Around the country, state legislatures are embracing the creation of a nightmarish new electronic national identification system that has the potential to track everybody — online and off. This system is being created in the form of digital driver’s licenses. At first blush, these can seem harmless. Digital driver’s licenses are just what they sound like: A digital version of your state-issued driver license, permit or non-driver ID, carried in an app on your smartphone.

Many people — including state legislators — seem to think that since a lot of people are already putting their credit cards in their digital wallets, why can’t we let them put their driver’s licenses in too?

But as the ACLU has been pointing out for several years, it’s not so simple. Identity documents are entirely different from credit cards and other private authentication devices. IDs are government-created documents that are required for many official purposes. If you don’t like your driver’s license, you can’t get rid of it and go to a competitor. And a digital driver’s license that lacks sufficient privacy protections has the potential to worsen inequality by further blocking low-income and other marginalized groups from full participation in society. It could also lead to an explosion of demands to identify ourselves and allow everyone to be tracked through their ID, not only in the stores and offices they visit, but in their online activities.

At the ACLU, we are tempted to say hell no, no digital ID ever. But several things give us pause. First, there is clearly a strong societal demand for digital and remote transactions, and a corresponding need to identify people electronically, sometimes for legitimate purposes. If you want to do business with the IRS online, for example, you want to be really sure that nobody else can pose as you. That strong demand may mean that the arrival of digital IDs in some form is inevitable.

Second, in response to this demand, companies and government agencies are resorting to harmful, makeshift services that use face recognition and are run by opaque, and sometimes deceitful, private companies that have a profit motive to abuse information. To confirm identity, companies and agencies are also turning to data broker companies that compile information about individuals without their knowledge or consent — and in so doing, funnel money to that unethical industry.

Third, it is entirely possible, using well-established and easily available cryptographic technologies to prove our identities — or attributes such as our age, residency, or other characteristics — when reasonably necessary without resorting to digital IDs that run the risk of allowing us to be tracked. A national standard for digital driver’s licenses or other digital IDs that made use of available privacy-protecting technologies would go a long way towards making an American digital ID system palatable from a civil liberties and civil rights perspective.

Right now, we’re concerned that a number of state legislatures and government agencies are rushing towards adopting digital driver’s licenses that do not require a minimum standard of privacy-protecting design. They are being pushed to adopt these licenses by powerful national entities, such as the Transportation Security Administration (TSA) and the DC-based American Association of Motor Vehicle Administrators (AAMVA). This creates the very real prospect that we’ll get locked into a digital identity system, potentially for decades, that is a huge threat just because nobody bothered to include privacy protections in the system.

What would those privacy-protecting technologies look like? In a legislative guidance document published this month, the ACLU outlines the minimum necessary features that any state digital driver’s license or other digital ID should include to ensure that going digital does not mean forgoing needed privacy measures.

These privacy-protecting design features are not enough, however. Even with such measures in place we are likely to see the availability of a digital ID system spark an avalanche of new identity demands, especially online, where tech companies love to know who you are and what you’re doing at all times for advertising and other purposes. Legislative steps are also necessary to minimize the exclusionary effect that digitizing identity is likely to have for those without the ability to fully enter the digital world. Right now, one in ten Americans doesn’t own a smartphone, including 16 percent of Black people and a quarter of people 65 or older. Affordable internet connectivity can also be a problem; 24 million Americans lack access to fast internet service.

In our legislative guidance, we explain 12 features that we believe are an absolute minimum requirement to ensure that any digital ID system is privacy-protective and as equitable as possible. They include, for example:

• Don’t let the ID issuers track their usage. When you show your plastic license to a clerk, nobody besides you and the clerk has a record of that transaction. But one standard for digital driver’s licenses –developed by a secret international committee and being pushed by the TSA and AAMVA–allows for Departments of Motor Vehicles (DMV) or other issuers of digital IDs to get data every time we use our digital license. State legislatures should prohibit such capabilities.
• User control over the release of data. If you have to prove that you’re over 21, you shouldn’t have to share your age, date of birth, name, or any other data. That privacy-preserving capability is possible with digital IDs, and state legislatures should require that IDs allow holders to share the minimum data necessary for a transaction.
• Don’t let ID verifiers track ID holders. Digital IDs must not be allowed to serve as “super cookies” — unique identifiers that allow us to be tracked across the stores, offices, and web sites that we visit. Available options to protect privacy against such tracking include single-use credentials, in which the DMV or other issuer provides a digital “stack” of unique IDs, each of which is used with a different verifier, or cryptographical techniques such as anonymous credentials. State legislatures should require IDs be designed to make tracking impossible.
• Preserving the right not to use a digital ID. People may have legitimate reasons for not wanting to use a digital ID. Many people do not possess smartphones, have access to reliable internet access, or have the technological savvy to participate in a digital identity system. Legislatures should bar those engaged in commerce or other regulated activities from refusing to accept physical IDs on an equal basis.
• Restrictions on ID demands. Once it becomes easy to share your ID with the press of a button, the danger is that we start getting identity demands from all quarters. Want to enter a 7-Eleven? Scan your ID. Want to browse a clothing store, buy a cup of coffee, park your car? Scan your ID. Want to watch a video, or log on to social media, or look at a news site? “Click here to send us your digital ID.” Legislatures should limit ID demands to only those that are reasonable and necessary for the transaction, such as in the purchase of age-restricted items.

These and the rest of the recommended provisions are explained in our guidance document, along with our recommended legislative language for implementing each one.

