Department of Revenue sought to lift order, extend services to transgender Kansans
TOPEKA — A Shawnee County District Court judge rejected Wednesday a request by a Kansas Department of Revenue lawyer to lift a temporary restraining order prohibiting the administration of Gov. Laura Kelly from issuing driver’s licenses amended to reflect gender marker changes for transgender individuals.
Judge Teresa Watson, who conducted a technology-plagued hearing by livestream, affirmed her decision to impose the restraining order to make certain the state agency abided by Senate Bill 180. The statute adopted over a veto by Kelly became law July 1, and Attorney General Kris Kobach contended the law superseded previous policy or law guiding the Department of Revenue’s handling of requests to modify gender markers on licenses to drive.
Watson sided with Kobach on preservation of the temporary injunction. Her order said issuance of driver’s licenses in conflict with state law represented an “immediate and irreparable injury” given the influx of 172 requests for gender reclassifications on driver’s licenses in June.
“Driver’s licenses are issued for a period of six years and are difficult to take back and out of circulation once issued,” Watson said. “Compliance with stated legal requirements for identifying license holders is a public safety concern.”
Motion to dissolve
Department of Revenue attorney Ted Smith urged Watson to dissolve the restraining order with the understanding the driver’s license division would continue to collect information on applicants’ gender status and biological sex at birth. He said a hold had been placed on gender adjustments to driver’s licenses.
He argued the new law inspired by an out-of-state conservative organization and embraced by GOP lawmakers in Kansas was generic and didn’t apply to issuance of driver’s licenses because there was a more specific statute on the books.
“Can you tell me why Senate Bill 180, which went into effect on July 1st, is not the status quo?” the judge asked Smith.
“Senate Bill 180 … basically doesn’t overwrite any existing driver’s license statutes,” Smith replied. “We have a more specific statute that deals with gender in the context of driver’s licenses. Senate Bill 180 doesn’t deal with driver’s licenses. Nowhere in that one-page bill does it reference driver’s licenses.”
“Doesn’t Senate Bill 180 say it applies to any state law?” the judge said. “And, wouldn’t it include driver’s license statutes?”
“Basically, that’s an implicit assumption, right?” Smith said. “It’s not specific to driver’s licenses. So, we’re always going to defer to the more specific statutes.”
Smith dismissed the nonbinding legal opinion issued by Kobach that asserted the law forbid gender changes to driver’s licenses and birth certificates.
“I don’t conflate his advisory opinion or interpretation of law to be equivalent to a specific statutory legal requirement,” Smith said. “And, I think there is a good faith and reasonable argument for our interpretation. We’re not bound, again, by the attorney general’s legal theories. We’re bound by the statutes.”
Violation of state law
Kobach said in court documents and in his oral remarks that it would be improper for the Shawnee County judge to allow the state to deflect a law requiring Kansas government agencies gathering vital statistics to document a person’s sex at birth as either male or female.
The Department of Revenue’s approach to driver’s licenses, which was endorsed by the governor’s office, amounted to violation of state law, Kobach said.
“Violation of the statute itself is an injury to the state,” the Republican attorney general said. “If a state’s statutes are being violated by a state agency or in any large-scale fashion then the state is injured.”
Kobach said controversy about implementation of the law aimed at transgender Kansans had arisen in Johnson County in terms of law enforcement’s ability to to its job. He said failure by the Department of Revenue to comply with the new law could impede identification of suspects or the issuance of search or arrest warrants.
He said allowing the Department of Revenue to decide which statutes it followed and which it sidestepped away from would defy intent of the Legislature, which was the authorizing authority for the state agency. It was common understanding, established by the Kansas Supreme Court, new law trumped old law on a subject, he said.
“The status quo is the position of the individuals affected by the law, not the agency’s process,” Kobach said. “SB180 contains the phrase, ‘notwithstanding any provision of state law to the contrary.’ Clearly, SB180 was drafted with the intent of sweeping aside any possible contrary language in any other Kansas statute.”
The livestreamed hearing had to be halted twice due to technology woes, including problems with the attorney general’s internet connection that resulted in garbling of about half of his spoken words. The initial portion of the livestream wasn’t broadcast to dozens of online viewers.
Kobach filed the lawsuit July 7 against two employees in the Department of Revenue. The judge responded with the restraining order Monday. In wake of that action, the Department of Revenue sought a hearing to argue for repeal of the order.
On Tuesday, the American Civil Liberties Union of Kansas filed a request to intervene in Kobach’s lawsuit on behalf of five transgender Kansans. No decision has been released regarding the ACLU motion.
Watson, an appointee of Republican Gov. Sam Brownback, instructed the attorney general’s office and the Department of Revenue lawyers to confer about scheduling the filing of documents and conducting a hearing on Kobach’s request for a temporary injunction in the case. If adopted by the judge, it would prevent the Department of Revenue from taking action central to the dispute before the conflict was resolved through a trial or settlement.
Kansas Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: info@kansasreflector.com. Follow Kansas Reflector on Facebook and Twitter.
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