The Real ID Act: A Catastrophe in the Making

© 2012 by Dallas Denny

I felt compelled to write this essay because of the effect of the Real ID Act upon a friend. She has had a driver's license here in Georgia since the 1970s. When she went to the DMV last week she was turned away because she could not produce a birth certificate. Unless she can locate a copy and copies of two divorce decrees she no longer has to show changes to her name, she will most likely lose the right to drive a motor vehicle.

Millions of Americans don't have birth certificates -- some because they were not in general use when they were born; some because they were born in rural locations without registration; some because the hospitals or courthouses that held their records burned or were swept away in floods; and some because they just haven't kept up with them.

Except when applying for a passport the driver's licenses of the 50 states have served as the primary means of identification in our society. The Real ID act changes that. It retroactively turns native-born American citizens into enemy aliens until and unless they can produce the array of documents necessary to establish their validity in the eyes of the government of the United States. Those who cannot get certified will not be able to drive, enter Federal buildings, or fly as airline passengers.

The Obama Administration opposes the Real ID act. So do I. And I hope you do, too.

The Real ID Act

A Catastrophe in the Making

In 2005, after minimal debate, the U.S. Congress passed and President George W. Bush signed into law the Real ID Act of 2005. This law changes Federal law in regard to state driver’s license and identification cards, requiring the various states to comply with rigorous new standards. Those wishing to drive or carry a state-issued identification card will be required to produce a birth certificate, proof of citizenship or resident alien status, social security number, address, and an ID that includes full legal name and birth date. Every driver in the United States -- all 250 million of us -- will be required to make an in-person visit to their state’s Department of Motor Vehicles.


The purported purpose of this draconian act is to protect national security and reduce identity theft by turning state-issued driver’s licenses and ID cards into what will be in effect a national identification card.

You can get the history and full text of the act here.

The states were required to be in compliance by 11 May, 2008, but all 50 (according to Wikipedia or about half according to CNN) passed resolutions or legislation refusing to comply with the new Federal requirements. Because of this revolt by the states and a report by the National Governors Association and the American Association of Motor Vehicle Administrators showing the cost of implementation would cost the states more than $11 billion and negatively impact their ability to provide services, the deadline for implementation of Real ID was changed to 15 March, 2011 and the U.S. government offered the states $80 million to fund the expensive procedural changes necessary for compliance. On March 4, 2011, DHS Secretary Janet Napolitano extended the deadline to 15 January, 2013. By 2017 all Americans must have Real ID-compliant identification to board a plane or enter Federal property.

To date, some states, like California, have not yet decided whether to comply with Real ID. Others, like my own state of Georgia, are already in compliance.

As the states comply, holders of driver’s licenses and state-issued ID cards will be required to go with their various proofs of identification to their DMVs when renewing their licenses, or even when expiration dates are years away.

What Does Implementation Mean?

For the various states, implementation of Real ID will result in huge costs for expansion and reworking of computer systems (including participation in the national database), redesign of licenses and ID cards, hiring of new personnel, extension of hours of operation at their licensing stations, and, in states which like Georgia, have drastically reduced their number of licensing offices, opening new offices.

Individuals can expect increased fees, an increased number of visits to their DMVs,  long waits when they do visit and bureaucratic nightmares for the many who don’t have or aren’t in possession of their birth certificates or marriage documents. Those unable to produce the vaguely-specified required documents will find themselves unable to drive unless they’re lucky enough to live in one of the states that opt for two tiers of licenses (Real ID and non-Real ID).

Those who find themselves without a Real ID driver’s license or identification card will not be allowed to board commercial airplanes, enter Federal courthouses or office buildings, acquire a passport -- or perhaps vote.

Moreover, those without Real ID will find themselves under increased suspicion by the police and other authorities and increasingly locked out of places they had always been able to go -- even our national parks!

Privacy Concerns and Identity Theft

Real ID will result in a huge loss of privacy for Americans.

Although individual states’ driver’s licenses may continue to exhibit cosmetic differences, under Real ID they would contain a standardized set of information collected by all 50 states, in standard format, encoded on a standardized “machine-readable” zone. And although individual states would still maintain their own databases, by requiring them to be interlinked, Real ID would bring into being what is, for all practical purposes, a single distributed database. In short, underneath each state’s pretty designs they are really a single standardized national card. Local DMV offices may continue to appear to be state offices, but under Real ID they would become agents acting on behalf of the Federal government, charged with administering what amounts to an internal passport without which no one will be able to function in America.

-- Real Nightmare

Although a supposed purpose of the act was to reduce identity theft, Real ID will merely compound the problem by increasing the presumption that the identity thief is legitimate and by increasing the motivation for crooks:

 A lot of what makes it so difficult for victims is that they run up against a presumption that the unauthorized transactions completed in their name are legitimate. Banks, merchants, and other creditors assume the purchases that were made and the loans given to the thief were made by the victim -- and the victim is forced to prove otherwise

Real ID may just strengthen that presumption. If someone succeeds in getting a counterfeit Real ID under your name, you’ll have to confront a perception that Real IDs are more secure and difficult to obtain fraudulently.

Unfortunately, we all know that these IDs will be counterfeited within hours of release -- and if they are perceived as super-reliable, they will be all the more valuable and attractive as a target for crooks. Crooks have always proven to be very clever and able to make IDs look realistic, and we have no reason to doubt this will be any different. They will figure it out very quickly -- or simply bribe a DMV official somewhere in the country to provide a genuine (but fraudulent) card. A number of cases of bribery at DMVs have come to light in recent years. And merchants and government clerks simply are not experts in determining whether an ID they’re looking at is the real thing.

