In the span of just a few years, transgender people have had their rights and lives radically reshaped by a litany of political attacks against our freedom, our dignity, and the health care many of us need to live. As part of a coordinated national effort to erode legal protections for trans people and push us out of public life, a wave of bills targeting gender-affirming health care for transgender people have effectively banned it for nearly one-third of transgender youth in the United States. These laws uproot entire families and communities, alarm doctors and medical experts, and endanger the very young people they laws claim to protect.

While the ACLU and our nationwide affiliates succeeded in the trial courts when the judges actually considered the facts, these early wins have increasingly been overturned, allowing these devastating bans to take effect. This includes the U.S. Courts of Appeals for the Sixth Circuit, where a three-judge panel overturned a lower court decision, which had blocked Tennessee’s ban. As a result of the Sixth Circuit decision, health care bans have gone into effect in Tennessee and Kentucky.

In each of these challenges, we are committed to exhausting every option we have with the goal of protecting the ability of our community to access this care for as long as possible. That’s why, today, we’ve asked the United States Supreme Court to review the lower court’s ruling and block these dangerous laws from further threatening transgender youth, destabilizing their families, and needlessly tying the hands of their medical providers.

How We’re Winning The Fight to Defend Trans Rights

In states across the country, judges are blocking bans on gender-affirming care and drag performances.

In this case, we have the honor of representing LW, a 15-year-old transgender girl, and her mother Samantha Williams. Like nearly 100,000 families with transgender kids ages 13 to 17 who now live in a state that has banned their health care, LW and her parents face the risk of either being denied the care they and their doctor know is right for their daughter or leaving the only home LW has known. Tennessee’s ban — like the nearly identical laws passed in 20 other state legislatures in the last three years — directly targets LW because she is transgender.

At the core of our argument before the court are two basic constitutional claims. First, Tennessee’s law bans treatment only when that treatment is provided to transgender youth like LW who have gender dysphoria. This targeted restriction discriminates based on both sex and the fact that a person is transgender and violates the Equal Protection Clause.

Second, Tennessee’s law interferes with the ability of parents like Samantha to make medical decisions for their minor children even though their children and doctors all agree the treatment is necessary. The law substitutes the state’s judgment for that of loving parents who are following the guidance of their children and the advice of doctors. The Supreme Court has long recognized that parents have certain fundamental rights concerning the care and custody of their minor children. While the rights of parents are importantly not absolute — and transgender youth have rights all their own — Tennessee’s law forces a one-fits-all approach to treatment that overrides the informed judgment of parents, adolescents, and doctors. Tennessee’s law forces parents like Samantha to “co-parent” with their state legislature. It is particularly pernicious when that legislative body has made it clear they have no interest in learning the truth about this medical care and young people like LW.

Asking the Supreme Court to review a lower court decision is always something we take seriously. We have witnessed this court disregard and infringe people’s bodily autonomy repeatedly, most recently with its devastating decision in Dobbs, which overturned Roe v. Wade. We take this step with full knowledge that, no matter what happens, we will have to fight for each other and use every tool in our toolbox to defend all our rights to bodily autonomy. With such critical, life-or-death health care on the line, we must continue to fight back against Tennessee’s law and exhaust every option available to us. No matter what happens, we will continue to fight thoughtfully and creatively to ensure that everyone can access the health care they need.

The last few months have been the most personally and professionally devastating of my life. My heart — and the heart of every transgender advocate fighting this fight — is heavy with the weight of the dehumanization and needless harm trans people like us are experiencing nationwide. But I also know that every out trans person has embraced the unknown in the name of living free from shame or the vice of other people’s expectations. By virtue of being a living, breathing trans person, each of us has chosen hope over despair. Regardless of any court, we will always exist in joyful defiance of efforts to limit who we are and who we can be.

A movement is underway to create a digital identity system that would allow people to carry their ID on their phones or on digital smart cards and, eventually, use them over the internet. That might sound handy at first blush, but as we discussed in this 2021 report, it would not be as simple as it might sound. It could create a world where we get asked for digital ID at every turn, and by every web site, and where our ID use is tracked; and it could have significant implications for equity if digital IDs become effectively mandatory by disadvantaging those who don’t have a smartphone.

Unfortunately, the TSA is threatening to prematurely lock in a harmful digital identity system that allows ID card issuers to track where people show their ID, fails to include a number of important privacy protections, and fails to ensure that the system is free from the control of particular private corporations. We, along with several of our allies, submitted joint comments to the agency highlighting these and other problems and urging the agency to slow down.

Identity Crisis: What Digital Driver’s Licenses Could Mean for Privacy, Equity, and Freedom

The major questions about any digital identity system are whether it will be designed to protect privacy to the maximum extent possible, and whether people will be forced to participate in it. Will it be built to give control to people, or built to spy on people and increase the control of government agencies and companies over people? Making somebody show ID is sometimes necessary, but it’s also an act of power. Who should be able to require someone else to identify themselves? What can the requestor do with that information once they have it? What recourse does the identified person have if the requestor misuses the information?

