnant to their moral, religious, and political beliefs.”¹³⁹ In opposition to another New Hampshire law, they covered the motto with tape and snipped the words “or Die” off the plate.¹⁴⁰ The Court described the policy as “requir[ing] that appellees use their private property as a ‘mobile billboard’ for the State’s ideological message.”¹⁴¹ The Maynards could not avoid being compelled to act as a billboard because a car is “a virtual necessity for most Americans.”¹⁴² Therefore, the Court held, the policy contravened the First Amendment’s protection of the individual’s right “to refuse to foster . . . an idea they find morally objectionable.”¹⁴³ The Wooley dissent argued that the Maynards could affix a bumper sticker to their vehicle declaring their disagreement with the state motto, as a kind of disclaimer.¹⁴⁴ But the majority held that, because the First Amendment protects both the right to speak and the right to refrain from speaking, the state could not force the Maynards to speak at all on the matter.¹⁴⁵

Most recently, the Court reaffirmed its compelled speech doctrine in 303 Creative LLC v. Elenis.¹⁴⁶ There, a Christian website designer wanted to expand her services to create wedding websites for couples.¹⁴⁷ But she was worried, due to Colorado’s antidiscrimination public accommodations law, that the state would force her to design websites for same-sex couples, contravening her belief that marriage should only be between one man and one woman.¹⁴⁸ The website designer argued that the First Amendment protected her from being compelled to express a message with which she disagreed.¹⁴⁹ In its opinion, the Court reaffirmed that “the government may not compel a person to speak its own preferred messages.”¹⁵⁰ The Court emphasized that compelling an individual to speak when they would “prefer to remain silent” and forcing them to “include other ideas with [their] own speech that [they] would prefer not to include. . . . offends the First Amendment just the same.”¹⁵¹ Because the state sought “to force an individual to . . . defy [their] conscience about a matter of major significance,” the Court held that requiring the website designer to make websites conveying messages with which she disagreed violated the First Amendment.¹⁵²

2. The Intersection of Government Speech and Compelled Speech

The Supreme Court has also distinguished between government and private speech. The Court has held that the First Amendment “restricts government regulation of private speech; it does not regulate government speech.”¹⁵³ The government may “say what it wishes”¹⁵⁴ because “[i]t is the very business of government to favor and disfavor points of view.”¹⁵⁵ The First Amendment may, however, limit the government’s speech when the government “seeks to compel private persons to convey the government’s speech.”¹⁵⁶ In Pleasant Grove City v. Summum, the Court identified three factors to distinguish between government and private speech: (1) whether history indicates that the government has long used the speech at issue to speak to the public,¹⁵⁷ (2) whether the speech at issue is “closely identified in the public mind with the government,”¹⁵⁸ and (3) whether the government maintained control over the message in the specific instance.¹⁵⁹

In Walker v. Sons of Confederate Veterans, the Court applied this test and determined that Texas specialty license plate designs were government speech.¹⁶⁰ The case arose when the Texas Department of Motor Vehicles rejected the Sons of Confederate Veterans’ (SCV) specialty license plate design proposal featuring the Confederate flag.¹⁶¹ The Department denied SCV’s proposal because “many members of the general public [found] the design offensive,” which was “reasonable.”¹⁶² The Court found that all three Summum factors weighed in favor of the license plate designs being government speech: (1) the history of license plates indicated that they “long have communicated messages from the States,” such as slogans;¹⁶³ (2) observers associated Texas license plate designs with the state;¹⁶⁴ and (3) Texas maintained direct control over the messages expressed on its specialty plates, as it approved each design before it appeared on a plate.¹⁶⁵

As discussed above, Wooley was a somewhat similar case with a different outcome. Recall that in Wooley, the Court determined the state could not force the Maynards to use their private car as the state’s billboard.¹⁶⁶ The Walker Court acknowledged the inconsistency; it admitted that characterizing the Texas specialty license plate designs as government speech “does not mean that the designs do not also implicate the free speech rights of private persons.”¹⁶⁷ But the difference between the cases comes down, ultimately, to compelled speech. In Walker, no individual was compelled to display the Confederate flag license plate design on their vehicle.¹⁶⁸ If a driver had been compelled, though, that driver would be “convey[ing] the message[] communicated through [that] design[],” which would unwillingly associate the driver with the Confederate flag.¹⁶⁹ Ultimately, the Walker Court reaffirmed that “the First Amendment stringently limits a State’s authority to compel a private party to express a view with which the private party disagrees.”¹⁷⁰

