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Kobach alleges ‘wobbly’ claims by rivals in Kansas birth-certificate fight an invitation to tyranny

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GOP attorney general wants transgender Kansans to stop modifying records

TOPEKA — Attorney General Kris Kobach asserted in a new legal filing that a federal district court order issued in wake of a 2018 lawsuit brought by transgender Kansans didn’t render unconstitutional a new Kansas law requiring birth certificates to reflect a person’s gender at birth.

Kobach, the Republican who took office in January, has launched a legal battle to set aside a four-year-old consent judgment in favor of five plaintiffs who sued Kansas Department of Health and Environment alleging their equal protection and due process rights under the U.S. Constitution were violated by state policy barring transgender people from obtaining amended birth certificates consistent with gender identity.

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The attorney general said those plaintiffs failed to acknowledge black-letter law in Senate Bill 180 that since July 1 directed state agencies, departments, offices or political subdivisions to gather accurate public health data identifying individuals as either male or female at birth.

“That failure leads them to make wobbly arguments premised on an unsound assertion — namely that a state policy requiring birth certificates to reflect a person’s biological sex, rather than some felt gender identity, is unconstitutional,” Kobach’s brief said.

Kobach urged the federal court to address constitutionality of a law directing government entities to officially record a person’s biological sex at birth. Conflicts regarding the law ought to be examined through a crucible of litigation rather than the consent judgment, the attorney general said.

Tyranny, abstract thought

Kobach turned to the U.S. District Court in a bid to dissolve the 2019 consent judgment so practices in Kansas conformed to his analysis of the new state law.

“To hold otherwise would be to render state governments vessels of the federal courts, forever beholden to unchangeable consent agreements entered into by long-gone public officials,” Kobach’s brief said. “The court should modify the judgment, allow the Legislature to exercise its customary powers and let any constitutional challenge run through the normal judicial process.”

The original plaintiffs, as well as Democratic Gov. Laura Kelly, filed documents asserting Kobach failed to correctly integrate the new state statute with the federal court order.

Kobach said in rebuttal the reasoning of plaintiffs and the governor would transform Kansas birth certificates into an “abstract document that is created anew each time a person requests it.”

In addition, he argued the plaintiffs’ attempt to be viewed as perpetual guardians of the rights of Kansans in terms of sex identification on birth certificates was “explicitly anti-democratic.”

“They use the mere fact of increased legislative interest in transgender issues across the country as grounds to argue that the Kansas Legislature should not be allowed to have an opinion on any such issue ever again,” the attorney general’s brief said. “That argument is an invitation to tyranny.”

Plaintiffs’ perspective

Plaintiffs in the original lawsuit, including Nyla Foster, Luc Bensimon and Jessica Hicklin, said in their recent federal court brief the 2019 consent agreement was binding on defendants in that lawsuit and people such as Kobach and Kelly subsequently made responsible for enforcing state law on birth certificates.

Language inserted into that negotiated consent decree prevented government officials from using the state’s powers to “perpetuate discrimination against vulnerable and discrete minorities like transgender people,” the plaintiffs said.

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“The mere enactment of a state law resurrecting the very policy found to be unconstitutional under the consent judgment does not make compliance with the consent judgment legally impermissible,” the plaintiffs’ brief said. “Rather, it shows that the consent judgment is operating just as it was intended to operate, by preventing the perpetuation of an unconstitutional policy violating the rights of transgender people born in Kansas.”

Kelly voted Senate Bill 180, but was overridden by the House and Senate. She said the bill wasn’t born of thoughtful deliberation among policymakers in Kansas, but was a copy-and-paste regurgitation of model legislation advocated by the Women’s Liberation Front, Independent Women’s Voice and Independent Women’s Law Center, all of Washington, D.C.

‘Cannot make up facts’

Kelly’s legal counsel submitted an amicus brief in support of the plaintiffs that argued Senate Bill 180 was discriminatory and a “willful failure of the Kansas Legislature to protect the rights of Kansans, which of course, includes transgender Kansans.”

“While the Kansas Legislature’s role is to make law, it cannot make up facts. Scientific evidence supports the recognition of transgender and gender-diverse Kansans,” the governor’s brief said.

“Senate Bill 180 does not fix the discrimination in the birth certificate policy that led to the consent judgment,” the governor’s counsel said. “Senate Bill 180, at least according to the attorney general’s reading of it, makes the discrimination worse — not better.”

Kelly directed KDHE to keep in place policy allowing for amendment of gender markers on birth certificates. She said KDHE would, unless ordered by a court to do otherwise, follow Senate Bill 180 based on an interpretation of that law requiring the state to maintain a data set identifying individuals as male or female at birth.

The governor’s brief says the state law touted by Kobach didn’t prohibit subsequent reidentification of a sex marker on Kansas birth certificates. Plain language of the bill didn’t require a person to “only” and “forever” be identified a certain way, the governor’s brief said.

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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