We need to be extremely careful about what kind of system we adopt, because it’s going to need to be interoperable across all the states, and potentially across the world, and therefore, once adopted, is going to be very difficult to change.

The TSA relies on identity cards only for one very narrow and specific purpose, so it might seem strange that the agency is in a position to determine the design of a new identity system, dictating the process for how people present ID in every small town and city across America — and more significantly, perhaps, online — for decades to come. Some in Congress have proposed the creation of a national expert task force to recommend a digital ID architecture, but that hasn’t happened.

New Mobile Phone Service Shows We Can Have Both Privacy and Nice Things

Despite the desires of companies to monetize our data, we must insist that privacy be built into the technologies we depend on.

The reason for the TSA’s position is the Real ID Act of 2005, in which Congress forced states to follow federal standards for the design of physical driver’s licenses that would be recognized by the federal government. (This ill-conceived legislation was drafted hastily and forced through Congress without hearings in a post-9/11 environment where opposition to even the stupidest national security measures was still demagogued as “pro-terrorist.”) In 2020, Congress modified that law by extending federal power to digital IDs, leaving it up to DHS to craft the precise rules for what kinds of digital ID would be deemed Real ID-compliant. DHS then decided to delegate that process to its sub-agency, the TSA.

In short, whatever rules the TSA comes up with for federally compliant digital IDs will force the states to comply and are likely to govern what the nation ends up with.

A lot of innovation is underway in the digital ID space. A whole community of technologists and other experts has been working on the problems of online identification and authorization for years. There’s innovation in privacy-protecting encryption with a wide variety of applications. The World Wide Web Consortium (W3C), the main standards organization for the web, is working on a standard called Verifiable Credentials, which is more decentralized and privacy-protecting than many other systems.

Another standard that has been issued is called Mobile Driver’s Licenses (mDLs). This standard was created behind closed doors by a secretive committee at the International Standards Organization (ISO) that, so far as I can tell, was made up of representatives of U.S. security agencies like DHS, tech giants, and authoritarian governments. As discussed in our 2021 report, this ISO standard is flawed. It would allow for IDs that “phone home” to the DMV (or its corporate contractor), allowing tracking of where, when, and to whom you are showing your ID, and still lacks many important components that could protect privacy. Missing components include, for example, standards governing the design of digital wallets and their privacy protections, protections for data stored on the phone, mechanisms for the ID holder to receive information about the legitimacy of the requester, and provisioning (the process states use to install an mDL in people’s wallets).

If the United States is to adopt a digital ID, it’s also vital that that ID be open and free of proprietary corporate strings. There must be no one corporation, or small handful of corporations, that Americans are de facto required to deal with in order to participate in a digital identity system. Yet the TSA appears to be working extremely closely with Apple Inc. Documents obtained by journalist Jason Mikula reveal that the TSA has entered into contracts that appear to give Apple Inc. significant power over the implementation of mDL checkpoints. For puzzling and unclear reasons, the TSA even signed over to Apple the agency’s patents governing the operation of its airport mDL checkpoints.

If it moves to embrace the ISO standard at this time, as it is proposing to do, the TSA will prematurely lock in that standard before we have a clear sense of its effectiveness or risks, and in spite of the fact that other maturing standards such as Verifiable Credentials seem far superior. Any increased use of digital driver’s licenses won’t speed people through airline security — ID checking is not the bottleneck — and it won’t free people from having to carry their physical ID cards, since, as the TSA warns, “You must still carry your physical ID.” A number of states have launched state digital driver’s license programs (also in questionable partnership with the TSA and Apple), but there has not been any popular rush to embrace them.

And there is no popular clamor for digital IDs from residents of the states. The states that have rolled out digital driver’s licenses have not had substantial public sign-on. This is being driven by vendors and other corporations, eager to define digital driver’s licenses as “the future” and conjure a non-existent public excitement about the technology. Whether or not digital IDs prove to be part of our future, there’s no reason for that future to include this particular form of digital ID.

For all its problems, the TSA doesn’t have any incentive to turn digital IDs into a privacy nightmare. It just wants to check travelers’ IDs (though doing so has a very dubious relationship to the security of aviation). I suspect that it is moving too fast out of a misguided effort to be “mission-focused” and “modern” and to “embrace the future.” But the TSA, like state departments of motor vehicles, has been thrust into an important civic role that is far broader than its mission, and it needs to act with a recognition of that responsibility. As we told the TSA in our comments, there’s no hurry here; if we must have a digital ID system, we should take the time to do it right. A rushed embrace of a poorly scoped standard could leave us locked into a world with even more corporate control, centralized surveillance, and weakened privacy than we have today.

We’ve all seen enough police procedurals to know the ordinary flow of a criminal investigation: first, law enforcement develops suspicion; then, it gets a warrant and seizes evidence, like a cellphone or computer, from a suspect; and finally, there is a trial. But sometimes in real life, instead of winding down like an hour-long episode on A&E, that final act is delayed or never happens. If a case drags on, or there is no case, can the government hold onto the digital devices in its possession and the reams of private information they contain for as long as it wants?

