Kansas AG sues for the right to force trans people to use the wrong gender markers on IDs

Kansas Attorney General Kris Kobach (R) has filed a lawsuit to force the state government to discriminate against trans people on their driver’s licenses and birth certificates.

The suit asks the court to demand the Department of Revenue’s Division of Vehicles comply with S.B. 180, a sweeping new anti-trans law that, among other things, bans trans people from updating the gender marker on their birth certificates and driver’s licenses.

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This is Kobach’s latest move in an ongoing battle between himself and the state’s Democratic Gov. Laura Kelly.

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In April, Kelly vetoed S.B. 180, but the state’s Republican-led legislature overrode her veto to pass the bill. Once the bill took effect on July 1, Kelly 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 Kobach.

A banner at the top of the Department of Revenue’s website declares that the “enactment of Senate Bill 180 on July 1 will not impact the longstanding procedures for obtaining, renewing, and updating a Kansas driver’s license as they pertain to gender markers.”

Kobach – who also lost to Kelly in the 2018 gubernatorial race – also filed a motion in June to end a 2019 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.

In conjunction with that motion, Kobach announced that trans people who already had a birth certificate or license changed could keep the documents but that the state’s data would revert back to their sex assigned at birth.

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.

Kobach’s current lawsuit against the Department of Revenue blasts Kelly, declaring she “cannot pick and choose which laws she will enforce and which she will ignore.”

“She does not possess the power that English monarchs claimed prior to the ‘Glorius Revolution’ of 1688,” the suit continues, “namely, the power to suspend the operation of statutes.”

Yet Kobach has also been accused of failing to enforce the law in his attempt to retroactively remove gender markers from the documents of trans citizens who received their licenses before the law took effect.

American Civil Liberties Union of Kansas executive director Micah Kubic told KMUW that S.B. 180 does not require the measures Kobach has announced. “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.”

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

Kobach also argues in the lawsuit that the state has already been using sex and gender synonymously since state statute says driver’s licenses must reflect an individual’s “gender” but the actual documents issued use the word “sex.”

Today, only three days after Kobach filed the lawsuit, District Judge Teresa Watson ordered the Kansas Department of Revenue to immediately stop allowing gender changes. The order will last up to two weeks but can be extended as the hearing goes on.

S.B. 180 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.

Editor’s Note: This article has been updated to reflect a recent order from Judge Teresa Watson for the Kansas Department of Revenue to immediately stop allowing gender changes for at least two weeks as the case is considered.