More broadly, then, even government speech may implicate the compelled speech doctrine “if it is sufficiently associated with a private person,” as in Wooley.¹⁷¹ If a private person is forced to communicate government speech, the fact that it is government speech does not insulate it from compelled speech analysis.¹⁷²

3. Compelled Speech Doctrine and the Right to Be Free from Forced Outing

The harm is that the State of Ohio shouldn’t force me to out myself every time that I have to present a legal document and then I get the looks, the whispers, the generalized humiliation that I get after presenting [it].
—Deposition of Plaintiff in Ray v. McCloud¹⁷³

Although the Supreme Court has not directly addressed the issue, it follows from the foregoing case law that the right to be free from compelled speech extends to the right to be free from forced outing by the government.¹⁷⁴ The Supreme Court has held that one of the liberties protected by the Constitution is the right of individuals “to define and express their identity.”¹⁷⁵ And the Court has stated that messages related to “sexual orientation and gender identity . . . are sensitive political topics, and they are undoubtedly matters of profound ‘value and concern to the public.’”¹⁷⁶ Speech on such public matters “occupies the ‘highest rung of the hierarchy of First Amendment values,’ and is entitled to special protection.”¹⁷⁷ Lower courts have extended these principles to hold that expressing one’s sexuality or one’s gender identity is a form of speech.¹⁷⁸

Scholars have also expanded upon this theory, exploring the intersection of gender identity and freedom of speech.¹⁷⁹ Because the First Amendment protects the right to keep facts and opinions private, these scholars argue, it also protects the rights of members of the LGBTQ+ community to keep their status as members of the community private.¹⁸⁰ Accordingly, “[c]ompelling trans* people to identify themselves by their assigned legal gender” when it does not comport with their gender identity “is repugnant to the First Amendment.”¹⁸¹ When trans people are forced to present an ID that does not reflect their true identity, “they are compelled to affirmatively identify with a gender that is contrary to their core identity.”¹⁸² Applying the compelled speech doctrine here, the result is that trans people may not be forced to express a message regarding their own gender identity that is contrary to their sincerely held beliefs.

Advocates and scholars have applied this compelled speech theory to argue that laws restricting or prohibiting trans people from changing the name or gender marker on their identification documents contravenes the First Amendment.¹⁸³ They argue that such laws compel trans people “to embrace a gender and an identity that do not reflect their reality.”¹⁸⁴ For instance, in F.V. v. Barron, trans women challenged Idaho’s policy of including revision history when an individual changed the name or gender marker on their birth certificate.¹⁸⁵ The plaintiffs argued in part that the policy violated their First Amendment right to be free from compelled speech: when the plaintiffs presented their birth certificates, they falsely identified themselves as having been “male” at some point in the past.¹⁸⁶ In so doing, they also endorsed an “inaccurate message with which they fundamentally disagree[d].”¹⁸⁷ Ultimately, the defendants conceded that their policy violated the Equal Protection Clause and agreed to change the policy pursuant to a court order.¹⁸⁸ The court held that, because the revision history would no longer be marked on reissued birth certificates, the plaintiffs’ “compelled speech concern falls away, and the merits of this claim need not be addressed.”¹⁸⁹

In Krebs v. Graveley, a trans woman seeking to change her name challenged a Wisconsin policy that prohibited convicted sex offenders from legally changing their names.¹⁹⁰ Whenever she displayed her government ID, she was compelled to communicate information about herself and her identity that was false: her deadname and inaccurate gender identity.¹⁹¹ The court here declined to analyze the plaintiff’s claims, finding that her legal arguments were too underdeveloped—the only support she provided for her compelled speech argument was “a decade-old, student-written law review article.”¹⁹² The court noted that it should not “conduct a party’s legal research or invent arguments on a party’s behalf.”¹⁹³ The court ultimately “stresse[d] the limitations of [its] holding,” emphasizing that it was based “entirely upon the briefing presented in this case.”¹⁹⁴

