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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
TERESA CULPEPPER,
on behalf of her minor child C. C.,
Plaintiff,
v.
KEVIN A. SHWEDO,
in his official capacity as the Executive
Director of the South Carolina Department of
Motor Vehicles,

Civil Action No.: 14-cv-03504-CMC

and
TAMMY KING,
in her official capacity as the Manager of the
Anderson Office of the South Carolina
Department of Motor Vehicles,
Defendants.

PLAINTIFFS MEMORANDUM OF LAW

IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS

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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT ................................................................................................... 1
STATEMENT OF FACTS ............................................................................................................ 3
SCDMVs Unconstitutional Photo Policy As Applied To C. C. ....................................... 3
SCDMVs Minor Revision of the Procedure Remedies No Defects ................................. 4
ARGUMENT ................................................................................................................................. 7
I.

II.

THE SCDMV HAS NOT CHANGED THE POLICY CHALLENGED IN

THE COMPLAINT ............................................................................................... 8
A.

The SCDMV Photo Policy Has Not Changed ........................................... 8

B.

The Minor Addition to the SCDMV Procedure DL-201 Has Not

Altered the SCDMV Photo Policy ............................................................. 9

DEFENDANTS HAVE NOT MET THE HEAVY BURDEN OF

SHOWING THAT THE CHALLENGED CONDUCT CANNOT BE
REASONABLY EXPECTED TO RECUR......................................................... 10

CONCLUSION ............................................................................................................................ 12

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TABLE OF AUTHORITIES
Page(s)
Cases
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc.,
528 U.S. 167 (2000) .........................................................................................................7, 8, 11
Prison Legal News v. Stolle,
No. 13-cv-424, 2014 U.S. Dist. LEXIS 170252 (E.D. Va. Dec. 8, 2014) ...............................11
Town of Nags Head v. Toloczko,
728 F.3d 391 (4th Cir. 2013) ...............................................................................................8, 12
Wall v. Wade,
741 F.3d 492 (4th Cir. 2014) ........................................................................................... passim
Rules and Statutes
Fed. R. Civ. P. 12(b)(1)....................................................................................................................2

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Plaintiff Teresa Culpepper (Plaintiff), on behalf of her minor child C. C. (C. C.),
respectfully submits this memorandum of law in opposition to the Motion to Dismiss (the
Motion) of Defendants Kevin A. Shwedo (Shwedo), the Executive Director of the South
Carolina Department of Motor Vehicles (SCDMV), and Tammy King (King, and
collectively with Shwedo Defendants), Manager of the SCDMV office in Anderson, South
Carolina (the Anderson DMV).
PRELIMINARY STATEMENT
Defendants Motion must be denied because none of Plaintiffs claims have been mooted
by the minor change in SCDMV procedure that Defendants assert now allows C. C. to retake a
drivers license photo while wearing regular everyday makeup.

