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dontmeantobepoliticalbut · 2 years

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Employees at the Texas Department of Public Safety in June received a sweeping request from Republican Attorney General Ken Paxton’s office: to compile a list of individuals who had changed their gender on their Texas driver’s licenses and other department records during the past two years.

“Need total number of changes from male to female and female to male for the last 24 months, broken down by month,” the chief of the DPS driver license division emailed colleagues in the department on June 30, according to a copy of a message obtained by The Washington Post through a public records request. “We won’t need DL/ID numbers at first but may need to have them later if we are required to manually look up documents.”

After more than 16,000 such instances were identified, DPS officials determined that a manual search would be needed to determine the reason for the changes, DPS spokesperson Travis Considine told The Post in response to questions.

“A verbal request was received,” he wrote in an email. “Ultimately, our team advised the AG’s office the data requested neither exists nor could be accurately produced. Thus, no data of any kind was provided.”

Asked who in Paxton’s office had requested the records, he replied: “I cannot say.”

The behind-the-scenes effort by Paxton’s office to obtain data on how many Texans had changed their gender on their licenses came as the attorney general, Gov. Greg Abbott and other Republican leaders in the state have been publicly marshaling resources against transgender Texans.

Abbott signed a bill last year banning transgender youths from participating in school sports that align with their gender identity at K-12 public schools, and earlier this year he ordered the state to investigate the provision of gender-affirming care as potential child abuse. State lawmakers have already proposed more than a dozen anti-LGBTQ measures ahead of the next legislative session in January, including criminalizing gender-affirming care and banning minors at drag shows.

Public records obtained by The Post do not indicate why the attorney general’s office sought the driver’s license information. But advocates for transgender Texans say Paxton could use the data to further restrict their right to transition, calling it a chilling effort to secretly harness personal information to persecute already vulnerable people.

“This is another brick building toward targeting these individuals,” said Ian Pittman, an Austin attorney who represents Texas parents of transgender children investigated by the state. “They’ve already targeted children and parents. The next step would be targeting adults. And what better way than seeing what adults had had their sex changed on their driver’s licenses?”

Alexis Salkeld Garcia, 34, of Austin, a trans woman who changed the gender listed on her driver’s license from male to female a year and a half ago, said the attorney general’s office inquiry made her feel “terrified.”

“It’s very specifically targeted, and the one person I don’t want knowing about my gender status is Ken Paxton,” said Salkeld Garcia, a software engineer who worries state officials might try to switch the gender listed on her driver’s license back to male.

“I don’t want a cop pulling me over and knowing I’m trans. That is why I changed my gender marker extremely quickly” after transitioning, she said.

Paxton’s office did not respond to requests for comment.

The records obtained by The Post, which document communications among DPS employees, are titled “AG Request Sex Change Data” and “AG data request.” They indicate that Paxton’s office sought the records a month after the state Supreme Court ruled that Paxton and Abbott had overreached in their efforts to investigate families with transgender children for child abuse.

Paxton’s office bypassed the normal channels — DPS’ government relations and general counsel’s offices — and went straight to the driver license division staff in making the request, according to a state employee familiar with it, who said the staff was told that Paxton’s office wanted “numbers” and later would want “a list” of names, as well as “the number of people who had had a legal sex change.”

During the following two months, the employee said, the DPS staff searched its records for changes in the “sex” category of not only driver’s licenses but also state ID cards available from birth, learner’s permits issued to those age 15 and up, commercial licenses, state election certificates, and occupational licenses. The employee spoke on the condition of anonymity to avoid retaliation for describing internal state discussions.

DPS staff members compiled a list of 16,466 gender changes between June 1, 2020, and June 30, 2022, public records show. In the emails, DPS staff members repeatedly referred to the request as coming from the attorney general’s office as they discussed attempting to narrow the data to include only licenses that had been altered to reflect a court-ordered change in someone’s gender.

DPS staff members did spot checks on the data, examining records that included names of specific individuals, according to records and the state employee familiar with the inquiry. But it was hard to weed out driver’s licenses that had been changed in error, or multiple times, or for reasons other than gender changes.

“It will be very difficult to determine which records had a valid update without a manual review of all supporting documents,” an assistant manager in the DPS driver’s license division wrote in an email to colleagues on July 22.

On Aug. 4, the division chief emailed staff members, “We have expended enough effort on this attempt to provide data. After this run, have them package the data that they have with the high level explanations and close it out.” On Aug. 18, a senior manager emailed to say a data engineer had “provided the data request by the AG’s office (attached).”

Last month, The Post made a request to Paxton’s office for all records the attorney general’s office had directed other state offices to compile related to driver’s licenses in which the sex of the driver was changed, as well as related emails between Paxton’s office and other state agencies.

Officials indicated that no such records existed.