In Corbitt v. Taylor, trans plaintiffs seeking to change the gender marker on their driver’s licenses challenged Alabama’s policy of prohibiting this change without evidence of gender-affirming surgery.¹⁹⁵ In part, the plaintiffs claimed that the policy infringed on their First Amendment right to be free from compelled speech.¹⁹⁶ In the plaintiffs’ view, Alabama’s policy was based on the state’s ideology that a person’s sex may only be evaluated based on the sex associated with their external genitalia at birth, unless they had undergone gender-affirming surgery.¹⁹⁷ The plaintiffs “would have to repeatedly endorse that lie, one that is repugnant to [them], . . . each and every time [they] carried [the license] with [them] or had to show it to someone.”¹⁹⁸ The policy forced trans people to repeatedly and publicly contradict their identity and their core beliefs.¹⁹⁹ Here, the court found for the plaintiffs, holding that the policy was a sex-based classification that did not pass intermediate scrutiny.²⁰⁰ It did not, however, address the plaintiffs’ compelled speech argument.²⁰¹

Courts should not shy away from addressing such cases on compelled speech grounds. And, as discussed below, the arguments these plaintiffs made may be extended to show that voter ID laws, as applied to trans voters, constitute compelled speech in violation of the First Amendment.

III. Voter ID Requirements as Compelled Speech

This Part draws upon the reasoning of Part II to advance the novel argument that, as applied to trans voters, voter ID laws constitute compelled speech under the First Amendment. It then shows how a court would apply strict scrutiny, concluding that the laws are unconstitutional as applied to trans voters. Finally, it puts forth possible reforms.

A. Why Voter ID Laws Constitute Compelled Speech as Applied to Trans Voters

Under the same logic argued in the above cases, voter ID laws constitute compelled speech as applied to trans voters. To advance a valid compelled speech claim, an individual must establish: “(1) speech; (2) to which [they] object[]; that is (3) compelled by some governmental action.”²⁰²

First, the presentation of voter ID is cognizable as speech under the First Amendment. While the First Amendment only specifically mentions “speech,” the Supreme Court has “long recognized that its protection does not end at the spoken or written word.”²⁰³ Symbolic speech or conduct is also protected if it is “sufficiently imbued with elements of communication.”²⁰⁴ Initially, the Court adhered to a symbolic speech test, which required both (1) an intent to convey a particularized message, and (2) a great likelihood that the message would be understood by viewers.²⁰⁵ But the Court revisited this test in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, stating that the “particularized message” requirement was too limited: a “narrow, succinctly articulable message is not a condition of constitutional protection.”²⁰⁶ In the wake of Hurley, circuit courts have split on the appropriate test for symbolic speech.²⁰⁷ At a minimum, the circuit courts’ differing interpretations of Hurley “require that the display be of such a character that a viewer could draw an identifiable inference from it.”²⁰⁸

Under the broader standard articulated in Hurley, presenting ID is equivalent to speech—specifically, symbolic speech protected by the First Amendment. The Supreme Court has held that the disclosure or publication of information constitutes speech.²⁰⁹ Presenting an ID is the disclosure of personal information. Whether or not the presenter of the ID intends to convey a particularized message, “the display [is] of such a character that a viewer could draw an identifiable inference from it”²¹⁰—in this case, the presenter’s gender identity and name.

Importantly, presentation of ID is private speech, not government speech—like the speech in Wooley rather than Walker. In Doe 1 v. Marshall, the Middle District of Alabama addressed this issue when it considered a challenge to the state’s requirement that convicted sex offenders possess an ID card branded with the words “CRIMINAL SEX OFFENDER.”²¹¹ The court found that the ID cards themselves were government speech, but it maintained that the Wooley compelled speech argument still applied.²¹² The district court reasoned that, while license plates are government speech, forcing drivers to display a certain message on that license plate still constitutes compelled private speech.²¹³ Thus, just as requiring a driver to display “Live Free or Die” on their license plate is compelled private speech, so too is requiring an individual to display “CRIMINAL SEX OFFENDER” on their ID card.²¹⁴ The Marshall court noted that the message on the ID cards was “readily associated” with the plaintiffs because the words are “about” them.²¹⁵ ID cards are “meant to convey substantive personal information about their holders.”²¹⁶ In the court’s words, “[t]he dirty looks that Plaintiffs get are not directed at the State.”²¹⁷