The new language in the

SCDMV procedure does not alter or purport to supersede the defective language that led to
discrimination against C. C. identified in Plaintiffs Complaint as the SCDMV Photo Policy.
Indeed, a DMV spokesperson cited the new language in statements to the media defending
Defendants unconstitutional and discriminatory acts. Moreover, even if Defendants agreement
to allow C. C. to retake a drivers license photograph temporarily resolves some issues,
Defendants have done nothing to meet the heavy burden of showing that their challenged
conduct could not reasonably be expected to recur.
Defendants, acting in their official capacities, unconstitutionally required that C. C., a
sixteen-year-old high school student, remove everyday cosmetic makeup before being permitted
to take a drivers license photo in March 2014. As alleged in the Complaint (Compl.),
Defendants relied on the following language in SCDMV Procedure DL-201:
At no time will an applicant be photographed when it appears that
he/she is purposely altering his/her appearance so that the photo
would misrepresent his/her identity.
(the SCDMV Photo Policy). (Compl. 58.)
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In their four-page Motion, Defendants seek to dismiss this case as moot under Federal
Rule of Civil Procedure 12(b)(1) because (i) in May 2014 one sentence was added to SCDMV
Procedure DL-201 stating that [r]egular everyday cosmetic makeup is acceptable because it is
generally used to highlight natural beauty and/or to hide blemishes or flaws, (Motion at 2), and
(ii) a month after the Complaint was filed, Defendant Shwedo made a representation that in
light of [this additional sentence added five months earlier], the agency consents to C. C.s
photo being retaken (id. Ex. B).
But Defendants make no argument that the SCDMV Photo Policy has changed since
C. C.s visit to the Anderson DMV on March 3, 2014, and only argue that other language has
been added, which does not purport to alter the SCDMV Photo Policy. The language challenged
by Plaintiffs Complaint remains exactly the same in the updated procedure submitted with the
Motion. (See Motion Ex. A at 4 (At no time will an applicant be photographed when it appears
that he/she is purposely altering his/her appearance so that the photo would misrepresent his/her
identity.).) There is no indication that the new sentence in the procedure trumps the portion of
the procedure identified as the SCDMV Photo Policy, and although Defendants now argue that
the new sentence allows C. C. to be photographed for a license wearing makeup, it was added
before the SCDMV denied C. C.s well publicized June 9, 2014 request to retake the photo
while wearing makeup. In fact, the SCDMVs spokesperson quoted the new sentence repeatedly
to the media in June 2014, three months before the Complaint was filed, in support of the
SCDMVs treatment of C. C. on March 3, 2014 and in support of its decision to deny C C.s
June 9, 2014 request to have the photograph retaken. Moreover, the May 2014 addition to the
procedure was expressly quoted in Plaintiffs Complaint, which alleged that such addition was

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used as support for Defendants treatment of C. C., and therefore cannot moot Plaintiffs claims
as alleged. (Compl. 70.)
The only development since the filing of the Complaint is Defendant Shwedos unsworn
assertion that the agency consents to C. C.s photograph being retaken. (Motion Ex. B.) This
statement alone is not sufficient to end the controversy at issue because it does not change the
SCDMV Photo Policy, and even if it did temporarily resolve the controversy with respect to
Plaintiff, Defendants fail to meet the heavy burden requiring them to make it absolutely
clear that the challenged practice could not reasonably be expected to recur. Wall v. Wade,
741 F.3d 492, 497 (4th Cir. 2014). The SCDMV Photo Policy, even with the May 2014
modification to Procedure DL-201, continues to improperly grant Defendants and other SCDMV
employees unfettered discretion to deny applicants the ability to take a drivers license photo and
obtain a drivers license. For these reasons, Defendants motion to dismiss must be denied.
STATEMENT OF FACTS
SCDMVs Unconstitutional Photo Policy as Applied to C. C.
On March 3, 2014, C. C.s mother took C. C., who was assigned male at birth, to the
Anderson DMV to obtain a drivers license. (Compl. 13.) As is typical, C. C. was wearing
makeup. (Id. 15.) C. C.s mother informed SCDMV employees that C. C. wears makeup daily
and looked the same way on a regular basis. (Id. 22.)
Defendant King, in sight and in hearing of many members of the public, loudly told C. C.
and Plaintiff that C. C. could not take a drivers license photo with makeup because C. C. needed
to look male in a drivers license photograph. (Id. 25, 32-33, and 97.) C. C. was forced to
remove the makeup with water and brown paper towels in the SCDMV restroom. (Id. 42-46.)
Defendant King then again humiliated C. C. by loudly saying C. C. had not removed enough

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makeup and requiring C. C. to return to the restroom a second time while members of the public
in the Anderson DMV lobby laughed and snickered. (Id. 47-51.)
As alleged in the Complaint, C. C.s wearing of makeup does not conform to Defendants
sex stereotypes, including the stereotype that males do not wear makeup, and as a result, the
SCDMV discriminated against C. C. by refusing to allow C. C. to take a drivers license
photograph while wearing regular everyday makeup.

(Id. 81.)