-- Beth Givens, Privacy Rights Clearinghouse, 2007

Special Problems for Transgendered and Transsexual People

Real ID will cause special problems for transgendered and transsexual people. It will reveal their personal medical history to anyone who accesses the national database, in effect outing them. Transsexuals born in the two states that do not allow modification of birth certificates -- Tennessee and Ohio -- will be at special risk. Can you imagine a post-operative transsexual woman who has had a female driver’s license for twenty years having no choice but to bring an Ohio birth certificate identifying her as male to the DMV? The document would be scanned and entered into the database, forever identifying her as male. If other documents identity her as female, her transsexual status will be apparent to anyone who accesses the database and sees both male and female identifiers.

The requirements also force states to make electronic copies of all documents used to support a license or state ID application. It is likely that states will also make copies of documents used to change the name and/or gender marker on a license. These electronic copies will then be available in a national database to an undefined group of people. State, and local law enforcement officials (as well as federal officials...) will have access to these records.

-- NCTE, The Real ID Act: Bad Law for Our Community

Over the past decades there’s been considerable progress in the various states in regard to changes in driver’s licenses and ID cards for transpeople. Here in Georgia, for example, post-operative transsexuals can have their sex designation changed, and crossdressers with male driver’s licenses can obtain state ID cards with photos of them dressed en femme. NCTE posits a reversal of such policies under Real ID.

It will be a scary time indeed when a routine traffic stop will result in an outing. And if Equifax and other credit reporting companies gain access to the database -- and I predict they will -- even a routine credit check will out the applicant. And as we know, such outings carry with them very real dangers of harassment, assault, rape, and murder.

Problems with Immigration

While a claim of homosexuality is now an accepted means of establishing membership in a particular social group for asylum purposes, the BIA and the courts of appeals have yet to recognize a claim of transgender or transsexual identity in a similar way.

-- In re Toboso-Alfonso, 1990

The first granting of asylum on the basis of sexual identity in the U.S. occurred in 1994. Since then the number of cases has slowly increased, but there have been difficulties with implementation. Things are murkier when it comes to transpeople; however, some people have successfully obtained asylum. Things have been looking up since October, 2011, when the European Union extended their asylum standards to transgendered people, but transgendered people are still commonly misidentified as gay and are often abused. For instance, while under custody at the Eloy Detention Center in Arizona, Tanya Guzman-Martinez was sexually assaulted by a guard who threatened to deport her back to Mexico if she resisted. The guard was charged with attempted unlawful sexual contact, but received a sentence of only two days. After the assault Guzman-Martinez was placed back in a male population and was abused and again sexually assaulted.

Into this turmoil the Real ID Act is thrown.

However, following in the wake of negative actions taken by Congress in the mid-90s, the Real ID Act further narrows who can qualify for asylum. The Act gives asylum officers broad discretion in requesting that “the applicant should provide evidence which corroborates otherwise credible testimony.” In other words, the asylum seeker may be required to seek proof of persecution from those in their home country who have been their persecutors. In the past, such evidence was not necessary so long as the applicant was deemed credible by the asylum officer.

 For transgender asylum applicants, this discretion could be particularly harmful. Most asylum officers do not receive training about transgender issues and therefore are ill-equipped in evaluating a transgender applicant’s claim. Asylum officers have been known to ask transgender applicants irrelevant questions about their sex lives or their “coming out” experience (a concept that does not exist in all cultures or countries). The applicant oftentimes has a hard time answering these questions due to their irrelevance or inapplicability. In a post-Real ID Act world, these offices will be more likely to request corroborating evidence when the answers they get to these questions are not sufficient.

At the same time that officers are exercising this discretion, courts will have less power to review incorrect decisions. The Real ID Act limits the ability of a judge to determine credibility for themselves unless the judge determines that an applicant’s testimony is so strong that “a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable.” This standard is one that few, if any, applicants will be able to meet through testimony alone.

-- NCTE, The Real ID Act: Bad Law for Our Community

Repeal

If you type Real ID into the Google search engine you’ll immediately see the level of concern about the act. People are working to get this bad law repealed -- and you can help!

First, visit the ACLU’s Real Nightmare page here and ask your senators to oppose the PASS ID (S. 1261), Senator Akaha’s “Real ID-Lite.” This is a bill that attempts to fix an unworkable act, but actually makes things worse.

Next, visit this ACLU page and ask your representative to support H.R.3741, a true repeal of Real ID.

Works Cited

Federal ID Plan Raises Privacy Concerns. (2007, 16 August). CNN Politics.

Givens, Beth. (2007, 28 February). Real ID Act will Increase Exposure to ID Theft. Privacy Rights Clearinghouse.

Historic vote Extends EU Asylum Standards to Transgender People. (2011, 27 October). The European Parliament’s Intergroup on LGBT Rights.

In re Toboso-Alfonso, 20 I. & N. Dec. 819 (B.I.A. 1990). Cited in Ellen A. Jenkins. (2010-10-7). Taking the square peg out of the round hole: Addressing the misclassification of transgendered asylum seekers. Golden Gate University Law Review, 40(1),  Article 4, p.75.

NCTE. (n.d.). The Real ID Act: Bad Law for Our Community.

Paul Canning. (2011, 12 December). Appalling Treatment of Transgender Asylum Seeker Draws Lawsuit. care2.

Real ID Act. Wikipedia.

Real Nightmare.

Sridharan, Swetha. (2008, October). The Difficulties of U.S. Asylum Claims Based on Sexual Orientation. Migration Information Source.

The History of Federal Requirements for State Issued Driver’s Licenses and Identification Cards. National Conference of State Legislatures.

Tonei.Glavinic. (2012). With Real ID, Privacy Concerns for the Transgender Community.