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Nonbinary Saba Sued For Gender X NY License Now Citing Gender Recognition Act, Stays Case

By Matthew Russell Lee, Patreon
BBC - Guardian UK - Honduras - ESPN

SDNY COURTHOUSE, June 22– 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.

But then the New York State legislature on June 10 passed the Gender Recognition Act to amend NY Vehicle and Traffic Law Section 502(1). Citing that, the parties on June 22 filed to stay the action, contemplating its dismissal "shortly after the Implementation Date."

The case is Saba v. Cuomo et al., 20-cv-5859 (Liman)


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