Republican Attorney General Kris Kobach late Friday night asked a federal judge to modify the terms of a 2019 consent agreement so it would 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.
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, Democratic Gov. Laura Kelly’s administration negotiated a deal that reversed the previous policy and allowed those gender markers to be changed.
But Kobach’s office argued in a federal court filing 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 starts July 1.
The law – named 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 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 relevant statutory law and case law have changed significantly since the judgment in this case was issued four years ago,” Deputy Chief Attorney General Dan Burrows wrote in a brief arguing for the consent order to be modified.
“It is impossible for defendants to comply with both SB 180 and the consent judgment,” Burrows argued.
“The consent Judgment requires defendants to issue birth certificates that state a person’s sex as something other than the one he or she was born into,” he wrote. “The bill prohibits this practice. That is enough to warrant modification.”
The filing adds, “Defendants may have been free to enter into a stipulated judgment allowing them to issue non-conforming birth certificates four years ago, in the absence of any definitive legislative statement on the matter.
“But now that the legislature has spoken, the agency is bound to execute the law as written. The court should therefore modify the consent judgment accordingly.”
Burrow argues in other judges in other jurisdictions have found that refusing to allow birth certificates to be modified doesn’t violate the constitution.
He pointed out that a federal judge from Kansas presiding over an Oklahoma case found that state’s refusal to amend birth certificates to reflect gender identity does not violate
the constitution.
“In short, the legal underpinning of the Consent Judgment has eroded in the
intervening four years,” Burrows argued.
“This shift in the case law is an additional reason to modify the judgment.”
Burrows brief notes that the attorney general is only seeking to modify portions of the consent agreement that are prospective in nature.
Shortly after midnight Saturday, the American Civil Liberties Union of Kansas criticized Kobach’s action.
“No matter how much Attorney General Kobach and extremists in our state legislature may wish to, they cannot erase the fundamental protections the constitution guarantees to every single LGBTQ+ Kansan,” said Micah Kubic, the ACLU’s executive director.
“Mr. Kobach should rethink the wisdom—and the sheer indecency—of this attempt to weaponize his office’s authority to attack transgender Kansans just trying to live their lives,” Kubic said.
Under the consent order, the state was permanently blocked from enforcing the birth certificate policy “and shall provide certified copies of birth certificates to transgender individuals that accurately reflect their sex, consistent with their gender identity” without disclosing an individual’s transgender status on the document.
The consent order cited previous court decisions finding that similar birth certificate policies were unconstitutional.
It cited a 2018 case from Idaho where a court found the state “violated the Equal Protection Clause by failing to provide an avenue for transgender people to amend the sex listed on their birth certificates.”
It also pointed to another case from Puerto Rico that cleared the way for transgender people to seek birth certificates reflecting their gender identity.
Several years before the consent order, former Gov. Sam Brownback’s administration adopted a policy barring transgender people from making anything more than a “minor change” to their birth certificates without a court order.
The state’s policy only allowed someone to change the document if the person or their parents could show that the gender wasn’t correctly recorded at birth. The state didn’t consider gender identity a minor change.
At the time, state health department officials said the old policy allowing amended birth certificates deviated from state law.
They said the new policy stemmed from a 2002 state Supreme Court decision on the legality of a transgender woman’s marriage to a man in a dispute over the man’s estate.
The court found that the marriage wasn’t legal because of the state’s ban on same-sex marriage.
The state believed the ruling meant a person couldn’t change their gender at birth and consequently couldn’t revise their birth certificate unless a significant mistake was made on the document.
The plaintiffs who brought the orginal lawsuit were represented by the team of Lambda Legal Defense and Education Fund.
The group vowed a vigorous defense of the consent order, calling the action a “gimmick.”
“We wholeheartedly oppose and strongly repudiate this attempt by Kansas Attorney General Kris Kobach to roll back a mutually agreed-upon judgment that recognized the unconstitutionality of Kansas’s former birth certificate policy,” said Omar Gonzalez-Pagan, who served as lead counsel for Lambda Legal in the Kansas case.
“SB 180, while misguided and discriminatory, does not conflict with the Consent Judgment approved by the Court in 2019.
“And even if it did, SB 180 does not present a sufficient basis for the State of Kansas to escape their obligations under a federal judgment. We have a supremacy clause for a reason,” he said.