As the Alabama court noted, identification documents are also distinguishable from Walker-type license plates in a crucial way: they convey a message associated with the individual, not the state. A license plate number serves the governmental purpose of vehicle registration and identification, but it communicates no personal information about the driver to an ordinary observer.²¹⁸ In contrast, an ID card does. Although the act of printing and issuing a driver’s license may be government speech, the act of presenting a driver’s license or other ID is private speech.²¹⁹ This is consistent with Walker and Wooley. The Walker Court acknowledged that the Texas specialty license plate designs could “also implicate the free speech rights of private persons.”²²⁰ Like the website designer in 303 Creative, the information on their IDs is intertwined with their core beliefs and identities.²²¹ Accordingly, the presentation of voter ID is private speech.

The third requirement—that the speech is compelled by government action—requires consideration of the particular trans voter impacted. There are three different types of trans voters who may be affected by such requirements: (1) the trans voter who cannot obtain a qualifying ID with an accurate name and/or gender marker because of their state’s stringent requirements, (2) the trans voter who can theoretically obtain a qualifying ID with an accurate name and/or gender marker but who has not been able to do so because the process is cost prohibitive, and (3) the trans voter who possesses a qualifying ID with an accurate name and gender marker. The rest of this Section analyzes each type of voter, in turn, to show how each faces a compelled speech problem.

1. Trans Voters Unable to Obtain Accurate ID Due to the Requirements

In certain states, a trans voter may not be able to obtain an accurate ID for several reasons. First, if the individual resides in a state where they must show evidence of gender-affirming surgery to correct the gender marker on their ID, then an individual who has not had such surgery would be barred from updating the gender marker.²²² This voter would simply be unable to obtain an ID that accurately reflects their gender identity, unless they undergo an invasive and expensive surgery that many consider an unnecessary step in their transition. A voter in a state requiring other evidence of gender-affirming care (such as hormone therapy) where such care is similarly inaccessible would also be barred from obtaining an accurate ID.²²³ Additionally, many states require a person seeking a name change to publicize the request in advance of the name change court hearing.²²⁴ The publication requirement effectively publishes the individual’s trans status, putting them at risk of harm, harassment, or discrimination.²²⁵

The trans voter is then faced with an impossible choice: They can try to vote with an ID that does not comport with their gender identity or appearance, and risk discrimination, violence, and disenfranchisement.²²⁶ Alternatively, they can forego their right to vote—and suffer from de facto disenfranchisement, their participation in democracy thwarted by the voter ID requirements.²²⁷

If the voter attempts to vote with an ID that does not match their appearance, the potential resulting disclosure about their trans status is compelled speech. When the voter presents an ID that bears a gender marker not in alignment with their outward appearance, the voter is effectively forced to share their trans status with the poll worker.²²⁸ Each time the voter presents their ID—“a virtual necessity for most Americans”²²⁹—they are forced to share a message that they may wish to keep private.²³⁰ And it is no defense that the trans voter may disclaim that inaccurate information, for instance, by explaining that she is a trans woman, although her ID states otherwise. The Supreme Court rejected this very possibility in Wooley.²³¹ The First Amendment protects the right to refrain from speaking at all; that protection extends to statements of fact that the speaker wishes not to disclose.²³²

The argument that forced outing constitutes compelled speech is the strongest argument here, but another potential argument relates to the trans voter’s forced endorsement of the state’s message about gender identity. This argument is weaker,²³³ but worth mentioning, especially since it has appeared in several briefs in the aforementioned lower court cases that extended compelled speech claims to identification documents. As discussed previously, some states require an individual to undergo “appropriate clinical treatment,” such as facial or “top” surgery, before they may correct the gender marker on their ID.²³⁴ Some of those states even require an individual to undergo genital surgery (an even more expensive and invasive procedure requiring a lengthy recovery) before they may correct the gender marker on their ID.²³⁵ In those states, the government effectively communicates the message that sex is determined by one’s external genitalia and that the only way to change one’s gender identity is by undergoing gender-affirming surgery. When a trans voter who has not obtained gender-affirming surgery must present their ID, they are forced to endorse the state’s belief about gender identity, a message with which they may disagree.²³⁶ Each time they present their ID, they must communicate a message that is repugnant to them and that they know is false.²³⁷ Just as students cannot be forced to pledge allegiance to the flag, the trans voter may not be compelled to “confess by word or act their faith” in what the state views to be the truth.²³⁸ A trans voter may not be compelled to serve as a “mobile billboard” for the state’s view of gender identity.²³⁹

