The Arkansas Legislative Council voted Friday to clear the way for the Arkansas Department of Finance and Administration's emergency rule barring Arkansans from changing their gender or selecting a gender-neutral option on their state-issued IDs to become effective Friday.
In a voice vote, the council rejected a motion by Sen. Clarke Tucker, D-Little Rock, for the council to have a separate vote on the emergency rule.
The council's Executive Subcommittee on Thursday reviewed and approved the finance department's emergency rule that repeals a policy that allowed Arkansans to opt for an "X" in lieu of a male or female designation or switch their listed gender on their driver's license or other forms of state IDs.
Going forward, the gender listed on a state ID or driver's license must match what is listed on the person's birth certificate, passport or identification document from the U.S. Department of Homeland Security.
While U.S. passports allow for a self-identified gender-neutral option, under the state's new rule, Arkansans who bring in a passport with a gender-neutral "X" on it will be asked to sign paperwork choosing to be listed as male or female for their driver's license, according to Paul Gehring, assistant commissioner of revenue at the Department of Finance.
The emergency rule that became effective Friday will be in place for 120 days, until lawmakers and state officials can settle on approving a permanent rule, a more cumbersome process that requires a public comment period.
The Arkansas Department of Finance and Administration announced the new policy Tuesday and said it would immediately begin implementing it, but asked lawmakers to approve an emergency rule to outline procedures for the department on how to handle the policy change.
"This policy is just common sense," Republican Gov. Sarah Huckabee Sanders said Tuesday. "Only women give birth, men shouldn't play women's sports, and there are only two genders. As long as I'm governor, Arkansas state government will not endorse nonsense."
Currently, there are 342 Arkansas driver's licenses and 174 state IDs that have an "X" designation listed under gender, Department of Finance and Administration spokesman Scott Hardin said this week.
There are about 2.7 million active driver's licenses and 503,294 state IDs in Arkansas, according to the department.
The change won't affect current IDs until they come up for renewal.
Mike Munns, then-assistant commissioner for operations and administration at the Department of Finance and Administration, wrote in a memo dated Dec. 3, 2010, that "Our official policy is to allow a licensee to change their gender as requested, no questions asked, no documentation required."
During the Legislative Council meeting Friday, state Department of Finance and Administration Secretary Jim Hudson said that "subsequently [to Dec. 3, 2010], and I am not sure what year this was the policy was further amended, the practice was to allow an individual to designate an X.
"We don't know when that occurred," he said
Sen. Linda Chesterfield, D-Little Rock, questioned what the emergency is for the state Department of Finance and Administration.
Hudson said "the concern about emergency is that we have a driver's license that is relied upon by law enforcement individuals in order to be able to know who they are interacting with that is accurate, and so there is a potential for a safety issue involving a law enforcement officer, but also involving the individual who they may be taking into custody to understand who they are dealing with."
Chesterfield said "so we are dealing with potentiality ... rather than reality."
Hudson said "potentiality is very real too, that if there is a threat, then we want to make sure sure that we giving law enforcement the tools they need in order to be able avoid that threat."
Chesterfield asked about how many law enforcement officers have complained about the "X" on the driver's license.
Hudson said a good number of law enforcement officers are unaware of the practice.
"We have had conversations with law enforcement officers about the existing policy, and whenever we have shared that information we have been met with alarm," he said. "They were unaware that was the case."
Chesterfield said "it seems to me that the end effect is cruelty.
"It's unnecessary and it's unworthy of us," she said in expressing her opposition to the emergency rule.
Tucker said the question for state lawmakers is whether there is an emergency or not, and there is only a emergency under state law if there is imminent peril to the public health, safety or welfare.
"It doesn't qualify as an emergency if there is a lack of clarity in the law or if you don't like the way the agency promulgated the policy in the first place, or even if you like what DF&A is doing right now," he said.
Tucker said the state has had this policy for about 14 years, and the state can't cite one example of harm that has occurred during this period.
"It's really a poor reflection of this body in my judgment when we just pass through on an emergency basis something that is on its face plainly not an emergency," he said.
House Democratic leader Tippi McCullough of Little Rock said "I know often this is mentioned as being common sense.
"It also is sometimes mentioned as nonsense, but to these folks that this matters to, it is neither one of those things," she said. "It is truly important to them as a person and to their lives."
Information for this article was contributed by Neal Earley of the Arkansas Democrat-Gazette.