AG argues 2023 state law, 2019 court order create impermissible conflict
TOPEKA — A national civil rights organization focused on LGBTQ+ issues waded into a federal-court campaign by Attorney General Kris Kobach to unravel a 2019 consent order guaranteeing transgender individuals could change gender markers on their Kansas birth certificates.
Attorneys with the Lambda Legal Defense and Education Fund responded to Kobach by requesting the U.S. District Court uphold a four-year-old order as it related to revision of birth certificates. The settlement under scrutiny applied to a lawsuit filed by transgender plaintiffs challenging Gov. Sam Brownback’s ban on gender refinements to certificates of birth.
“Permitting transgender Kansans to obtain accurate birth certificates consistent with their gender identity remains the main thrust of the consent judgment,” said Omar Gonzalez-Pagan, a Lambda Legal lawyer on the brief. “Simply put, the zealous desire of some state actors to perpetuate the very discriminatory policies this court has already found to be unconstitutional is not and cannot be a sufficient significant change in circumstances to warrant relief.”
Days before the anti-trans Senate Bill 180 took effect in Kansas, the attorney general urged U.S. District Judge Daniel Crabtree to set aside key provisions of the June 21, 2019, order accepted by the administration of Democratic Gov. Laura Kelly and the four transgender plaintiffs.
The federal decree was based on the court’s perspective that policies forbidding correction of birth certificates violated due process and equal protection clauses of the 14th Amendment to the U.S. Constitution.
Kobach argued the new state law required Kansas officials to document on birth certificates and driver’s licenses the biological sex of infants at birth. He said Crabtree’s order should be recalculated because the new statute mandated state officials operate in a way contrary to the federal judgment.
In fact, the Republican attorney general said the new state law made compliance with the federal order “legally impermissible.”
‘Answer is clearly no’
Attorneys with Lambda Legal countered that Kobach mistakenly believed federal court confirmation of unconstitutional practices could be superseded by enactment of a state law declaring those practices to be legal.
The 2019 federal order did state obligations of the consent judgment were binding upon state of Kansas defendants and any successor charged with enforcing laws regarding birth certificates.
“Such language was presciently necessary because, as is the case now, those intent on using the state’s powers to perpetuate discrimination against vulnerable and discrete minorities like transgender people do not give up easily,” the Lambda Legal attorneys said.
Lambda Legal asked in the brief whether Kobach’s theory meant a new Kansas statute, law, policy or practice could prohibit issuance within the state of marriage licenses to same-sex couples in violation of U.S. Supreme Court precedent. The same question was framed by Lambda Legal in context of the landmark segregation decision of the U.S. Supreme Court declaring separate-but-equal schools were unconstitutional.
“Is it Attorney General Kobach’s position that the judgment in Brown v. Board of Education of Topeka may be vacated simply because the Kansas Legislature has enacted a law instituting separate educational facilities based on race? The answer is clearly no,” the Lambda Legal lawyers said.
For the state attorney general to prevail, Lambda Legal said, a judge would have to enable unconstitutional intrusion into privacy, autonomy and free speech rights of transgender Kansans. Lambda Legal’s attorneys said Kobach was relying on two non-binding decisions from district courts outside Kansas and a handful of other state court decisions to defeat the consent order, but Lambda Legal contended the picture presented by Kobach was incomplete.
Lambda Legal said Kobach ignored evidence modification of the consent order would materially harm transgender Kansans, reinforce the political persecution of LGBTQ people and run counter to the public interest in shielding constitutional rights.
Foundation in 2018 suit
In October 2018, plaintiffs Nyla Foster, Luc Bensimon, Jessica Hicklin and C.K. as well as the Kansas Statewide Transgender Education Project filed suit contesting the Brownback policy barring transgender people from obtaining birth certificates that reflected their gender identity.
The plaintiffs’ argument was based on U.S. constitutional guarantees to equal protection under the law as well as the right to liberty, privacy and freedom of expression. After prolonged negotiations, the federal judge signed the consent judgment.
Senate Bill 180, enacted over Kelly’s veto, went into effect July 1. In advance of that date, Kobach issued an advisory opinion asserting the new state law required Kansas Department of Health and Environment to register applicants for birth certificates as either female or male at birth.
Kobach claimed the state law required the federal court to rescind the previous order on gender modification of birth certificates.
Kelly said her legal counsel didn’t interpret Senate Bill 180 to forbid changes to gender markers on birth certificates issued by KDHE or driver’s licenses produced by the Kansas Department of Revenue. A Shawnee County District Court judge issued a temporary order requested by Kobach that halted gender modifications to driver’s licenses pending further review.