2. Trans Voters Unable to Obtain Accurate ID Due to the Cost

In other states with less stringent requirements for updating the gender marker or name on an ID, a trans voter may still be barred from accessing an accurate ID due to associated costs. These costs can be financial, emotional, and physical.²⁴⁰ Trans people are also more likely to be living at or near the poverty line than other members of the population.²⁴¹ Accordingly, the fees associated with changing the name or gender marker on an ID may present an insurmountable barrier and render an accurate ID inaccessible.²⁴²

Although the Supreme Court has dismissed the burdens of obtaining voter ID, it has not considered how securing an accurate ID is uniquely burdensome to trans people. For instance, in Crawford v. Marion County Election Board, the Court considered a challenge to an Indiana statute that requires photo ID for in-person voting.²⁴³ The Court acknowledged that the statute imposed various burdens on those who lacked photo ID, including traveling to the Bureau of Motor Vehicles, gathering the requisite documents, and posing for a photo.²⁴⁴ Even so, the Court concluded that those inconveniences “surely [did] not qualify as a substantial burden on the right to vote.”²⁴⁵ And, the Court added, those who experienced a “somewhat heavier burden” (such as elderly or indigent people) had ten days to verify a provisional ballot, which “mitigated” the burden.²⁴⁶ But a trans voter unable to obtain an accurate photo ID, due to the associated costs, would likely not be able to secure that ID with only ten additional days. Moreover, while the Crawford Court emphasized the incidental costs of obtaining a new ID for most voters,²⁴⁷ the costs are far from incidental for trans voters. The costs trans voters must bear—from filing a court order to obtain a legal name or gender marker change, to paying to visit a physician to obtain medical documentation of their transition, to shelling out tens of thousands of dollars for gender-affirming surgery—are astronomical compared to what the Crawford Court contemplated. The Crawford Court also suggested that, if voters had to pay a tax or fee to obtain a new photo ID, that would change the analysis.²⁴⁸ For trans people, a fee is a prerequisite to obtaining an accurate photo ID—and that fee is above and beyond what is required of cis voters.

Consequentially, the trans voter must present an ID that does not comport with their name or gender identity in order to vote. If the gender marker and the voter’s appearance do not match, the voter is compelled to reveal private information (like their gender identity or deadname).²⁴⁹ Moreover, the government has also compelled the voter to engage in speech to which they object, because the voter knows the message regarding their name or gender identity is false, but they are forced to present it as true.²⁵⁰ For the same reasons outlined above, requiring a trans voter to disclose private information about their gender identity, their deadname, or both constitutes compelled speech.²⁵¹

3. Trans Voters Who Have Updated Their ID

Finally, some trans voters are able to meet their state’s requirements for changing an ID gender marker and/or name, and they are also able to afford the cost of doing so. This scenario presents the weakest compelled speech argument of the three. But still, there are potential compelled speech issues here. First, trans voters who do have acceptable ID still may be forced to reveal their trans status. Some trans people do not easily—or may not want to—pass, meaning they are not perceived by others as the gender with which they identify.²⁵² In such a case, presenting ID may still out individuals as trans against their will, even if the gender marker and name on their ID are accurate.²⁵³

There may also be a compelled speech issue connected with the correct name listed on the ID. In some cases, the ID name may differ from the one listed in the voter registration record—for instance, if the individual updated their ID document after registering to vote. But, even in states without voter ID requirements, voters still must provide the name listed on their voter registration to cast a ballot. If the name in the voter record is the voter’s deadname, this discrepancy could also present a compelled speech problem by forcing the voter to not only express a message with which they disagree (that their deadname is their real name) but also out themselves.²⁵⁴

Even if a trans person voting with a correct ID document does not present a compelled speech issue, there are other reasons to be concerned about voter ID requirements.²⁵⁵ Although trans voters who have been able to update their IDs may not be harmed by compelled speech, they are still harmed by voter ID requirements.

