Saba v. Cuomo

• Decision Date: 23 April 2021
• Docket Number: 20-cv-5859 (LJL)
• Citation: 535 F.Supp.3d 282
• Parties: Sander SABA, Plaintiff, v. Andrew M. CUOMO, in his official capacity as Governor of the State of New York; and Mark J. F. Shroeder, in his official capacity as Commissioner of the New York State Department of Motor Vehicles, Defendants.
• Court: U.S. District Court — Southern District of New York

535 F.Supp.3d 282

Sander SABA, Plaintiff,

v.Andrew M. CUOMO, in his official capacity as Governor of the State of New York; and Mark J. F. Shroeder, in his official capacity as Commissioner of the New York State Department of Motor Vehicles, Defendants.

20-cv-5859 (LJL)

United States District Court, S.D. New York.

Signed April 23, 2021

Amanda Lyn Genovese, Shane Hunt, Hannah Yael Shay Chanoine, O'Melveny & Myers LLP, Omar Gonzalez-Pagan, Carl Solomon Charles, Lambda Legal Defense and Education Fund, Inc., New York, NY, Dimitri Portnoi, O'Melveny & Meyers LLP, Los Angeles, CA, for Plaintiff.

Andrew Stuart Amer, New York State Department of Law, New York, NY, for Defendants.

OPINION AND ORDER

LEWIS J. LIMAN, United States District Judge:

Defendants Andrew M. Cuomo ("Cuomo"), sued in his official capacity as Governor of the State of New York, and Mark J. F. Shroeder ("Shroeder") (together with Cuomo, "Defendants"), sued in his capacity as Commissioner of the New York State Department of Motor Vehicles, move to dismiss the complaint brought against them by Sander Saba ("Saba") pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. For the following reasons, the motion is granted in part and denied in part.

BACKGROUND

Saba is a nonbinary transgender New York resident who seeks to obtain a New York driver's license that accurately reflects their¹ nonbinary gender identity by using the gender marker "X". Dkt. No. 1 ("Compl." Or "Complaint") ¶ 1.² Saba, who was born in New York City, has a birth certificate reflecting their gender as "X", which denotes that their identity is neither exclusively female or exclusively male. Saba currently has a driver's license from the Commonwealth of Pennsylvania that reflects their nonbinary gender with an "X" gender marker. Id. ¶ 2. Because Saba is a New York resident, they are required by New York law to exchange their Pennsylvania driver's license for a New York license. Id. ¶¶ 3, 98-99; see N.Y. Veh. & Traf. L. §§ 250(2), 250(5), 509(1), 509(11) (New York residents must obtain a New York driver's license within 30 days of becoming a resident in order to lawfully drive in the state of New York). Saba claims, however, that the New York State Department of Motor Vehicles ("DMV"), which is responsible for the issuance of New York driver's licenses, does not issue driver's licenses with a gender marker other than "M" for male or "F" for female (herein after the "Gender Marker Policy"). Id. ¶¶ 4, 81. In particular, a New York resident seeking a first-time New York driver's license must complete Form MV-44, a three-page Application for Permit, Driver License, or Non-Driver ID Card (the "Application"). Id. ¶ 84. The Application requires applicants to fill out fields requesting various identification. One field requires applicants to indicate their "GENDER" by checking one of two boxes marked "Male" and "Female." Id. ¶ 85. An applicant is further required to sign the Application, which certifies that "the information [an applicant has] given on this application and on any documentation provided in support of this application is true and complete." Id. ¶ 86.³ Thus, by operation of the Gender Marker Policy, notwithstanding Plaintiff's gender identity and the nonbinary gender designation listed on their other government identification documents, they would not be able, by the ordinary application process, to obtain a New York driver's license with the gender identifier "X." See id. ¶ 107. Plaintiff also alleges the policy makes it impossible for Plaintiff to comply with New York law, as they must "either falsely attest that they are male or female in the Application ... or else must use a Pennsylvania driver's license rather than a New York driver's license." Id. ¶ 108.

On May 26, 2020, Saba sent a letter to Schroeder's office, requesting that the DMV "advise [them] on how [they] can obtain a New York driver's license with an X gender marker, or please confirm that the DMV's current policy prohibits nonbinary residents from having a New York driver's license that accurately reflects their gender identity." Id. ¶ 101. In response, on July 7, 2020, Saba received a telephone call from Brandon Flynn ("Flynn"), who identified himself as an employee of the DMV within the New York licensing Bureau tasked with responding to Saba's May 26, 2020 letter. Mr. Flynn confirmed that the DMV would deny Saba's request to issue a New York driver's license because the issuance computer system was set up to require either an "M" or an "F" gender marker on New York driver's licenses. Id. ¶¶ 102-03. Flynn stated that the DMV was in the process of updating its computer system, but could not state whether this process would result in an option for an "X" gender marker for New York issued licenses.

