Democratic Gov. Laura Kelly chides Republican Attorney General Kris Kobach in a new legal filing, saying his characterization of a person’s true sex as “claimed ‘gender identity’” “promotes discrimination and violence” against transgender Kansans.
Kelly’s upbraiding of Kobach was in a new friend-of-the-court brief filed in federal court where the attorney general is asking a judge to modify the terms of a consent order to keep transgender people from correcting their gender marker on their birth certificates.
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.
Kobach argues that it’s impossible to enforce that consent order after the Legislature enacted a law establishing that an individual’s sex means their biological sex – either male or female – at birth. The law started July 1.
The governor is asking a federal judge to accept her brief opposing Kobach’s efforts. The brief, separate from any response that is expected to be filed by the plaintiffs in the case, was filed in federal court on Wednesday.
The governor’s brief is separate from Kobach’s ongoing lawsuit to stop the Kelly administration from allowing transgender Kansans from changing their gender markers on driver’s licenses, a policy already blocked by a Shawnee County district judged.
The brief in the birth certificate case in federal court reflects some of the governor’s most pointed remarks to date on the overall policy issue that has been dominating news coming out of the capital in recent days.
“This case is about Kansas continuing to protect the constitutional rights of transgender
individuals from discrimination,” Kelly argued.
In the brief, Kelly called the law – SB 180 – and the attorney general’s interpretation of the statute “discriminatory.”
“The attorney general’s broad interpretation of Senate Bill 180 and characterization of a
person’s true sex as ‘claimed “gender identity”‘ is nothing but a political grandstanding that
promotes discrimination and violence against the transgender community,” the governor argues in the brief.
Alluding to the Brown v. Board of Education mural on the third floor of the Capitol, Kelly invoked the landmark U.S. Supreme Court desegregation case in arguing against the attorney general’s effort to dissolve the consent judgment.
“All Kansans — whether male or female, cisgender or transgender — have a right to equal treatment in the provision of state government services,” including providing copies of vital records such as birth certificates, the brief argues.
“Someone needing a birth certificate should not be treated differently because of the value judgments of others,” Kelly contended.
A spokesperson for the attorney general couldn’t immediately respond to the governor’s brief.
In her brief, Kelly noted that former Attorney General Derek Schmidt declined to represent the state health department in the lawsuit four years ago because Kelly’s election would mean a change in the birth certificate policy.
“Now, the Kansas attorney general, new in office and not previously having been involved with this case, seeks relief from this court from the parties’ consent judgment based on alleged changed circumstances.”
“The attorney general was not involved in the representation or settlement of this matter in 2019, and now four years later…the attorney general has entered an appearance” for the Kansas Department of Health and Environment.
“This belated change in representation comes with a change in position, contrary to KDHE’s understanding of the effect of Senate Bill 180 on their operations,” the governor argued in the brief.
The governor says that the new law – named the Women’s Bill of Rights – does not address discrimination issues that the consent judgment was trying fix. She argued that the law only worsened the discrimination.
“It is hard to fathom how legislation that made the discrimination worse, not better, warrants relief from the consent judgment,” the governor said.
“Senate Bill 180 does not fix the discrimination in the birth certificate policy that led to the consent judgment,” the governor said.
“Senate Bill 180, at least according to the attorney general’s reading of it, makes the discrimination worse, not better.
“Senate Bill 180 is not a changed circumstance justifying relief from the consent judgment in this case; rather, it represents a willful failure of the Kansas Legislature to protect the rights of Kansans, which of course, includes transgender Kansans.”
