After an Upstate boy who identifies as a girl was forced to remove makeup for his first driver's license photo last week, the state policy leading to the controversy might deserve a closer look, activists and authorities in the Charleston area said.
The S.C. Department of Motor Vehicles sees the issue as a clear-cut question between male and female. The law doesn't provide any gray area, and the policy is meant to ensure that drivers don't alter their appearance for their license photos, DMV spokeswoman Beth Parks said.
Law enforcement officials in the Lowcountry also stressed a need to make sure photos used to identify someone match the subjects' typical appearance.
"If he's still a male, then he needs to look like a male," Parks said. "What we want is someone's true identity."
In March, Chase Culpepper, 16, of Anderson was told at his hometown DMV office that he could not have his photo taken with makeup on. He removed it and got a license. The refusal resurfaced this week when the DMV denied Culpepper's request to retake the photo with makeup.
His plight has been taken up by the Transgender Legal Defense & Education Fund, a New York-based advocacy group that says the DMV's stance violates the "gender non-conforming" teen's free-speech rights.
To advocates, makeup was part of Culpepper's true identity, and the state based its treatment of him on cultural norms of what a boy should look like.
The state should instead be sensitive to people who identify with the opposite sex, the activists argued. Doing so would result in photos that more accurately reflect how someone looks on a given day - a concept in line with the very policy in question, they said.
The state might see further cases like Culpepper's as more South Carolinians are willing to publicly express their transgender identities, said Amy Garbati of Charleston, who sits on the board of directors for S.C. Equality. Garbati, whose organization advocates for gay, lesbian, bisexual and transgender communities, plans to discuss the policy with DMV leaders.
"It's not the DMV's responsibility to judge an individual's gender expression," she said. "If this individual is violating the policy, every woman wearing makeup who comes through the door is violating the policy."
The DMV has no plans to retake Culpepper's picture, Parks said.
But Garbati said she'll take a shot at changing leaders' minds about his case and the policy when she meets with them soon.
Working on her organization's TransAction task force, which focuses on gender variances, Garbati has lobbied the DMV on behalf of transgender people looking to have their license photos retaken because of a change in appearance or sex.
Such people are not deliberately trying to avoid detection by law officers - something the DMV policy tries to prevent. It bars a license photo taken of a person who "is purposely altering his or her appearance so that the photo would misrepresent his or her identity."
To Garbati, the DMV would violate its own policy by not taking photos of a transgender person in the makeup or clothing used on an average day.
She's often perplexed, she said, when the DMV refuses to retake a photo that more accurately represents someone.
The agency typically requires legal documentation of any gender change before the driver gets a new license.
"Apparently, a change in appearance isn't a qualifying event," she said. "It's silly because all it would mean is more revenue for (the DMV)."
Garbati tends to see such cases more often in Southeast states, including South Carolina, where governments have lagged behind others nationwide in recognizing gender preference and identity, she said.
"There are going to be more of these incidents," Garbati said. "I think you're going to hear more and more similar stories of discrimination."
'A legal issue'
Though the DMV refused to revisit Culpepper's case - his family has considered a lawsuit - Parks said the department might take a look at the policy during its next periodic review of the guidelines.
But agency officials' stance is based on state law that views gender as a black-and-white issue between male and female, Parks said.
Employees would ask someone who dresses in the Gothic style to take off any heavy makeup, Parks said. The makeup is not regarded as a disguise, she said, but something that could mask someone's true appearance.
"There's no transgender, no androgynous. Those aren't options," Parks said. "We're not telling a male what he should or shouldn't look like. We do understand, but this is a legal issue."
Victoria Middleton, executive director of the American Civil Liberties Union, said similar controversies involving photos have cropped up in the past, though she had not heard of other cases at the DMV like Culpepper's.
She mentioned a Greenville student who was transitioning from female to male. The student wanted a new photo taken for the school yearbook because she didn't always want to be remembered as a girl.
The ACLU helped negotiate a resolution that satisfied the student and her family, Middleton said.
More often, problems have arisen among people who usually wear headdresses or scarves for religious or cultural reasons and have been required to remove the garb for a voter ID card, Middleton said.
Many of the cases must be resolved on a case-by-case basis, she explained.
"We certainly want government agencies ... to be accommodating to people based on their view of their own gender identity," Middleton said. "If an individual expresses himself or herself in one way, it stands to reason that the photo should reflect that.
"It's a matter of personal dignity and can be a matter of safety."
'A tough tightrope'
People on either side of that issue, though, disagree about the public-safety implications of such cases.
At the Charleston County Sheriff's Office, Maj. Eric Watson said DMV photos play a key role in identifying people during traffic stops. They're also used to match surveillance footage of a crime to a suspect.
"We rely heavily on proper pictures being taken by the DMV," Watson said. "That's one of the main reasons why they require you to have as natural an image as possible."
In Dorchester County, sheriff's Capt. Tony Phinney couldn't recall a problem posed by a gender variance when it comes to identification.
Deputies there more often encounter drivers and criminal suspects whose faces have been changed by years of methamphetamine use. The drug can cause people to look nothing like their license photo, he said.
But it's not a valid reason under the DMV's guideline for a new license to be issued.
Phinney, who heads his agency's Criminal Investigations Division, said his co-workers had discussed Culpepper's situation after reading news stories about it.
He said he understood both sides of the dispute, including activists who say a transgender boy without his usual makeup wouldn't represent his everyday appearance.
"That's a tough tightrope to walk, if that's how he looks all the time," Phinney said. "To come in with his hair slicked back and a flannel shirt, that's different from his day-to-day look. ... I don't know what the right answer is."
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This screen capture from WYFF TV news video shows photos of Chase Culpepper before (left) and after having to take off his makeup at the Anderson DMV office in March.×
This screen capture from NDN-WYFF TV news video shows the S.C. driverís license of 16-year-old Chase Culpepper. Before the photo would be taken, he was required to take off his makeup.×