The state’s top appellate lawyer on Monday ran into a series of questions about how Kansas would have suffered irreparable harm by allowing transgender Kansans to change their gender markers on driver’s licenses.
Judges on the Kansas Court of Appeals pressed Solicitor General Anthony Powell to explain what harm the state would have suffered if a district judge had not blocked Gov. Laura Kelly’s administration from allowing gender markers to be changed on licenses.
“What’s the urgency that should require that a court intervene and say, ‘Whoa, stop. We’re going to let the state’s interpretation rule before we’ve had a full hearing on this issue,'” said Judge Karen Arnold-Burger, a member of the three-judge panel.
Last year, Shawnee County District Judge Teresa Watson granted Attorney General Kris Kobach’s request for the injunction, ruling that a new law called the Women’s Bill of Rights required the sex designation on driver’s licenses to reflect someone’s biological sex at birth.
She found that the threat of injury to the state should take precedence over any harm the injunction would have on the five transgender Kansans who intervened in the case.
Powell said the new law – passed in 2023 with a two-thirds majority over the veto of the governor – “set the new reality.”
“The real argument here is we have a clear and unambiguous statement from the Legislature…that this is how you define a man and a woman, this is how you define sex and that’s synonymous with gender ” Powell said.
“It’s a clear directive, it’s unambiguous and the Department of Revenue has the obligation to follow it. That’s crux of the issue here,” he said. “For this court not to uphold the district court’s injunction…is to say, “We’re going to allow the lawlessness to continue.’
“I think that’s wrong,” he said.
Kobach issued a legal opinion that said that the Women’s Bill of Rights required the state to reverse any driver’s licenses and birth certificates that were modified to reflect someone’s gender identity.
The law established that an individual’s sex means their biological sex – either male or female – at birth.
The new law – known as SB 180 – required any state agency, school district or local government that collected vital statistics for public health, crime, economics or other topics to identify each individual as either a male or female at birth.
Kobach sued the Department Revenue and the Division of Motor Vehicles when it refused to change the policy for allowing transgender Kansans to change their gender markers on driver’s licenses.
Kobach argued in court that a mere violation of the statute presented irreparable harm. He also said law enforcement would be hurt if the new law wasn’t enforced.
But the Department of Revenue argued that the Women’s Bill of Rights did not apply to driver’s licenses because the legislation addressed “sex” while the driver’s license statutes speak in terms of “gender.”
State law requires a driver’s license application to indicate the applicant’s gender and says that a license must state the driver’s gender.
However, the driver’s license itself denotes the word “sex” not “gender,” which the attorney general said is tantamount to the same thing, a point disputed by lawyers for the Department of Revenue and the plaintiffs who intervened in the case.
Powell said language in the statute indicates that the Legislature wanted to cut a broad swath when it defined “sex” as an individual’s biological sex at birth when it passed SB 180 two year ago.
“I think that is supportive of our argument that wherever sex appears – and in this instance where gender is synonymous with sex – you have to use the biological term of sex from birth as defined in Senate Bill 180,” he said.
Pedro L. Irigonegaray, representing the Department of Motor Vehicles, said no one would have suffered an irreparable harm because the law was not violated.
“That argument is grounded on the proposition that the law is applicable,” he said.
“The Department of Revenue’s position is that the law is not applicable, therefore the department is not violating the law.
“If the Legislature intended for Senate Bill 180 to apply to driver’s licenses…they could have used the term ‘gender’ to include driver’s licenses,” he said.
“But to suggest that the Department of Revenue is in violation of the law is inaccurate because that law is not applicable to the Department of Revenue’s issuance of licenses,” he said. “So therefore, that allegation of irreparable harm is nonexistent.”
Arnold-Burger asked the solicitor general whether he had other cases showing that if an attorney general concludes that a state agency is violating a law, does that mean the state is automatically suffering irreparable harm.
Or, she asked, “Would this actually be a new law…that if an agency is conducting itself in a way contrary to the interpretation of the law by the attorney general, then a temporary injunction would be the appropriate way to get that stopped rather than just a regular lawsuit that doesn’t have injunctive relief?”
Powell said the attorney general is charged with enforcing the law.
“It’s intolerable for an agency of state, they’re the servants of the people and the people have said you are to do A, and B and the department takes it upon itself to say, ‘We’re not doing the A and B because we think you’re wrong about that,'” he said.
“That’s what makes it a serious matter,” he said.
Arnold-Burger also questioned the presence of irreparable harm in the case if the Legislature – now in session – could go back and define “gender” as it sees fit.
“The Legislature is in session right now,” she said. “They could go in and make that definition right now. Does that impact the finding of irreparable harm?
“Can the harm be irreparable if they could go in and change the legislation at any time? They could have last session and could this session.”
