FAQ On DHSMV Memo

Overview

The Florida Department of Highway Safety and Motor Vehicles (DHSMV) issued a memo on January 26, 2024, to rescind a longstanding policy that allowed Floridians to update their gender markers on state-issued driver’s licenses and identification cards with supporting documentation. This arbitrary and capricious agency action was not a formal rule adoption, which would have required public input and notice, and many questions remain about how this memo will be implemented and exactly how transgender and nonbinary Floridians will be impacted.

At the same time, House Bill 1639, was pending in the Florida state legislature, and sought to prevent transgender Floridians from updating their driver’s licenses and identification cards to affirm their gender identities, and would instead require these state-issued identity documents to list sex assigned at birth. Fortunately, the legislative session has ended for the year, and following overwhelming opposition, House Bill 1639 did not pass.

The agency memo and the legislation are two different issues happening simultaneously, but they both focused on the state conflating sex and gender in an effort to further disenfranchise and discriminate against transgender Floridians. Everyone deserves the opportunity to go about their daily lives without fear. That means we all need access to accurate legal documents, like a driver’s license, that makes participating in our communities possible–whether it’s driving to work, registering to vote, opening a new bank account, or applying for healthcare.

While this vague, ambiguous, and improperly issued DHSMV memo was implemented with zero public notice or input to create maximum chaos and stoke fear among transgender Floridians and their families, Equality Florida has developed the resources below to provide additional information about what this new memo might mean, to the best of our knowledge and interpretation. We will continue to update this webpage as we gain additional clarity. Should the resources below not answer your questions, please do not hesitate to be in touch with our team directly.

FAQs

My Florida driver’s license or state-issued identification card lists my updated affirming gender marker. Am I at risk of having my document suspended or revoked, or facing any other penalties under the DHSMV memo?

No. We do not read the new DHSMV memo–which mentions “fraud” and “misrepresentation”–to mean that anyone who has already updated their Florida driver’s license or ID card to affirm their gender identity is at risk of facing administrative or criminal penalties for continuing to use that government-issued identity document. Those who have updated their state-issued identity documents were able to obtain affirming documentation by following the legal process established by the agency and its existing policy at the time.

If my current Florida driver’s license or state-issued identification card lists my updated affirmed gender, will I be able to keep my affirming gender marker when it’s time to renew the document before it expires, in light of the DHSMV memo?

Communications from the DHSMV explicitly state that the memo’s cancellation of prior policy “pertains solely to replacement license requests.” Renewal is required before the document’s expiration date, but replacement is a separate process that occurs when there is a change in information–like name, address, or, previously, gender–or if the document is lost or stolen. Based on this statement from the DHSMV, those with updated gender markers should be able to retain their affirming gender markers upon renewal, which can be completed online in many situations.

If I haven’t yet updated my gender marker on my Florida driver’s license or state-issued identification card, will I still be able to, in light of the DHSMV memo?

Although we are awaiting additional clarification, the DHSMV memo seeks to prevent people who have not yet updated their Florida driver’s license or ID card to reflect their affirming gender marker from doing so. The memo applies to the driver’s license and ID card replacement process, which is often used to update gender markers for those who already possess a Florida-issued driver’s license or ID.

While the DHSMV memo was implemented with no notice, input, or guidance, a technical advisory issued after the memo’s release compounds its ambiguity.

The advisory states that the applicant’s gender must be taken from a “primary identification document,” including US Passports and birth certificates, both of which a person may have already amended to reflect their affirmed gender.

This suggests that those who are able to access and update a US Passport–which allows for self-selection of gender–to reflect their affirmed gender identity could use that document to establish their affirmed gender on a new (not replacement) Florida-issued driver’s license or ID.

I am new to the state and need to get my Florida driver’s license or ID for the first time. Will I be able to use my affirming license from another state to establish my affirmed gender on my Florida-issued document, in light of the DHSMV memo?

The technical advisory makes clear that gender on Florida-issued identity documents must be taken from “primary identification documents,” which includes US Passports and birth certificates. Driver’s licenses and IDs from other states are not included among the acceptable forms of “primary identification documents,” and would likely not be accepted as the only means to establish identity on Florida-issued documents. However, available information suggests that those able to access and update US Passports or birth certificates to reflect their affirmed gender identity could use that document to establish their affirmed gender on a new Florida-issued driver’s license or ID.

I have been in the process of updating my gender marker on my Florida birth certificate, but have not heard a response recently. Is the Florida Bureau of Vital Statistics still issuing updated birth certificates?

While the Florida Bureau of Vital Statistics has not published formal notice of any administrative policy changes, we have recently heard from multiple partners and impacted community members that the agency is not fulfilling requests to update gender markers on Florida birth certificates, including when a court has ordered such an update.

My particular situation has not been addressed by this FAQ, and I think I might need legal assistance to resolve my situation at the Department of Motor Vehicles or Bureau of Vital Statistics. What should I do next?

Please complete the intake form below, where your message will be reviewed and either responded to directly or referred for additional assistance to one of our trusted and expert legal partners.

Resources

• Equality Florida’s press statement on the DHSMV memo
• EQFL Emergency Town Hall on Drivers Licenses & IDs