In doing so, SCDMV

employees, including Defendant King, unconstitutionally restrained C. C.s freedom of speech

and expression and compelled C. C. to convey Defendants ideological message that men and
women should dress and appear in accordance with their sex stereotypes. (Id. 82.)
SCDMVs Minor Revision of the Procedure Remedies No Defects
As alleged in the Complaint, Defendant King relied on the SCDMV Photo Policy when
she required that C. C. remove makeup at the Anderson DMV on March 3, 2014. (Id. 58.)
The current procedure submitted with the Motion contains the exact same SCDMV Photo Policy
as is challenged in the Complaint. (Compare id. with Motion Ex. A. at 4.) The one sentence that
was added to the SCDMV Procedure DL-201 on May 27, 2014 states that [r]egular everyday
cosmetic makeup is acceptable because it is generally used to highlight natural beauty and/or to
hide blemishes or flaws. (Motion Ex. A at Section III(A)(2).) But this new sentence is the only
change to the procedure and has no apparent impact on the SCDMV Photo Policy portion of
Procedure DL-201 or the SCDMVs impermissible interpretation of the photo policy.
This lack of change was demonstrated by the fact that after the sentence was added, the
SCDMV continued to stand by its unconstitutional treatment of C. C. and its spokesperson
quoted the new sentence as further justification for C. C.s treatment. Thirteen days after the
new sentence to the procedure was added, the Transgender Legal Defense and Education Fund
(TLDEF), acting on C. C.s behalf, sent a letter to Defendant Shwedo on June 9, 2014 asking
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that C. C. be allowed to retake a drivers license photograph while wearing everyday makeup.
(Compl. 53.) Neither Defendant Shwedo nor any other employee of the SCDMV responded
directly to TLDEF or C. C. (Id. 56.)

Instead, Beth Parks, an employee in the Strategic

Communications and Community Affairs Department of the SCDMV, made at least six
statements to the media in June 2014 defending SCDMVs treatment of C. C., and making clear
that she was speak[ing] for the agency not for [her]self. (Id. 56, 60-61.)
Parks informed the media of the SCDMV Photo Policy and reported it verbatim to news
organizations. (Id. 62.) She also quoted the modification to the procedure that Defendants
now assert moots this case. (Id. 71-72, 74-75.) Parks confirmed to the media that the
SCDMV Photo Policy is the applicable SCDMV policy and was relied upon by the SCDMV
employees working at the Anderson DMV on March 3, 2014, including Defendant King. (Id.
63.) Parks indicated that the SCDMV Photo Policy required C. C. to remove makeup before
the SCDMV would allow C. C. to be photographed for a drivers license. (Id. 64.) Parks said
that the SCDMV employees in the Anderson DMV, including Defendant King, did what they
are required to do and were just following DMV policy. (Id. 65.) Parks indicated that if
C. C. had been allowed to take the photograph with makeup on, it would have violated the
SCDMV Photo Policy. (Id. 66.) Parks, relying on the newly added language in SCDMV
procedure, made clear that women are allowed to wear makeup of the kind worn by C. C. on
March 3, 2014 in their drivers license photos. (Id. 70-77.) Parks quoted the new language to
the media and stated that for women, regular everyday make up is acceptable. (Id. 72.)
Parks acknowledged that C. C. wore everyday makeup on a regular basis. (Id. 76.) She
specifically stated that, I understand that he does wear makeup all the time, and for women,
regular everyday make up is acceptable, but it is unusual to see it on a young man. (Id.) Parks

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stated, [i]f your name is David Jones and it says you are a male, then you should look like a
male. (Id. 77.)
In September 2014, Plaintiff brought the Complaint alleging Defendants had
(1) impermissibly

