(UPDATED to include comments from House speaker, Senate president and top House and Senate Democrats and ACLU executive director and the president of Kansas Family Voice)
Kansas Attorney General Kris Kobach is urging lawmakers to convene a special legislative session to keep the courts from allowing transgender Kansans to change their gender markers on driver’s licenses.
Senate President Ty Masterson and House Speaker Dan Hawkins sent identical letters to their caucuses late Wednesday night, relaying that Kobach was “urgently” requesting a special session to tweak a 2023 law, known as SB 180 or the “Women’s Bill of Rights.”
The letter obtained by the Sunflower State Journal said that Kobach believed the issue was “even more important” than redistricting. A spokesperson for Kobach could not immediately comment Thursday morning.
House Speaker Dan Hawkins and Senate President Ty Mastertson signaled that the Legislature would not let the court’s ruling go without attention.
“The Kansas Supreme Court may not be able to decide that a girl is a girl but we know where the people of Kansas stand on this issue and we will act,” Hawkins said in a statement.
Rep. Brandon Woodard, the top Democrat in the House, said a call for a special session was out of line.
“The Courts made their decision and now the unbalanced Republican supermajority is abusing their power to call another special session that will cost hundreds of thousands of Kansas tax dollars because the attorney general lost in court on a fabricated issue,” Woodard said in a statement.
Earlier this week, the Kansas Supreme Court upheld an appeals court decision that allowed transgender Kansans to change their gender markers on driver’s licenses while an ongoing lawsuit plays out.
A Shawnee County district judge had issued a temporary injunction blocking the gender marker changes but was overturned when the case was appealed.
On Monday, the Supreme Court denied a request to take up the case and allowed the state appeals court ruling to stand.
The appeals court’s decision had cleared the way for the Department of Revenue to allow gender marker changes while the overall litigation played out.
No gender marker changes were immediately allowed while the appeal was underway, but that’s expected to change with the Supreme Court opinion.
The appeals court sent the case back to the district court and ordered that a new judge be appointed since Judge Teresa Watson had revealed her opinion on the merits of the case.
The letter sent to lawmakers said the Supreme Court took an “audacious step” by not agreeing to hear the case.
“Because the Kansas Supreme Court has denied review, the radical decision of the
Kansas Court of Appeals will stand, and the district court will be forced to lift its temporary injunction stopping the changing of driver’s licenses,” the letter said.
“The lifting of the injunction will occur relatively soon, and it is almost certain that it will happen before the end of November.
“Attorney General Kobach would like the Legislature, in special session, to add a few words to SB 180 that will prevent the courts from thwarting the will of the Legislature and thereby prevent a flood of individuals seeking to change their driver’s licenses.”
The letter didn’t specify the exact changes and how that would prevent the courts from “thwarting the will” of the Legislature.
Micah Kubic, executive director of the American Civil Liberties Union of Kansas, accused Kobach of trying to do an end-around the Kansas courts.
“Rather than accepting the decisions of the two highest courts in our state, Mr. Kobach is resorting to backroom attempts to change the law and shut the courts out of our government so he can have full, unchecked power,” Kubic said.
“This is, simply put, a power grab by the attorney general that goes beyond his baseline of cheap political theater and wasteful litigation,” Kubic said.
“The attorney general has now mixed poor sportsmanship over his recent losses with a stubbornly extremist and discriminatory agenda and made an attempt to change the law that threatens not just the privacy and agency of all Kansans but also the very checks and balances of our state government.”
Kobach’s request for a special session could further fuel efforts to hold a special legislative session to draw new election boundaries for members of Congress with a goal of drawing a map that would not be politically favorable to Democratic U.S. Rep. Sharice Davids.
Dinah Sykes of Lenexa, the top Democrat in the Senate, said the timing of a call for a special session was suspect.
“The timing of this urgent request for a change to a law that has been on the books for over two years is highly suspicious,” Sykes said in statement.
“It’s as though the idea of mid-decade redistricting isn’t generating enough momentum amongst the people of Kansas – because Kansans aren’t asking for a new map – so Republicans needed to return to a divisive social issue that they know will drum up outrage,” she said.
Masterson said he thought Kobach’s concerns had merit. He also thought that the driver’s license issue and redistricting could be handled at the same time during a special session.
“AG Kobach’s letter raises serious and timely concerns that a special session needs to address,” Masterson said in a statement.
“We can’t allow a narrow radical ideology the ability to alter basic concrete facts on documents with vital statistics,” he said.
“Should a special session be called, we can certainly handle both.”
Brittany Jones, president of Kansas Family Voice, called for action.
“This needs to be corrected immediately,” Jones said of the ruling.
“I agree with the attorney general and House and Senate leadership’s call for a special session to ensure that women’s and girls’ spaces are protected and ensure that our documents are accurate and useful for their purpose,” she said.
The Legislature needs two-thirds of its members – 27 in the Senate and 84 in the House – to call itself into a special session. Only once in Kansas history has the Legislature called itself into a special session, and that was in 2021 to battle federal health mandates.
Last week, Republican House members were given the opportunity at a retreat to sign a petition calling for a special session, but it was unclear how many signed the petition.
How much support there is for a special session in the House has been murky at best, although the chamber is believed to be cooler on the idea than the Senate.
There is a view that coupling redistricting with the driver’s license issue could help muster support for a special session.
Some Republican members of the House have been worried about how redrawing election maps would affect efforts to pass a constitutional amendment calling for judicial elections next year if it appears the GOP is trying to take a strong hold on the government.
There’s also concern about the potential fallout for Republicans in suburban Johnson County, which would most likely be carved up between two or three congressional districts in any new plan that might be approved.
And there’s concern whether a new map would be approved by the state Supreme Court, where the makeup has changed after it upheld a new map in 2022.
However, it is very possible that a special session to address the Women’s Bill of Rights might help boost the chances of getting enough signatures for a session that would address redistricting and the gender marker changes.
The bill creating the Women’s Bill of Rights passed a veto override with 84 votes in the House and 28 in the Senate.
The 2023 law – known as SB 180 – required 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 issued a legal opinion that said the law 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.
Kobach said the new law required birth certificates and driver’s licenses to show someone’s sex assigned at birth.
Kobach took the Kelly’s administration to court when it refused to change a policy for allowing transgender Kansans to change their gender markers on driver’s licenses.
