DHS Drops New "No Match" Enforcement Procedures

November 20, 2007
DHS Drops New "No Match" Enforcement Procedures

The Department of Homeland Security (DHS) has dropped its attempt at enforcing their new "No Match" enforcement procedures, issued in mid-August. The enforcement procedures encountered obstacles from the beginning with a lawsuit by labor and immigration groups blocking the rule's progress only a couple weeks after their issuance. During the rule's open-comment period, many organizations, including NCTE, filed comments opposing adoption of the rules, arguing that the procedures would unfairly jeopardize workers' jobs. To read NCTE's comments, click here.

The DHS rules would have required employers to either fire employees or face stiff penalties when employee records do not match information in the Social Security Administration (SSA) database, such as name, Social Security number, or gender. Transgender employees who are listed as one gender in SSA records, but who live and work in another gender, would have been one of the groups at greater risk of losing their jobs as a result of the DHS enforcement procedures.

Last month, on October 10th, the enforcement procedures were dealt a severe blow when the presiding judge issued a preliminary injunction blocking the rules, finding that the rules would cause irreparable harm to both innocent workers and employers. DHS signaled its abandonment of these rules on Friday, the day after Thanksgiving, by requesting that a judge put the lawsuit on hold until March 2008. DHS plans to introduce new, replacement enforcement procedures, which DHS believes will have a better chance of standing up to legal scrutiny, in December 2007.

Though the DHS enforcement procedures have been pulled, SSA will continue to compare their database against employer-submitted information, as it has for years before the issuance of the DHS rules. SSA has stricter standards for changing gender markers than many departments of motor vehicles, which has lead to employers of some transgender workers receiving notification of gender no-matches. For many of those transgender workers, this notification has effectively unwillingly revealed them as transgender in their workplace.

NCTE provided expertise on No-Matches to the groups who brought the lawsuit blocking the DHS procedures. NCTE will continue to monitor the situation and is working to stop "gender" as a category for data comparison in SSA records.

The National Center for Transgender Equality is a national social justice organization devoted to ending discrimination and violence against transgender people through education and advocacy on national issues of importance to transgender people. The National Center for Transgender Equality is a 501(c)3 organization. For more information, please visit www.nctequality.org.