| As Nonbinary
Saba Sued For Gender X License NY Calls It
Moot Now Case Under Advisement
By Matthew
Russell Lee, Patreon
BBC
- Guardian
UK - Honduras
- ESPN
SDNY COURTHOUSE,
April 19 – Sander Saba sued
New York Governor Andrew Cuomo
and his Department of Motor
Vehicles as a nonbinary
transgender New York resident
who wants a driver's license
that accurately reflects their
nonbinary gender identity by
using the gender marker
"X."
On November
6, 2020 U.S. District Court
for the Southern District of
New York Judge Lewis J. Liman
held a proceeding. Inner City
Press covered it.
The governmental
defendants wanted a total stay
of discovery.
Judge Liman
agreed but only partially. He
will allow Saba through
counsel to depose an official
of the DMV.
At first he said
the questions should be sent
to him in advance, then
thought the better of it.
Let the State
complain if they do not like
the questions. He declined to
delay the time to oppose until
after the deposition.
On November 11,
the DMV's Gregory Kline filed
a declaration which changes
his earlier statement based on
which the State argued the
case was moot. Kline has said
that legacy computer system
was being changed to obvious
the need for a gender
selection.
Kline
states that since October 29,
"DMV has resolved to modify
its existing system rather
than replace the existing
system in order to enable DMV
to simultaneously focus
efforts on expanding the
availability of certain remove
services that will eliminate
the need for in-person DMV
office visits... However, this
change will not negative
impact DMV's goal to allow DMV
to create a license record
without the need for an
applicant to make a binary
'male' or 'female' gender
selection." But he does not
say how.
On
December 16 the State, by its
Attorney General, moved to
dismiss Saba's complaint,
including an email offer that
it made to give a manual
license, not automated. The
State says this is a new
demand and that no live case
or controversy remains.
On April 19,
Judge Liman (after a full day
of a bench trial involving
Martin Kwok / Guo, which Inner
City Press is also covering)
held oral arguments. Inner
City Press live tweeted, here:
Judge Liman is
asking about the
declaration(s) of Gregory
Kline, Deputy Commissioner of
NYS DMV. He says change to
modernization project will not
impact "goal to create a
license record without the
need for an applicant to make
a binary male or female
selection"
Cuomo's lawyer
Andrew Amer is quoting the
above.
Judge Liman:
There's no evidence of what's
needed for that aspect of the
program, allow application
without binary gender
selection. Amer: Funds have
been allocated... And that's
entitled to deference.
Judge
Liman: And is Saba got the
manually generated license
today, how long with it last?
Amer: Five years. And this
automatic process would go
live in that time frame...
Until we modify our system,
nothing can be done.
NYS lawyer:
There's a point at which doing
manual [non-binary] licenses
is not possible. Judge Liman:
Would your positive be the
same if the DMV had a
question, Are you Christian or
non-Christian? NYS lawyer
Amer: We don't ask that.
NYS lawyer: The
license will say x-gender, but
our data base would still have
a gender. So we give the
plaintiff a letter on
letterhead, to avoid confusion
by the police officer.
Judge
Liman: The law doesn't allow
me to distinguish here
different kinds of
Constitutional violations, of
the Establishment Clauses vs
Equal Protection. So why is
this OK? NYS Lawyer: Because
the policy has changed
already. So the question is,
What is possible?
Lambda
Legal says:
Constitutional rights are not
subject to the ebb and flow of
politics. To the government,
nothing is impossible. Now the
state of Rhode Island, with 18
other states and DC, offer
non-binary drivers licenses.
Judge
Liman: NYS says I should give
deference... Lambda Legal: Not
just because they are the
government. Deference does not
mean unquestioned belief in
what they say. Ducker case,
SDNY 2019
Judge Liman
says he will not be deciding
today, he will take it under
advisement.
NYS lawyer is
closing by saying what other
states do is not relevant to
New York.
The case is Saba
v. Cuomo et al., 20-cv-5859
(Liman)
***
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