(Updated to include comment from Lambda Legal)
A federal judge on Thursday granted Attorney General Kris Kobach’s request to modify the terms of a 2019 consent agreement so it would keep transgender Kansans from correcting their gender marker on their birth certificates.
U.S. District Judge Daniel Crabtree found that circumstances had changed since the consent order was agreed to four years ago, namely the passage of a new law establishing that an individual’s sex means their biological sex at birth.
The law – also known as SB 180 and the Women’s Bill of Rights – requires schools, state agencies or any other government agency that collect vital statistics to identify individuals as either male or female at birth.
The new law also allows distinctions to be made between the sexes with respect to athletics, prisons or other detention facilities, domestic violence shelters, rape crisis centers, locker rooms and restrooms.
The case focused more on federal court procedure and whether the legal climate is different in 2023 than it did the merits and constitutionality of the new law.
Kobach’s office argued in a federal court that it was impossible to enforce that 2019 consent order after the Legislature enacted the new law this year.
Crabtree agreed, noting that rules of federal procedure allowed for parties to get out of a consent order if circumstances changed significantly.
“In sum, SB 180 significantly changed the law,” he wrote in the 19-page opinion.
“And in these circumstances, applying the conflicting consent judgment prospectively is no longer equitable. SB 180 conflicts with the consent judgment.”
The judge struck provisions of the consent order allowing transgender Kansans to obtain birth certificates that reflect their sex consistent with their gender identity.
The federal court decision is different from the case playing out in state court, where Kobach is trying to stop Gov. Laura Kelly’s administration from allowing transgender Kansans to change gender markers on driver’s licenses.
A Shawnee County judge has already temporarily blocked the Kelly administration from changing gender markers on driver’s licenses.
Four years ago, the state health department entered into a consent order ending a federal lawsuit that challenged the state’s previous birth certificate policy for transgender people as discriminatory.
The plaintiffs argued in that case that the state health department denied transgender Kansans an accurate birth certificate in violation of equal protection and due process clauses of the U.S. Constitution.
Within six months of taking office in 2019, the Kelly administration negotiated a deal that reversed the previous policy and allowed those gender markers to be changed.
The state health department reported that 912 birth certificates had been changed from June 24, 2019 – the day the consent decree was announced – through June 27.
“While today’s decision is disappointing, it’s not the end of the road,” Kelly’s spokesperson, Brianna Johnson, said in a statement Thursday.
“The state should not discriminate or encroach into Kansans’ personal lives – it’s wrong, it’s bad for business, and it’s exactly why we entered this agreement with the court years ago,” Johnson said.
She said the decision would be reviewed, including possible next steps.
Kobach praised the court’s ruling late Thursday afternoon.
“The trans activists in this case attempted to nullify state law. The Court held that SB 180 means what it says – birth certificates in Kansas must reflect biological sex.
“Today’s decision is a rejection of the activists’ and Gov. Kelly’s attempt to twist the English language beyond recognition.
“The court has told the Governor what the law clearly means. We now expect the governor to follow the law and cease changing birth certificates to something other than biological sex at birth.”
Omar Gonzalez-Pagan, lead lawyer in the case for Lambda Legal, said he was disappointed in the judge’s ruling.
“Let us be clear, however, today’s decision does not approve of SB180, as interpreted by the Kansas Attorney General, but simply holds that the circumstances have changed,” Gonzalez-Pagan said in a statement.
“Indeed, the court went to great lengths to specify that it was not opining on SB 180’s constitutionality. The interpretation of SB180 advocated by Kris Kobach and his ilk is as unlawful as the policies we first challenged in our lawsuit in 2018.”
Crabtree said that when the plaintiffs filed their original complaint, there was no specific statute or regulation that prohibited the correction of the gender marker on a birth certificate in order to reflect the gender identity of a transgender person.
“The Kansas Legislature since has enacted a law that…only allows defendants to designate a person’s sex on a birth certificate as ‘male or female at birth,’” he wrote.
“The parties did not anticipate legislation like SB 180 when they entered the consent Judgment. The state legislature had not spoken on this issue earlier. Now, it has.”
Appointed to the bench by former President Barack Obama, Crabtree said he was reluctant to get involved in the dispute over the meaning of the new Kansas law.
“Absent some issue arising under federal law, a dispute about the meaning of Kansas law belongs in a Kansas state courthouse,” he wrote.
“And in parallel litigation pending right now in Kansas state court, Kansas state officials are litigating their disputes about SB 180’s meaning,” he wrote.
“The court’s analysis and conclusion don’t diminish the authority of Kansas courts to decide what Kansas law is,” he wrote.
“They properly retain that authority, and no one should read this order to suggest otherwise.”
