Governor boldly defies Republican AG to protect trans people’s access to accurate birth certificates

Kansas Gov. Laura Kelly (D) has directed state agencies to continue to allow transgender citizens to change the gender markers on their birth certificates and driver’s licenses in defiance of Republican Attorney General Kris Kobach.

The governor’s directive comes days after Kobach announced formal legal guidance on enforcing S.B. 180, a sweeping new anti-trans law passed in April and set to take effect on July 1.

Related:

Kansas is going to change gender markers on trans people’s IDs back to their sex assigned at birth

Attorney General Kris Kobach (R) announced legal guidance on enforcing the state’s sweeping new anti-trans law.

The law has been characterized as a “women’s bill of rights” by Republican supporters who claim it is necessary to keep transgender women and girls out of women’s restrooms and locker rooms. In addition to legally defining “sex” in terms of reproductive biology, the law also bans trans people from accessing facilities that correspond with their gender identity in schools, prisons, women’s shelters, rape crisis shelters, and locker rooms. It bans trans people from updating the gender marker on their birth certificates and driver’s licenses.

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In April, Kelly vetoed S.B. 180, but the state’s Republican-led legislature overrode her to pass the bill.

Transgender Kansans have been able to change the gender markers on their birth certificates and driver’s licenses since 2019, when the state agreed to a consent decree settling a 2018 lawsuit brought by four transgender residents who claimed that the state’s refusal to correct birth certificates violated their constitutional right to equal protection.

But last Friday, Kobach filed a motion asking a federal judge to end that consent decree. On Monday, the AG announced that while transgender people who had already corrected their birth certificates or driver’s licenses would be allowed to keep and continue to use those documents, the state’s data would revert to the sex they were assigned at birth and any documents issued after July 1 would also reflect that data.

American Civil Liberties Union of Kansas executive director Micah Kubic told KMUW earlier this week that S.B. 180 does not require the measures Kobach announced on Monday. “These are of his own volition and interpretation, driven by his own extreme ideological perspective, not by requirements of the law, the constitution, or the best interests of Kansans,” Kubic said.

Prior to Kobach’s announcement, legal experts had assumed that the state would not move to change gender markers that had already been updated under the 2019 consent decree, leading many transgender Kansans to rush to update their documents before the law was scheduled to take effect.

“The laws should not be considered retroactive,” UMKC Law School professor Steve Leben told KCTV5 News Thursday. “The law itself says it’s effective July 1, takes effect and it’s enforced from that date.”

Leben added that while Kobach’s guidance on birth certificates may be legally sound, the new legislation cannot contradict the 2019 consent degree allowing trans people to update their driver’s licenses. “The statute defined the word sex, but the statute already in place with respect to driver’s licenses says they list a person’s gender. And there’s a pretty good argument that those two terms don’t mean the same thing today.”

Following Kelly’s announcement on Thursday, UMKC political science professor Greg Vonnahme told KCTV5 News that the governor’s directive would typically supersede an attorney general’s advisory opinion. “That depends on the governor being right, however,” Vonnahme said. “[Members of the executive branch] can’t rewrite the law. They can’t change the law. They can’t contradict the law.”

In a statement Thursday, Kobach called Kelly’s decision “nonsense.”

“The Legislature passed S.B. 180 and overrode Governor Kelly’s veto specifically to ensure that those documents reflect biological sex at birth,” he said. “The governor doesn’t get to veto a bill and then ignore the Legislature’s override. She is violating her oath of office to uphold Kansas law. We will see her in court.”