Attorneys battle over request for transgender Kansans to intervene in driver’s license lawsuit

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Kobach wants judge to reject motion; ACLU supports their right to take part in case

TOPEKA — A Shawnee County District Court judge said Wednesday she would quickly respond to a request by transgender Kansans to intervene in a lawsuit filed by Attorney General Kris Kobach seeking affirmation of his belief a new state law required driver’s licenses to reflect a person’s sex assigned at birth.

District Judge Theresa Watson presided at a hearing in which the Kansas Department of Revenue, the defendant in Kobach’s suit; ACLU attorney Sharon Brett, who represented the five transgender individuals; and Tony Powell, the solicitor for the attorney general; fleshed out arguments made in written legal briefs.

The revenue department’s lawyer, Pedro Irigonegaray, said the agency wasn’t representing any private citizens in the lawsuit brought by Kobach. Brett said her clients deserved to be heard by the district court weighing possible violation of their constitutional rights.

And, Powell said the judge shouldn’t allow interveners to intrude upon Kobach’s simple request for interpretation of state law guiding sex designations on Kansas driver’s licenses.

During the hearing, Watson posed questions suggesting skepticism transgender persons had a right to have a seat in the courtroom. She indicated consenting to their request might delay resolution of the attorney general’s suit.

“I’m going to issue a written opinion in a day or so,” Watson said.

The judge issued in July an temporary restraining order directing the revenue department to cease amending the sex designation on driver’s licenses pending outcome of the lawsuit. She also set a Nov. 1 hearing on Kobach’s request for an injunction against the Department of Revenue.

After the hearing, Kobach said it would be “very unusual” for a district court to permit private citizens to insert themselves in a case in which one portion of the executive branch was suing another segment of the executive branch of state government.

He preferred the district court stick to the fundamental question of how driver’s licenses would be handled and set aside constitutional issues for a separate proceeding.

“”The notion that they’re being silenced is ridiculous thinking. We are happy to answer their constitutional claims,” Kobach said. “It’s just that procedurally, those should follow the determination of what the statute means. If the court were to agree with our interpretation of the statute, then at that point our posture shifts slightly and we are defending the Department of Revenue against the constitutional claims made by the interveners,”

Kobach said if Watson ruled in his favor regarding interpretation Senate Bill 180 adopted by the 2023 Legislature it would mean the Department of Revenue would no longer produce driver’s licenses with a sex marker different than what was designated at birth.

Brett, legal director of the ACLU of Kansas, said law and precedent should allow her five transgender clients to take part in the district court’s consideration of what was meant when the Legislature adopted the law implemented July 1. She said the statute ordered the revenue department to track vital statistics related to driver’s licenses, but didn’t forbid the agency from continuing a policy allowing people to amend sex markers on state-issued identification.

“The state is saying we don’t have a right to intervene and that we should just get to challenge their interpretation in a later-filed lawsuit somewhere down the line,” Brett said. “They clearly don’t want the proposed interveners’ arguments to be heard in this action and would rather secure the ruling that they’re seeking without having to contend with the constitutional implications.”

She said a decision discontinuing the practice of changing sex identifiers on driver’s licenses would undermine constitutional rights of transgender Kansans.

“If granted,” Brett said, “that relief will violate their constitutional rights. They would suffer harm.”

Powell, the solicitor general of Kansas and a former Sedgwick County District Court judge, said the attorney general rightly opposed intervention. He said a court finding about meaning of the state law shouldn’t be impeded by premature constitutional objections.

“We don’t think the statute is ambiguous or unconstitutional,” Powell said. “It’s too soon. Their claims, that appear to be constitutional claims, are not ripe. This is a matter of when and what’s proper.”

Kobach filed the lawsuit against two administrators in the Department of Revenue after Gov. Laura Kelly said the law didn’t prohibit Kansans from having driver’s licenses changed to define them as male or female even if that conflicted with sex assignments at birth. The Democratic governor vetoed that bill, but the Republican-led House and Senate overrode the governor.

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: Follow Kansas Reflector on Facebook and Twitter.

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