Paxton says trans Texans can’t use court orders to change sex on driver’s licenses, birth certificates

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State agencies should not honor court orders to change the sex on someone’s driver’s license or birth certificate, according to an opinion filed by Texas Attorney General Ken Paxton Friday.

He also said state agencies should retroactively correct any changes they’ve made to driver’s licenses or birth certificates over the years based on these court orders.

As attorney general, Paxton does not have the authority to tell other state agencies what to do, but this opinion could be cited in future executive or legislative action.

For decades, state agencies have accepted certified court orders to amend a person's sex on government issued documents. The Texas Department of State Health Services accepted court orders to change someone’s sex on their birth certificate, and the Texas Department of Public Safety allowed changes to driver’s licenses if someone presented an amended birth certificate or a court record.

That came to a halt in August for DPS, at least, and the agency asked Paxton’s office for an official opinion in September.

Ian Pittman, an attorney who represents transgender Texans, said Paxton’s recent finding was not a surprise.

“He purports to order things he has no authority to do,” Pittman said. “It’s red meat for the base, but it doesn’t legally change anything.”

But if history is any guide, Paxton’s latest maneuver could cascade into real changes. In 2022, Paxton issued a similar opinion, finding that providing a child with gender-affirming care could be considered child abuse under Texas law. Abbott, citing that opinion, issued an executive order, directing the state’s child welfare agencies to investigate parents of trans children.

The Texas Supreme Court ultimately ruled that Abbott and Paxton had overstepped, but allowed the investigations to continue.

“It is well-settled that an Attorney General opinion interpreting the law cannot alter the preexisting legal obligations of state agencies or private citizens,” Justice Jimmy Blacklock, now the chief justice, wrote in the ruling.

Pittman said he and his clients are prepared for Abbott to issue an order requiring state agencies to comply with Paxton’s opinion, or for the Legislature to pass one of several bills filed this session that would further restrict trans people from changing their gender markers on government documents.

“What this shows us is what we already knew: If they have the ability, or think they do, they will try to do this,” he said. “But bureaucratic inertia may work in the favor of people this would affect.”

He said it wasn’t clear how easy it would be for DSHS or DPS to retroactively identify and change those records if they were ordered to do so, although he noted it might come up when people have to renew their driver’s licenses.

DPS and DSHS are reviewing the order and did not have further comment, spokespeople for the agencies said Friday.

In January, Abbott issued an executive order saying Texas would recognize only two sexes, male and female, and ordering all state agencies to comply with that framework.

“There are only two sexes, and that is determined not by feelings or ‘gender theory’ but by biology at conception,” Paxton said in a statement Friday on his ruling. “Radical left-wing judges do not have jurisdiction to order agencies to violate the law nor do they have the authority to overrule reality.”

Equality Texas interim CEO Brad Pritchett said in a statement that if agencies do comply, it would jeopardize the safety of nearly 100,000 trans Texans.

“The trans community in Texas is scared,” he said. “The people going through the process to update their documents are trying to honor the law by having an ID that matches the way they live and move through the world. Now law-abiding Texans are being undermined by the state’s top lawyer attacking the validity of legal court orders from state judges.”

Paxton’s opinion focuses on the fact that state agencies are not party to these court filings, but are expected to comply with the results. That’s long been the way the courts handle these sorts of administrative changes and changing that precedent could have unintended consequences, Pittman said.

As a family law attorney who handles adoptions, he said it’s standard practice to get a court order to change a child’s birth certificate to reflect the adoptive parents’ names. He’s never had to name DSHS in those filings before, but this opinion implies that may be required going forward, he said.

”I’m not sure Paxton’s office thought that through,” he said.

Disclosure: Equality Texas has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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