(Updated with comments from Kobach, governor and the ACLU)
A state appeals court panel on Friday gave Gov. Laura Kelly’s administration the go-ahead to allow transgender Kansans to change their gender markers on driver’s licenses while a legal battle plays out in court.
The appeals court reversed Shawnee County District Judge Teresa Watson’s decision to issue a temporary injunction in a legal dispute over a 2023 law that the attorney general said requires birth certificates and driver’s licenses to show sex assigned at birth.
The decision allows the Department of Revenue to allow gender marker changes while the overall litigation plays out. No gender marker changes will be be allowed while the appeal of Friday’s decision plays out.
The court sent the case back to the district court and ordered that a new judge be appointed since Watson had revealed her opinion on the merits of the case. The appeals court found Watson’s ruling was an “abuse of discretion.”
The court’s ruling drew a sharp reaction from Attorney General Kris Kobach, who strenuously objected to the court ordering Watson to step aside from the case.
He promised an appeal to the Kansas Supreme Court. He wants the court to hear the appeal on an expedited basis.
“The Court of Appeals opinion contains multiple factual errors, and its legal analysis is deeply flawed. In a case of such importance to the public, one would expect the Court of Appeals to be more careful,” Kobach said in statement.
“In addition, the Court improperly attempts to strip jurisdiction over the case away from the district court judge—which is highly unusual,” he said.
The governor took a low-key approach in reacting to the decision.
“I am glad the Kansas Department of Revenue can resume issuing credentials that align with the law,” the governor said in a statement.
Kobach took the Kelly administration to court in 2023 when it refused to change a policy for allowing transgender Kansans to change their gender markers on driver’s licenses.
Watson granted Kobach’s request for the injunction, ruling that a new law called the Women’s Bill of Rights required the sex designation on driver’s licenses to reflect someone’s biological sex at birth.
She found that the threat of injury to the state should take precedence over any harm the injunction would have on the five transgender Kansans who intervened in the case.
However, the three judges on the Court of Appeals – Karen Arnold-Burger, Sarah Warner and Stephen Hill – disagreed.
The court found that the attorney general failed to establish irreparable harm to support the case for a temporary injunction and failed to show a substantial likelihood that he would prevail on the merits of the case.
Further, the court found that Watson erred in issuing the injunction by concluding, without any support, that the mere fact that Kobach alleged a violation of state law meant he had established irreparable harm to support her decision.
“The problem with the district court’s finding is that the AG presented no evidence to
support this claimed injury beyond unsubstantiated speculation,” the court ruled.
“Because of the district court’s abuse of discretion, the (Department of Revenue) has been unable to issue reclassifications of gender designations on Kansas driver’s licenses for two years while this litigation languished,” Arnold-Burger wrote on behalf of the court.
D.C. Hiegert, Civil Liberties Legal Fellow for the ACLU of Kansas, said the ruling demonstrated that the Kobach failed to show any harm at all in allowing transgender Kansans to change their gender markers on a driver’s licenses.
“Being required to use a license with the wrong gender marker has already meant that transgender Kansans have been outed against their consent in their daily lives,” Hiegert said.
Kobach issued a legal opinion in 2023 that said that the Women’s Bill of Rights required the state to reverse any driver’s licenses and birth certificates that were modified to reflect someone’s gender identity.
The law established that an individual’s sex means their biological sex – either male or female – at birth.
The new law – known as SB 180 – required any state agency, school district or local government that collected vital statistics for public health, crime, economics or other topics to identify each individual as either a male or female at birth.
Kobach sued the Department Revenue and the Division of Motor Vehicles when it refused to change the policy for allowing transgender Kansans to change their gender markers on driver’s licenses.
Kobach argued in court that a mere violation of the statute presented irreparable harm. He also said law enforcement would be hurt if the new law wasn’t enforced.
Kobach said the inability to enforce the new law could create problems for authorities identifying suspects and serving warrants.
He said that because driver’s licenses are in circulation for up to six years, there would be illegally issued documents that could not be recovered.
Watson agreed, saying the threat of irreparable injury to the state outweighs any harm the injunction would cause the plaintiffs who intervened in the lawsuit.
But the court questioned Kobach’s claims about how law enforcement would be impeded if the new law wasn’t enforced.
From 2011 to 2022, the state issued 9.3 million licenses and during that same time frame, roughly 380 drivers – or .0004% of driver’s licenses issued – had their sex designation on the front of their licenses changed, according to the court ruling.
“The AG was not able to come up with a single incident in which a person who had the sex designation on their physical driver’s license changed evaded arrest, posed a danger to a law enforcement officer, or was not housed appropriately in jail,” the court ruled.
“In fact, in at least the preceding 16 years, no law enforcement officer complained to the (Department of Revenue) about any problems that have resulted from the changing of the
sex designation,” the court wrote.
During oral arguments, the court pressed the state’s top appellate lawyer – Anthony Powell – on how Kansas would have suffered irreparable harm by allowing transgender Kansans to change their gender markers on driver’s licenses.
“What’s the urgency that should require that a court intervene and say, ‘Whoa, stop. We’re going to let the state’s interpretation rule before we’ve had a full hearing on this issue,'” Arnold-Burger asked Powell during oral arguments.
Powell said the new law – passed in 2023 with a two-thirds majority over the veto of the governor – “set the new reality.”
“The real argument here is we have a clear and unambiguous statement from the Legislature…that this is how you define a man and a woman, this is how you define sex and that’s synonymous with gender ” Powell said.
“It’s a clear directive, it’s unambiguous and the Department of Revenue has the obligation to follow it. That’s crux of the issue here,” he said. “For this court not to uphold the district court’s injunction…is to say, “We’re going to allow the lawlessness to continue.’
“I think that’s wrong,” he said.
Powell said language in the statute indicates that the Legislature wanted to cut a broad swath when it defined “sex” as an individual’s biological sex at birth when it passed SB180.
“I think that is supportive of our argument that wherever sex appears – and in this instance where gender is synonymous with sex – you have to use the biological term of sex from birth as defined in Senate Bill 180,” he said.
