Gov. Laura Kelly’s administration lost a round in court Wednesday to reinstate a policy allowing transgender Kansans to change their gender markers on driver’s licenses.
Judge Teresa Watson denied the state’s request to dissolve her temporary restraining order, which was issued on Monday without a hearing or input from the state.
Watson didn’t rule on the larger issue of issuing a temporary injunction, although her opinion provides a sense of where the judge is on the issue going forward.
Watson ruled that allowing the state to continue to allow driver’s licenses to be modified posed an “immediate and irreparable injury.”
She said the harm is supported by the fact that there were 172 requests to change the gender markers on the driver’s licenses in June alone.
Republican Attorney General Kris Kobach went to court to stop the state from allowing gender marker changes despite a new state law establishing an individual’s sex as their biological sex at birth.
The new law – known as SB 180 – requires any state agency, school district or local government that collects vital statistics for public health, crime, economics or other topics to identify each individual as either a male or female at birth.
Kobach believes the new law requires birth certificates and driver’s licenses to show someone’s sex assigned at birth.
The lawsuit only deals with driver’s licenses. Kobach is trying to dissolve a consent judgment in federal court that requires the state to allow transgender Kansans to change their gender markers on birth certificates.
Kobach argued in court that a mere violation of the statute presented irreparable harm.
Further, he argued that law enforcement would be harmed if the new law wasn’t enforced.
He contended that because driver’s licenses are in circulation for up to six years, there would be illegally issued documents that could not be recovered.
Further, Kobach said the inability to enforce the new law could create problems for authorities identifying suspects and serving warrants.
Kobach said he could present affidavits from county law enforcement officials who could testify to those issues.
“There is no question,” Kobach said, “that our law enforcement entities are experiencing an issue and already have experienced an issue with the several hundred driver’s licenses that have already been changed.”
The Department of Revenue, which oversees driver’s licenses, argued that Kobach failed to demonstrate any actual injury that would be suffered by law enforcement by allowing gender markers to be changed.
“Associated gender marker on the credential is the better, safer method for assisting law enforcement to connect the credential with the person before them.
“Having accurate and consistent gender markers on IDs will help law enforcement appropriately identify people. This will also assist with accurate identification for public services/resources.”
The Kelly administration had also argued that the new law – known as the Women’s Bill of Rights – was superseded by state statutes regulating driver’s licenses.
They contended that the law didn’t address driver’s licenses so it should not be applied to gender marker changes on the document.
However, Watson found that SB 180 applied to “any” state law, rule or regulation.
“The phrase ‘any state law’ makes clear that the provisions of SB 180 apply to the driver’s license statutes at issue here,” Watson wrote.
She also rejected the administration’s claim that SB 180 didn’t apply because it addressed “sex” and not “gender” and the two weren’t interchangeable.
But she said that argument was weakened by the fact that the state displays a driver’s gender as “sex” on the actual driver’s license.
The American Civil Liberties Union, which is seeking to intervene in the case on behalf of five transgender Kansans, called Watson’s ruling “disappointing.”
The ACLU said the ruling “undoubtedly leaves transgender Kansans in fear,” but that the restraining order is in effect until fuller arguments are heard.
“We will continue to fight for transgender Kansans’ right to have identification that reflects who they are, and that fight is far from over.”
