REAL ID Concerns

REAL ID CONCERNS

The REAL ID Act is a federal law enacted in 2005. It mandates security, authentication, and issuance procedures standards for state driver licenses and ID cards, which must be followed in order for the ID’s to be considered valid for “official purposes.” The Secretary of Homeland Security defines “official purposes” as presenting state driver licenses and identification cards for boarding commercially operated airline flights and entering federal buildings and nuclear power plants. The REAL ID Act has created potential problems for asylum seekers and transgender people trying to legitimately acquire or change identification.1

Asylum

Asylum officers are now given broad discretion in requesting that "the applicant should provide evidence which corroborates otherwise credible testimony,”2 including proof of persecution and additional proof of identification from those in their home country. This kind of proof can be very difficult to obtain. REAL ID gives asylum officers the right to reject asylum based on material inconsistencies. In many cases, inconsistencies in documents, such as different first names or gender references may simply reflect the applicant's efforts to navigate different systems as a transgender person. However, asylum officers may nonetheless flag these inconsistencies. Inconsistencies like these are very common, since people seeking asylum can be fearful and distrust officials, or lack understanding of the system and cultural codes of conduct. Furthermore, the REAL ID system gives immigration judges the power to reject an asylum applicant's case based on their demeanor3, such as appearing uncomfortable or laughing nervously, which are things people might inadvertently do while recounting serious or traumatic details.

State Identification Documents

REAL ID requires the states to adopt stricter laws regarding the issuance of state ID cards. This could make it more difficult for transgender people to obtain legitimate identification, especially if the state in which they were born does not re-issue birth certificates (such as Ohio, Tennessee, and Idaho).4 These requirements force states to make electronic copies of all documents used to support a license or state ID application, and so the state 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, which gives rise to privacy concerns.


  1. Information in this section is obtained from The Real ID Act: Bad Law for our Community, National Center for Transgender Equality & Transgender Law Center, http://www.realnightmare.org/images/File/NCTE%20realid.pdf, Last visited May 28, 2014. 

  2. 8 U.S.C.S. § 1158(b)(1)(B)(ii). 

  3. “Real ID Act of 2005” (PL 109-13, May 11, 2005) Text from: Public Law 109-13, 109th Congress, 119 Stat. 303. Available From: U.S. Gov. Printing Office, http://www.gpo.gov/fdsys/pkg/PLAW-109publ13/pdf/PLAW-109publ13.pdf, Last visited May 28, 2014. 

  4. Birth Certificate Laws, Movement Advancement Project, http://www.lgbtmap.org/equality-maps/birth_certificate_laws Last visited May 28, 2014.