discriminated

against

C. C.

based

on

sex

and

sex

stereotypes,

(2) unconstitutionally restrained C. C.s freedom of expression and compelled and continue to
compel C. C. to convey an ideological message of their design, and (3) deprived C. C. of the
constitutionally protected liberty interest in C. C.s personal appearance. Moreover, Plaintiff
alleged that the SCDMV Photo Policy is unconstitutionally vague and overbroad, enabling
SCDMV personnel to make arbitrary and capricious decisions based on their perception of how a
particular individual should look as a male or female.
After this action was commenced, Defendant Shwedo sent a letter to Plaintiff and C. C.
dated October 7, 2014, in which he acknowledged that C. C. desire[s] to have [a] drivers
license photograph taken while wearing everyday makeup that [C. C.] wear[s] on a daily basis in
public. (Motion Ex. B.) He then states that [i]n light of the agency having modified its
drivers license photograph policy on May 27, 2014, the agency consents to [C. C.] having [a]
photograph re-taken. (Id.)
As was true at the time of the filing of the Complaint, the SCDMV Photo Policy is still in
place and, as demonstrated by Ms. Parks statements, SCDMV officials have continued to
interpret it in a manner guided by sex stereotypes, despite the language added to the procedure in
May 2014. (Id. 117.) The SCDMV has continued to refuse to allow other individuals who are
gender non-conforming to take drivers license photographs consistent with those individuals
daily appearances. (Id. 118.)

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Even with the modification to the procedure, the SCDMV Photo Policy continues to
center on whether changes to appearance purposely misrepresent an applicants identity. (Id.
119.) As alleged in the Complaint, the use of the word identity in the SCDMV Photo Policy
renders it impermissibly vague and overbroad. (Id. 122.) The word identity has been
inconsistently interpreted and applied by SCDMV employees to, in some cases, include sex or
sex stereotypes. (Id. 123.)
The Complaint alleges that the SCDMV Photo Policys undefined use of the word
identity impermissibly allows SCDMV employees to make arbitrary and capricious restrictions
often based on nothing more than sex stereotypes on an individuals appearance before they
will allow that person to be photographed for a license. (Id. 125.) Parks explicitly and
repeatedly told media outlets that the word identity in the SCDMV Photo Policy refers to sex.
(Id. 128.) Parks, referring to C. C., said that [h]is identity is boy. (Id. 129.) Parks stated
that its important for a license picture to portray who the person is legally. (Id. 130.) Parks
also stated that his identity is as a male, and his drivers license says that he is a male, so his
identity is a male. (Id. 131.) Parks said that [i]f its Thomas Jones on the license and yet it
looks like a female, that is very confusing for law enforcement officers. She continued, [t]hey
want to know what the identity is. (Id. 132.)
ARGUMENT
Plaintiffs Complaint cannot be dismissed as moot in light of the very authorities cited by
Defendants. It is well established that a defendants voluntary cessation of a challenged
practice moots an action only if subsequent events made it absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to recur. Wall, 741 F.3d at 497 (quoting
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000)). The heavy
burden of persua[ding] the court that the challenged conduct cannot reasonably be expected to
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start up again lies with the party asserting mootness. Id. (quoting Laidlaw, 528 U.S. at 189.)
[W]hen a defendant retains the authority and capacity to repeat an alleged harm, a plaintiff's
claims should not be dismissed as moot. Id. (citing Town of Nags Head v. Toloczko, 728 F.3d
391, 395 n.3 (4th Cir. 2013)). [B]ald assertions of a defendant -- whether governmental or
private -- that it will not resume a challenged policy fail to satisfy any burden of showing that a
claim is moot. Id. at 498. As set forth below, Defendants assertions do not come close to
meeting their heavy burden. Instead of Defendants establishing that it is absolutely clear that
the allegedly wrongful behavior could not reasonably be expected to recur, Defendants have
established that the wrongful behavior actually did recur and could again.
I.

THE SCDMV HAS NOT CHANGED THE POLICY CHALLENGED IN THE

COMPLAINT
A.

The SCDMV Photo Policy Has Not Changed

The SCDMV Photo Policy has not changed since C. C. was denied the opportunity to
have a drivers license photograph taken while wearing everyday cosmetic makeup and therefore
this case cannot be deemed moot. As alleged in the Complaint, the SCDMV Photo Policy states
that [a]t no time will an applicant be photographed when it appears that he/she is purposely
altering his/her appearance so that the photo would misrepresent his/her identity. (Compl.
58.) Defendant King relied on the SCDMV Photo Policy when she required that C. C. remove
cosmetic makeup and publically humiliated C. C. at the Anderson DMV on March 3, 2014. (Id.
42-51, 58.) Beth Parks relied on and cited the SCDMV Photo Policy when she told the media
that (i) the policy required C. C. to remove cosmetic makeup before the SCDMV would allow
C. C. to be photographed for a drivers license; (ii) the SCDMV employees in the Anderson
DMV, including Defendant King, did what they are required to do and were just following
DMV policy; and (iii) if C. C. had been allowed to take the photograph with makeup on, it

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would have violated the SCDMV Photo Policy.