Plaintiff alleges the Gender Marker Policy violates their civil rights and causes them injury by predicating access to a driver's license—and the myriad benefits, privileges, and conveniences associated therewith—on misidentifying their own gender to the state and to anyone who would examine their driver's license.⁴ Plaintiff alleges:

For many nonbinary people, the gender designation on their identification documents is often inaccurate, because the sex they were assigned at birth ..., typically the binary options of male or female, does not match their gender identity, which is neither exclusively female nor exclusively male. Correcting the gender marker designation on identity documents is thus critically important for nonbinary people. Accurately identifying one's own gender to the world is essential to one's personhood and ability to navigate the world.

Id. ¶ 6; see also id. ¶¶ 11-12; 52-54 (aligning identity documents with gender identity is important for mental health, is a "crucial milestone in social gender affirmation," and is important for safety, as reflected in one survey finding that "32 percent of respondents who had presented an identification that did not match their gender presentation had a negative experience, including verbal harassment (25 percent), denial of service (16 percent), and assault (2 percent)") (citation omitted), id. ¶¶ 109-130.

"By requiring applicants to submit documentation that they are either female or male," Plaintiff alleges, "the DMV excludes nonbinary residents from driver's licenses that accurately reflect their gender identity," and "[f]or a nonbinary resident like [ ] Saba whose out-of-state license, birth certificate, and social security card all accurately reflect their nonbinary gender identity, selecting either female or male would be an inaccurate designation that is inconsistent with their identity." Id. ¶¶ 89, 91. Injury follows, inter alia, because "possessing a driver's license that fails to accurately reflect their gender increases the chance that [Plaintiff] will be subjected to prejudice, discrimination, harassment, humiliation, and violence," id. ¶ 110, and because "[t]hrough the Gender Marker Policy, the DMV has announced that it does not recognize [ ] Saba for who they are and does not acknowledge their personhood," which violates "their dignity and autonomy," id. ¶ 114. Plaintiff notes that "to the extent the Gender Marker Policy requires [ ] Saba to disclose their birth-assigned sex, it requires [ ] Saba to disclose it not only to the DMV, but to every public or private person to whom they show their driver's license." Id. ¶ 116.

Plaintiff claims the Gender Marker Policy violates their constitutional rights under the First and Fourteenth Amendments to the United States Constitution and brings suit under those Amendments and 42 U.S.C. § 1983 and under New York State Human Rights Law ("NYSHRL"), N.Y. Exec. L. § 296. Plaintiff seeks declaratory judgment, a permanent injunction enjoining enforcement of the Gender Marker Policy, and damages.

For purposes of this motion, Defendants do not challenge Plaintiff's claims on the merits. Defendants make two procedural arguments that the Complaint should be dismissed pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction: (1) Plaintiffs claims are moot because New York State has begun a process to overhaul its computer system to permit residents to apply for a driver's license with an "X" gender marker and, in the meantime, has consented to produce such a license for Plaintiff through a manual process, and (2) the Eleventh Amendment to the United States Constitution bars relief against a state official based on past conduct.

LEGAL STANDARD

"Article III, § 2, of the Constitution limits the jurisdiction of federal courts to ‘Cases’ and ‘Controversies,’ which restricts the authority of federal courts to resolving ‘the legal rights of litigants in actual controversies.’ " Genesis Healthcare Corp. v. Symczyk , 569 U.S. 66, 71, 133 S.Ct. 1523, 185 L.Ed.2d 636 (2013) (quoting Valley Forge Christian College v. Ams. United for Separation of Church and State, Inc. , 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) ) (internal quotation marks and citation omitted). In order to invoke a federal court's jurisdiction, a plaintiff "must demonstrate that he possesses a legally cognizable interest, or ‘personal stake,’ in the outcome of the action." Id. (quoting Camreta v. Greene , 563 U.S. 692, 701, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) ). "A corollary to this case-or-controversy requirement is that ‘an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.’ " Id. (quoting Arizonans for Official English v. Arizona , 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) ); accord In re Zarnel , 619 F.3d 156, 162 (2d Cir. 2010) ("Mootness is a doctrinal restriction stemming from the Article III requirement that federal courts decide only live cases or controversies; a case is moot if the parties lack a legally cognizable interest in the outcome of the case.") (internal quotation marks and citation omitted). A case is thus moot when ...