“Why would the Office of the Attorney General have gathered this information?” Assistant Attorney General June Harden wrote in an email to The Post, later adding, “Why do you believe this is the case?”

If it did, Harden said, any records were probably exempt from release because of either attorney-client privilege or confidentiality.

Marisol Bernal-Leon, a spokesperson for the attorney general’s office, later emailed that the office “has reviewed its files and has no information responsive to your request” for either records it had requested from DPS or emails between the attorney general’s office and DPS.

Separately, DPS provided The Post with a half-dozen documents spanning three months that referenced the request by Paxton’s office.

When The Post shared copies of the records that had been provided by DPS, Assistant Attorney General Lauren Downey noted that “none of the records provided by the Texas Department of Public Safety are communications with the Office of the Attorney General. Our response to your request was accurate.”

Downey did not reply to questions about why the DPS emails refer to the request as originating from the attorney general. Paxton’s office has yet to respond to another public records request for any records of its contact with DPS concerning driver’s license changes via means other than email, including phone calls, video meetings and in-person exchanges.

The earlier attempt by Paxton and his allies to direct state agencies to identify parents of transgender youths and investigate them for child abuse has mostly been blocked by the courts.

Last year, lawmakers in the Republican-dominated legislature failed to pass a measure that would have criminalized gender reassignment care, which major medical associations have deemed science-based medical care. Afterward, Republican state Rep. Matt Krause — chair of the state House committee on general investigating — contacted Paxton, who issued a legal opinion that gender-affirming care for minors could be considered child abuse. Days later, Abbott directed the state child welfare agency to investigate parents facilitating such care for their children, sparking several investigations within days, according to public records.

After Abbott issued the directive, agency staff members were told not to communicate in writing about it, including emails and texts, according to public records.

Some of the families sued, winning a temporary statewide injunction in Doe v. Abbott, blocking the investigations until the lawsuit reached the state Supreme Court in May. The court overturned the injunction on procedural grounds but found that Paxton’s legal opinion was not binding and that Abbott did not have the authority to direct state child welfare staff members to initiate child abuse investigations of families with transgender children.

“[N]either the Governor nor the Attorney General has statutory authority to directly control DFPS’s investigatory decisions,” the court ruled.

But Pittman, the attorney who has represented Texas parents of transgender children, noted that lawyers for the attorney general’s office later argued against what the Supreme Court had determined: that Republican leaders “had political tools but they could not direct the department in that way.” He said they appeared to be “ignoring direct Supreme Court statements.”

The American Civil Liberties Union and Lambda Legal also sued to stop the investigations on behalf of PFLAG, an LGBTQ advocacy group with more than 600 members in Texas. A county judge in Austin ruled in their favor in September, blocking the state from investigating PFLAG members. That covered most of the dozen families the state admitted to investigating but not necessarily all, said Shelly Skeen, a Dallas-based senior attorney at Lambda Legal working on the PFLAG and Doe v. Abbott cases.

Skeen called the attorney general’s inquiry into driver’s license records “a gross violation of privacy” intended to “target one group of people to fire up their base while transgender people are just trying to live their lives.”

“The constitutional issues that this raises are equal protection and due process under the 14th Amendment as well as discrimination based on sex,” Skeen said.

Some Texas judges seal or restrict access to court records of gender changes for privacy reasons, but also because transgender individuals have been harassed online and faced threats of violence, Skeen said.

“If you do not have access to identity documents that match who you are, you are outed every time you show an ID,” Skeen said, “and this is what leads to the discrimination, harassment and violence that transgender people face.”

Smith Puerto of Austin, who identifies as transgender and nonbinary, changed their Texas driver’s license from female to male about a year ago. Puerto, 34, who works in client services at a tech company, has been training with their wife of five years to foster an LGBTQ teen and figured they had a better chance applying as a male, although there were risks.

“You definitely out yourself,” by changing the documents, said Puerto, who has had surgery, takes hormones and said they often pass as male.

“In a state like Texas, you don’t always want people to know you’re different,” Puerto said, calling the attorney general’s inquiry “horrifying.”

“It’s scary to know what he would want to do with that data,” they said.

Puerto, who moved to Texas from Ohio nine years ago, said they worry Paxton and other Republican leaders who have attacked the rights of transgender children are preparing to target transgender adults like them when the Legislature reconvenes.

“It’s a constant conversation between my wife and I,” Puerto said. “Every session we hold our breath, kind of watching what horrendous bills get filed, and wonder how much longer can we stay here.”

Salkeld Garcia, who also takes hormones and had gender reassignment surgery, demonstrated against anti-trans legislation at the Capitol last year and called the prospect of what lawmakers could do next year “very nerve-racking.”

“In Austin we have a vibrant trans community, a beautiful queer community,” she said. “But it’s also scary, because it feels like you have a big fire burning all around you and you don’t know where it will spread or if it will burn you.”

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