B. Why Voter ID Laws as Applied to Trans Voters Do Not Pass Strict Scrutiny

Content-based laws are unconstitutional unless they pass strict scrutiny.²⁵⁶ Compelled speech laws are content-based because “[m]andating speech that a speaker would not otherwise make necessarily alters the content of the speech.”²⁵⁷ Thus, compelled speech is subject to strict scrutiny. To pass strict scrutiny, a law must both serve a compelling state interest and be narrowly tailored to that interest.²⁵⁸ Especially in the First Amendment context, this is a high bar: freedom of speech is “susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect.”²⁵⁹ While voter ID laws do serve a compelling state interest, when applied to trans voters, they result in unconstitutionally compelled speech that may be avoided with more narrowly tailored ID requirements.

1. Compelling State Interest

Courts will undoubtedly find that states have a compelling interest in requiring voters to present ID. First and foremost, states point to the interest in “deterring and detecting voter fraud.”²⁶⁰ The Supreme Court has held that “[t]here is no question about the legitimacy or importance of the State’s interest in counting only the votes of eligible voters.”²⁶¹ The Court has also reasoned that a state’s interest in “orderly administration and accurate recordkeeping” is another “sufficient justification for carefully identifying all voters participating in the election process.”²⁶²

States also identify “protecting public confidence” as an interest that justifies voter ID laws.²⁶³ The Court has recognized this interest, too, holding that “public confidence in the integrity of the electoral process has independent significance” from preventing actual voter fraud because it “encourages citizen participation in the democratic process.”²⁶⁴ The Court has also held that confidence in the integrity of elections “is essential to the functioning of our participatory democracy.”²⁶⁵

Although the Court has credited concerns about voter fraud as a compelling state interest in the past,²⁶⁶ it is worth querying just how prevalent voter fraud really is. In 2012, an investigation by the News21 journalism project revealed that, from 2000 through part of 2012, there were only “about 0.000003 alleged cases of fraud for every vote cast.”²⁶⁷ Still, given the precedent, preventing voter fraud and safeguarding elections are sufficiently compelling interests to justify voter ID laws.

2. Lack of Narrow Tailoring

While voter ID laws serve a compelling state interest, they still fail strict scrutiny if they are not narrowly tailored to that interest. Although the Court has held that voter ID laws satisfy a balancing test less rigorous than strict scrutiny, the analysis is different as applied to trans voters in the First Amendment context.²⁶⁸ As discussed above, laws that compel speech must pass strict scrutiny.²⁶⁹ The Wooley Court held that, even where the government interest is compelling, it “cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.”²⁷⁰ And, recently, the Court has been more sympathetic to First Amendment claims rather than Fourteenth Amendment claims.²⁷¹ With this context in mind, voter ID laws would fail strict scrutiny because they unnecessarily “stifle fundamental personal liberties” protected by the First Amendment.

First, voter ID laws do not use the least restrictive means to meet the end of protecting elections.²⁷² Thirteen states and D.C. do not require voter ID.²⁷³ The inference to draw here is not that these jurisdictions are uninterested in preventing voter fraud and safeguarding their elections, but rather that they rely on other, less restrictive means of doing so. In fact, “[i]t is more likely that an individual will be struck by lightning than that [they] will impersonate another voter at the polls.”²⁷⁴ The most common method of verifying a voter’s identity in those states is checking identifying information provided at the polls (like a voter’s signature) against the voter’s file.²⁷⁵ Other states check off the names of registered voters on a registration list.²⁷⁶ Still others allow voters to make a verbal or written statement of their name, registration address, and birth year in lieu of presenting ID.²⁷⁷ The very fact that many states do not have voter ID requirements illustrates that there are narrower means to achieve the same ends of verifying voter identity.