Entry Number 21

(Id. 60-66.)

Page 12 of 16

The modified procedure

submitted as an exhibit to the Motion contains the exact same language as was in effect at all
times relevant to this case. (Motion Ex. A at 4 (At no time will an applicant be photographed
when it appears that he/she is purposely altering his/her appearance so that the photo would
misrepresent his/her identity.).)

Because the SCDMV Photo Policy has not changed and

Plaintiff could be subjected to this treatment again in the future, Plaintiffs challenges to this
policy in the Complaint are not moot and the Motion should be denied.
B.

The Minor Addition to the SCDMV Procedure DL-201 Has Not Altered the
SCDMV Photo Policy

The new sentence added to Procedure DL-201 on May 27, 2014, permitting certain
makeup to be worn in drivers license photos, does not alter the SCDMV Photo Policy and
therefore cannot moot this action. The modification to the procedure does not purport to
supersede the SCDMV Photo Policy and its vague references to identity. Nor does the new
sentence expressly state that cosmetic makeup is acceptable regardless of an applicants sex.
The new sentence does not alter or trump the SCDMV Photo Policys language on identity relied
upon by Defendants in their unconstitutional treatment of C. C. (Compl. 58-66.)
In addition, the SCDMV, through its spokesperson, already publicly and repeatedly relied
on the new sentence to support Defendants discriminatory and unconstitutional treatment of
C. C. In response to TLDEFs request that C. C. be allowed to retake a drivers license photo,
Ms. Parks, a spokesperson for the SCDMV, made at least six statements to the media in June
2014 in which she denied C. C.s request and defended Defendant Kings actions. (Id. 56, 6066.) In doing so, Ms. Parks was undeterred by the procedure change cited by Defendants and
actually paraphrased the new sentence as further justification for the SCDMVs unconstitutional

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treatment of C. C. when she told the media that [r]egular everyday makeup is accepted because
its used to highlight or hide blemishes. (Id. 75)
Despite the Defendants newfound belief that the new language regarding makeup is
gender neutral, Parks relied on the newly added language when she made clear that women, but
not men, are allowed to wear makeup of the kind worn by C. C. on March 3, 2014 in their
drivers license photos. (Id. 70-77.) Parks suggested that while for women, regular everyday
make up is acceptable, it was not acceptable for a man. (Id. 76.) Parks stated, [i]f your name
is David Jones and it says you are a male, then you should look like a male. (Id. 77.) Under
these circumstances, no speculation regarding a potential impermissible interpretation of the
SCDMVs modified procedure is required Ms. Parks has demonstrated that SCDMV is free to
continue to interpret and apply its current policies in a discriminatory fashion. In other words,
the harm alleged by Plaintiffs Complaint recurred and was officially sanctioned by the SCDMV
after the procedure change that Defendants Motion relies upon.
Because the SCDMV Photo Policy has not changed at any relevant time and because the
new sentence does not even purport to alter the challenged SCDMV Photo Policy, the minor
modification to the procedure has had no effect and the Motion should be denied.
II.

DEFENDANTS HAVE NOT MET THE HEAVY BURDEN OF SHOWING

THAT THE CHALLENGED CONDUCT CANNOT BE REASONABLY
EXPECTED TO RECUR
Even if the changes to DL-201 did actually alter the SCDMV Photo Policy and its

impermissible interpretation, Defendants cannot prevail in showing that their challenged conduct
cannot be reasonably expected to recur.
Defendants have provided no evidence that SCDMV employees will not return to the
policy interpretation and conduct challenged in the Complaint.