Asking someone for identity is sometimes necessary, but it’s also an act of power. The design of a digital identity system is not just a technical matter, but also a structure of power. Americans and their elected representatives and government officials at the state and federal level should pay close attention to that structure. In states moving forward with digital driver’s licenses, the measures we call for are the absolute minimum of what should be included in a privacy- and equity-protective digital identity system.

In the Spring of 1999, young people across the country began to prepare for that singular teenage right of passage: Prom. For Diamond Stylz, this time included not just finding the right dress and corsage, but fighting for her right to attend prom at all. School administrators had told the then 17-year-old Stylz just two days before prom that she could not attend the event wearing a dress, despite living as a woman for years.

“At that time,” Stylz reflects, her teachers were “really adamant about teaching me to be a boy” in deference to the cultural sensationalism that trans individuals were somehow wrong.

Stylz knew she wasn’t wrong — the school was. She made the decision to fight this attempt to discriminate against her right to be who she is. With the American Civil Liberties Union of Indiana, Stylz successfully sued her school, arguing that their actions violated her First Amendment rights.

“There was so much empowerment [in the decision to fight back],” Stylz explains. But also a lot of shame that Stylz says she “didn’t need to own” at just 17. After working through her shame, and anger, today she’s allowed her experience to inform her work as a trans rights advocate.

Stories like Stylz’ still resonate nearly three decades later because the right for trans individuals to live authentically is still under attack. Right now, politicians across the country have proposed — and in some states passed — anti-trans laws that attempt to restrict access to gender-affirming care, deny people their right to self expression, bar young people from playing sports and much more. These powerful politicians use their public platforms to spread anti-trans rhetoric that is discriminatory, often false and, most alarmingly, that endangers trans lives.

As the alleged “war on woke” attempts to manipulate trans rights into flashpoints in the larger political discourse, the truth remains unchanged: Attacks on trans rights is an attack on people — their lives, their rights and their freedom to be. These partisan attempts to police bodies so they might adhere to one person’s belief system is not just wrong, it's unlawful.

The ACLU and our partners have spent more than 100 years defending our First Amendment right to live authentically and our 14th Amendment right to be free from unconstitutional discrimination. Our work has not changed despite new attacks based on decade’s old prejudice. But this fight isn’t won just in the courthouse or Congress, it’s won — and led — by the trans community.

Trans individuals, like Stylz, who risk their health to take a stand for their rights have won freedoms for their community for more than 40 years. Most notably, Marsha P. Johnson, the Black trans woman and activist who led the Stonewall uprising in New York City in 1969, helped to establish a nationwide movement for trans rights that fought police brutality. In particular, trans women of color, like Stylz and Johnson, or Imara Jones or Sylvia Riviera, face an outsized risk in their efforts to live authentically, battling both gender and racial discrimination, while fighting for their rights.

In addition to race, age can also exacerbate anti-trans discrimination. New research from the ACLU has found that trans and nonbinary teens report devastating interruptions in medically-necessary health care when politicians attempt to ban gender-affirming care. Groups like the Trans Youth Emergency Project, part of the Campaign for Southern Equality, work to help young people access the resources they need to live authentically no matter what laws exist in their state. For some, this could mean acquiring a chest binder to help heal gender dysphoria. For others, the Project helps young people living in states that have banned or restricted gender-affirming care to travel to find a provider or healthcare center that can support them.

The Trans Youth Emergency Project is but one way that the trans community has built its own safety net. While for Lizette and Jose Trujillo, whose son Daniel is trans, building safety within their own home has been vital to Daniel’s ability to thrive. The family lives in Arizona, which has advanced a series of anti-LGBTQ bills in recent years. Lizette and Jose believe that parents should have the right to consent to and access medically necessary care for their child, including gender affirming medical care.

“It was my responsibility to do whatever I needed to do to make the world safer for Daniel,” Lizette explains. “My child should have the right to access medical care that is private, medically necessary, and improves his quality of life without government intervention.”

The Trujillo family joins trans individuals across the country who are fighting for their freedom to be. The ACLU recently spotlighted their stories as a part of our ongoing efforts to showcase how, since people existed, the right to live authentically has been both vital and vulnerable. In addition to supporting trans individuals as they tell their stories, this December the ACLU, the ACLU of Tennessee, and our legal partners will argue before the Supreme Court for the right to gender-affirming care for trans minors in Tennessee. The case, US v. Skrmetti, is the first challenge to a ban on gender-affirming care to reach the Supreme Court.

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“The well-being of countless transgender youth in this and future generations rests on this court adhering to the facts, the Constitution, and its own precedent both recent and long-standing,” explains Chase Strangio, co-director of the ACLU’s LGBTQ & HIV Project.

Strangio, who is leading the litigation, explains what has been true since Stylz’ First Amendment challenge in 1999 and since the Stonewall uprising in 1969, which is that trans individuals “will not find safety or justice in the courts alone. Our national culture still encounters trans people as a question to be answered or a problem to be solved.”

The trans experience is not defined solely by the people who seek to erase them, but by the ongoing fight for freedom and moments of true liberation. Twenty-four years after Stylz fought for the right to wear a dress to prom, Lizette and Jose watched their trans son Daniel don a suit and bowtie to attend the first trans prom, organized by trans teens for trans teens.

For Daniel and Stylz, and so many trans teens, prom is but one battle in the never ending fight for their rights. A battle we must all wage.

We must make “this world a safe place for us all and a free place for us all,” Stylz says. “Pursuing liberty and happiness is at the cornerstone of our Constitution. If you're not a part of that. You are part of the problem.”