Voter ID requirements are also underinclusive. The Court has indicated that a state’s willingness to grant exceptions to its generally applicable policy may indicate that the policy is not narrowly tailored to that interest.²⁷⁸ Many states with voter ID requirements grant exceptions for certain groups, such as individuals with religious objections to being photographed,²⁷⁹ indigent individuals,²⁸⁰ or individuals with a reasonable impediment to getting an ID.²⁸¹ Some states like Texas allow exempted voters to apply for a free, election-specific ID as a substitute for voter ID.²⁸² In such states, some trans voters would fall under this exemption because of their indigent status. But other trans voters who are not indigent may still not be able to afford gender-affirming care or another prerequisite to getting an accurate voter ID. Thus, they would still be impacted by voter ID requirements. In some ways, these exemptions appear to not only undermine the state’s argument that the voter ID policy is narrowly tailored, but they also might undermine the notion that the state has a compelling interest in requiring voter ID to begin with. In my view, the other arguments for a lack of narrow tailoring are doctrinally stronger—the willingness of the government to grant exceptions to a law should not doom it.²⁸³ However, given that the Court has looked favorably upon this theory, it is still worth mentioning.

While the Court has found that granting exceptions is problematic, so is the refusal to grant exceptions or accept other forms of ID. Strict photo ID requirements where voters are not able to present alternate forms of ID do not even seem to be targeted at voter fraud or election integrity.²⁸⁴ Photo ID is far from the only means of verifying identity. Other voter ID states accept various forms of ID in lieu of photo ID. For instance, many nonphoto ID states permit voters to show a document that bears the voter’s current address, like a utility bill, bank statement, or government check.²⁸⁵ Still other states accept Social Security cards as a form of valid nonphoto ID.²⁸⁶ All but five states accept student ID cards as a form of valid ID.²⁸⁷ States are thus able to achieve their ends of verifying voter identity through less stringent ID requirements.

Voter ID requirements, then, are not narrowly tailored to the asserted state interest. Thus, they would not pass strict scrutiny.

C. Prayers for Relief

So, if plaintiffs are successful, where does this leave us? Of course, the best solution would be to abandon voter ID laws altogether, as research indicates that the issue they allegedly combat (voter fraud) is virtually nonexistent.²⁸⁸ As outlined above, thirteen states and D.C. hold their elections without requiring voter ID.²⁸⁹ Those jurisdictions use alternative methods of verifying voter identity, such as checking the voter’s information against the registration record or a verbal attestation.²⁹⁰ Using those alternative methods would not present a compelled speech problem for trans voters and would still address the state interest in safeguarding elections. But abolishing voter ID laws on a national scale is likely a political impossibility.²⁹¹

Instead, states should expand the types of documents that voters may use to confirm their identities. States requiring photo ID should relax their restrictions, using nonstrict states’ policies as a model. As discussed above, many nonphoto ID states allow voters to present as ID a variety of documents that contain the individual’s address.²⁹² Those types of documents do not disclose an individual’s gender marker and need not disclose their deadname, so they do not present a compelled speech issue. And these identity verification measures would still enable states to protect against voter fraud, to the extent that it even is an issue.

Finally, states should also simplify the process for updating identification documents, making it more accessible to trans people (and other populations, too). Ideally, one standardized process across the United States would eliminate any confusion among varying state processes.²⁹³ States should also waive the costs associated with updating the name and gender marker on ID documents for trans applicants so that the process is not cost prohibitive. And individuals should not have to adhere to unreasonable requirements to secure an ID that accurately reflects their gender identity. States not only should loosen their ID requirements to better enable their citizens to vote, but they must do so to avoid violating the First Amendment.

Conclusion

Of course, expanding accepted types of voter ID—or even eliminating voter ID requirements—is not a panacea for every ID problem involving trans people.²⁹⁴ But we should not let the perfect be the enemy of the good. The right to vote is a gateway to securing all other rights.²⁹⁵ Relaxing or repealing voter ID laws will better enable trans voters to make their voices heard in our democracy.

* J.D. Candidate, May 2024, University of Michigan Law School. Thank you to Professor Maureen Carroll for her invaluable feedback, guidance, and encouragement throughout the writing process, and to Professors Don Herzog and Ellen Katz for their perceptive comments. Thanks also to the Michigan Law Review Volume 122 Notes Editors—in particular Katie M. Osborn and Jordan Schuler—for their thoughtful feedback and edits. Finally, thank you to my family and to Denis for their love and support. All errors are my own.