Surprisingly, courts have barely addressed this question, let alone answered it definitively. But last month, in a case involving Mike Lindell — that’s the “MyPillow” founder now best known for purveying unsupported skepticism about the outcome of the 2020 election — the Eighth Circuit Court of Appeals offered an answer.

The court ruled that even when the government seizes and then searches a cellphone under a lawful warrant, the Fourth Amendment bars it from holding onto the device, or all of the data stored there, indefinitely, just because it might be useful in the future. Instead, the government must offer clear reasons to justify any ongoing retention. Further, the Eighth Circuit held that the Constitution requires courts to weigh the government’s rationale for keeping seized property against the owner’s interest in having that property returned — a substantial interest, given the sheer breadth and volume of sensitive information that cellphones contain.

Police Must Not Create Digital Dossiers of Data from our Phones and Computers

Courts are starting to scrutinize free-wheeling searches of the libraries’ worth of private information stored on our electronic devices.

This is a sensible conclusion with important implications for how courts will regulate cellphone seizures and searches going forward. To ensure that respect for constitutional rights is not left up to government agents’ discretion whenever our devices are seized, courts should follow the Eighth Circuit’s lead in subjecting prolonged retentions of digital property to judicial oversight.

In Lindell’s case, in the course of investigating an alleged breach of election equipment in Mesa County, Colorado, federal agents seized his cellphone. They had a warrant permitting them to search the phone for evidence of the specific crimes under investigation. Before charges were filed, Lindell brought a civil lawsuit challenging various aspects of the government’s probe. Among other things, Lindell requested a court order mandating the return of his cellphone and all its data. The government asserted that, once property is lawfully seized, it may be retained indefinitely based on its mere assertion of an “ongoing evidentiary need.”

This argument failed before the Eighth Circuit. The court reasoned that the Fourth Amendment’s protection of individuals from unreasonable interference by government agents does not simply expire once law enforcement obtains a warrant to lawfully search private property. The court first acknowledged the Supreme Court’s recognition, in a series of strong privacy decisions over the past decade, that our digital devices “implicate privacy concerns far beyond those of other items.” It then observed that the comprehensiveness of the information stored on our cellphones, coupled with the practical realities of digital searches, which often involve initially seizing all the information on a device, means that such seizures almost always involve “an overbroad capture of information.”

As a result, when the government seizes information beyond the scope of demonstrated probable cause (and no other exception to the warrant requirement applies), Fourth Amendment rights are at stake. The government can copy the data and search it in a manner designed to safeguard confidential, private, and privileged materials. But the government must also substantiate its ongoing retention of lawful property by identifying a governmental interest that outweighs the target’s privacy and property interests in the device and the original data, or give them back.

The Eighth Circuit’s conclusion has been received by some experts as somewhat novel, but it did not come out of nowhere. In fact, it’s a logical step from positions the ACLU has advocated in other cases. In friend-of-the-court briefs, we’ve long argued, and various courts have agreed, that individuals retain Fourth Amendment protections for the information police lawfully seize pursuant to a warrant, and that overly-long data retentions can violate people’s reasonable expectation of privacy and property interest in our digital information.

In one 2015 case that ended up before the full U.S. Court of Appeals for the Second Circuit, the government seized a device in connection with one criminal investigation which fizzled out, but then held onto and searched that device years later to investigate a separate crime, without ever seeking a second warrant. We argued that the continued retention of the device violated the Fourth Amendment, in part because if it did not, every seizure of digital information would tempt police into a freewheeling general search. (The full Second Circuit avoided taking a side, ultimately ruling that the answer didn’t matter under the so-called “good-faith doctrine” — another target of ACLU ire in recent years.)

Lindell’s case shows that a person retains a Fourth Amendment interest in their property, including their data, even after an initial, lawful seizure. Even if courts limit police access to this information by cabining searches and imposing use restrictions on non-responsive data — and they should do both — there remains an independent privacy and property interest in how our records are analyzed, stored, and shared after they enter government hands.

Exactly when the government’s ability to retain and access the data becomes unreasonable under the Fourth Amendment is an open and genuinely difficult question. The constitutional command that searches and seizures be “reasonable” means that there will, of course, be gray areas. That’s nothing new. A person’s continuing interest in their phone and the libraries’ worth of personal information it stores should place a heavy thumb on the scale in their favor. And generally, the longer the government wants to hold onto a phone, the more it should have to prove to justify its continued possession. Further, only specific reasons, rather than a generalized assertion of convenience or hypothetical value in the future, should form the basis for continued retention by the government.

Especially as storage of digital information becomes ever cheaper, the prospect that the government might indefinitely retain the bounty of private data that it can gather by seizing a cellphone is alarming. The Eighth Circuit’s opinion goes a long way to preventing the government from holding on to data indefinitely, creating digital dossiers it can use at its discretion in unrelated investigations or years later.

We’ll all be able to sleep more soundly if courts begin to apply these principles, no matter what pillow we use.