Defendants assert without

evidence or explanation that it is practically impossible for the allegedly wrongful behavior
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to be reasonably expected to recur. (Motion at 4). But bald assertions of a defendant . . . that
it will not resume a challenged policy [and therefore] fail to satisfy any burden of showing that a
claim is moot. Wall, 741 F.3d at 498. Defendants assertions are insufficient, as a matter of
law, to meet [t]he heavy burden of persua[ding] the court that the challenged conduct cannot
reasonably be expected to start up again. Id. at 497 (quoting Laidlaw, 528 U.S. at 189.)
As discussed above, the SCDMV has already interpreted the new sentence in the
procedure as supporting rather than reforming the challenged activity. Defendants ignore this
agency sanctioned action, as well as their ongoing treatment of other applicants, and provide no
reason or evidence as to why the agency and its employees could not be reasonably expected to
return to their impermissible interpretation as soon as this case is dismissed.
Moreover, even when an agency has corrected a constitutional violation such recent
changes in policy do not undercut [a plaintiffs] ability to obtain injunctive relief as to the prior
practices applied during the period relevant to [the] litigation and challenged in [the] complaint.
Prison Legal News v. Stolle, No. 13-cv-424, 2014 U.S. Dist. LEXIS 170252, at *37 (E.D. Va.
Dec. 8, 2014). The Eastern District of Virginia recently addressed this question when the
defendants modified their challenged policy to make it constitutional. That court held that such
changes do not moot a case:
[P]articularly [when] Defendants do not in any way acknowledge
that their prior practices were unconstitutional, and instead portray
their recent policy revisions as clarifications. To the extent that
Defendants maintain that their prior procedures were lawful,
[Plaintiffs] injunctive claim is not moot, as claimed by
Defendants, because there is no impediment to Defendants
returning to their past practices.
Id. at *38. This is precisely what has happened in the case at bar where Defendants have not
acknowledged any wrongdoing and there are no impediments to Defendants returning to their
past practices.
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For these reasons, Defendant Shwedos unsworn statement that the SCDMV consents
to C. C. retaking a drivers license photograph also cannot render the case moot. (Motion Ex. B
at 1.) [W]hen a defendant retains the authority and capacity to repeat an alleged harm, a
plaintiff's claims should not be dismissed as moot. Wall, 741 F.3d at 497 (citing Toloczko, 728
F.3d at 395 n.3). Shwedos statement does not even suggest that the SCDMVs consent is
irrevocable or that C. C. would not face a similar challenge the next time a photograph is
required. Having retain[ed] the authority and capacity to repeat an alleged harm, Defendant
Shwedos consent cannot justify dismissal of Plaintiffs claims as moot. At best, Shwedos
letter reveals an inconsistent and unreliable interpretation of the SCDMVs vague and overbroad
policy that cannot support any argument that the unconstitutional interpretation will not be
undertaken again.
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request the Court deny Defendants
Motion to Dismiss in its entirety.

Signature on following page

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Respectfully submitted,
s/ Marshall Winn
Marshall Winn (529)
Wallace K. Lightsey (1037)
WYCHE, P.A.
44 East Camperdown Way
Greenville, S.C. 29601
Tel.: (864) 242-8200
Fax: (864) 235-8900
mwinn@wyche.com
wlightsey@wyche.com

OF COUNSEL:
(Pro Hac Vice Applications To Be Filed)
Peter Guirguis
Melanie M. Kotler
David B. Schwartz
NORTON ROSE FULBRIGHT US LLP
666 Fifth Avenue
New York, NY 10103
Tel.: (212) 318-3000
Fax: (212) 318-3400
peter.guirguis@nortonrosefulbright.com
melanie.kotler@nortonrosefulbright.com
david.schwartz@nortonrosefulbright.com

Attorneys for Plaintiff

Michael D. Silverman
TRANSGENDER LEGAL DEFENSE &
EDUCATION FUND, INC.
151 W. 19th Street
Suite 1103
New York, NY 10011
Tel.: (646) 862-9396
Fax: (914) 920-4057
msilverman@transgenderlegal.org
Dated: February 6, 2015
Greenville, South Carolina

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