(Updated to reflect that lawsuit only applies to driver’s licenses with new comments from the governor’s spokesperson, Senate president and chair of Equality Kansas.)
As promised, Republican Attorney General Kris Kobach on Friday took Democratic Gov. Laura Kelly’s administration to court over its refusal to change a policy for allowing transgender Kansans to change their gender markers on driver’s licenses.
Kobach filed a lawsuit in Shawnee County District Court on Friday, asking a judge to enforce a new state law that he believes requires birth certificates and driver’s licenses to show someone’s sex assigned at birth.
The lawsuit, brought against Department of Revenue and the Division of vehicles, only addresses driver’s licenses, not birth certificates.
“The governor cannot pick and choose which laws she will enforce and which laws she will ignore. Yet that is what she has done with respect to SB 180, which established our state’s Women’s Bill of Rights,” Kobach argued in the brief.
“That law expressly requires that documents such as driver’s licenses reflect biological sex…and not a person’s chosen ‘gender identity,'” he contended.
“But the governor announced she will not comply with the Women’s Bill of Rights and has instructed her subordinate agencies, including the Department of Revenue’s Division of Vehicles, to disregard it.”
The spokesperson for the governor said Kelly is following state law.
“While the attorney general has a well-documented record of wasteful and political lawsuits, Gov. Kelly is faithfully executing the laws of the state and has directed her administration to as well,” Brianna Johnson said in a statement.
“We look forward to the Kansas Department of Revenue being able to present its case in court,” Johnson said.
Tom Alonzo, state chair of Equality Kansas, said Kobach has already proven himself ineffective in lawsuits in the past, most notably on voting rights.
“It’s a waste of taxpayer dollars,” Alonzo said of the latest lawsuit. “Going after people already marginalized, I don’t know why other people are going along with this.”
Senate President Ty Masterson said he urged Kobach to bring the lawsuit.
“The governor is not above the law,” Masterson said in a statement.
“I had encouraged the attorney general to pursue aggressive action to ensure she does not abuse her power and upholds her constitutional obligations, so I am pleased to see him pursue this course of action,” Masterson said.
The governor announced last week that the Department of Revenue and the Department of Health and Environment would keep their existing policies in place for allowing gender markers to be changed regardless of a new state law passed by the Legislature.
In 2019, the state health department entered into the consent order ending a federal lawsuit that challenged the state’s previous birth certificate policy for transgender people as discriminatory.
Kobach has already asked a federal judge to modify the terms of the order so it would keep transgender people from correcting their gender marker on their birth certificates.
Kobach issued a legal opinion that said a new state law enacted this year required the state to reverse any driver’s licenses and birth certificates that were modified to reflect someone’s gender identity.
The law establishes that an individual’s sex means their biological sex – either male or female – 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.
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.
Kelly vetoed the bill but was eventually overridden by the Legislature, 84-40 in the House and 28-12 in the Senate.
Kobach’s nonbinding opinion only addressed driver’s licenses, birth certificates and the housing of females at the Topeka Correctional Facility.
The gender markers on more than 1,300 Kansas birth certificates and driver’s licenses have been changed since the state entered into a consent decree in 2019 allowing transgender people to correct their gender markers on those documents.
The state health department reported that 912 birth certificates have been changed from June 24, 2019 – the day the consent decree was announced – through June 26, 2023.
Meanwhile, the Department of Revenue reported 394 gender marker changes for driver’s licenses, including 161 this year.
Kobach said the Women’s Bill of Rights would require the state to restore any driver’s licenses and birth certificates that were modified to reflect someone’s gender identity.
He said the modified driver’s license wouldn’t have to be surrendered, although any future license would show their biological sex at birth.
Likewise for a birth certificate, if the state health department has modified the document to list a sex other than someone’s biological sex at birth, the new law requires the paperwork to be restored to its original form, he said.
The current birth certificate would not have to be surrendered, although future documents would show their biological sex at birth, he said.
“In the words of John Adams, we have ‘a government of laws, and not of men,'” Kobach argued in his brief.
“The Legislature makes the law, and the executive branch — including the governor
and her subordinates — must execute it, whether they like the law or not.
“She does not possess the power that English monarchs claimed prior to the ‘Glorious
Revolution’ of 1688, namely, the power to suspend the operation of statutes.”
The Kelly administration does not believe the law is retroactive, adding that it would potentially be impossible for the agencies to comply with the attorney general’s opinion because of a lack of complete data.
For instance, the state health department does not track whether a previous change to a birth certificate was made due to an administrative error or because an individual requested the change.
Also, if a transgender individual moved to Kansas from out of state and has already changed their documents to reflect their gender identity, the agencies will not know if their sex at birth differs from what is reflected on their documents.
