Conservative attorney general sought to limit gender markers to declarations at birth
TOPEKA — A federal judge granted Attorney General Kris Kobach’s request Thursday to significantly undermine provisions of a 2019 consent judgment granting transgender individuals born in Kansas the right to amend birth certificates to match their gender identities.
Kobach sought the U.S. District Court’s intervention after the Kansas Legislature approved a law defining women and men by biological sex and requiring state agencies to collect health data identifying people as either male or female consistent with that determination at birth. Impetus for the statute was a movement to prevent transgender people from using restrooms, locker rooms and other facilities based on an identity in conflict with their biological sex at birth.
While transgender Kansans considered the statute imposed in July to be harassment, the attorney general argued Senate Bill 180 enabled the court to end the Kansas Department of Health and Environment’s practice of correcting gender markers on birth certificates. Gov. Laura Kelly, a Democrat, opposed the law and objected to Kobach’s legal analysis.
“As long as I am attorney general, the laws of Kansas will be enforced as written,” Kobach said. “The Legislature decided that birth certificates must reflect biological reality, and they were quite clear in how they wrote the law. Today’s decision is a rejection of the activists’ and Governor Kelly’s attempt to twist the English language beyond recognition. The court has told the governor what the law clearly means. We now expect the governor to follow the law and cease changing birth certificates to something other than biological sex at birth.”
Four years ago, Lambda Legal, along with the Bryan Cave Leighton Paisner law firm, represented four transgender people who were unable to obtain birth certificates consistent with their gender identity. That negotiated agreement of that lawsuit set aside Kansas’ discriminatory birth certificate policy and allowed hundreds of people to modify the key identification document.
Omar Gonzalez-Pagan, counsel and health care strategist at Lambda Legal, said Kobach’s interpretation of Senate Bill 180 was as unlawful as the Kansas administrative policy on birth certificates that was challenged by the 2018 lawsuit.
“We are disappointed that the court has saw fit to reopen the consent judgment, which has been in place for four years and operated without incident,” he said. “Let us be clear, however, today’s decision does not approve of SB180, as interpreted by the Kansas attorney general, but simply holds that the circumstances have changed. Indeed, the court went to great lengths to specify that it was not opining on SB 180’s constitutionality.”
Gonzalez-Pagan said an individual’s access to accurate personal documents was vital because lack of accurate identification placed transgender people at peril of discrimination, harassment and violence. A lawsuit challenging the state law could emerge from this court battle.
“We will evaluate next steps to determine how best to continue to secure the right of transgender Kansans to have identity documents consistent with who they are,” Gonzalez-Pagan said.
Under the original consent judgment, the federal court ordered the state Department of Health and Environment and other Kansas government officials to provide birth certificates that reflected sex consistent with gender identity. The order noted the state’s previous policy prohibiting gender marker corrections to birth certificates violated the equal protection clause and the due process clause of the Fourteenth Amendment.
The Republican-led Legislature responded earlier this year with Senate Bill 180. Kelly vetoed the bill, but the Legislature overrode the governor.
In June, Kobach filed a motion in federal court to nullify the 2019 consent judgement. He said the original order conflicted with the new state law requiring state agencies to collect statistics based on a person’s sex assigned at birth.
The governor and attorneys for the original plaintiffs argued the 2023 law didn’t conflict with the consent judgment because state agencies could gather vital statistics in accordance with the statute and continue to issue modified birth certificates.
In wake of the attorney general’s effort to undo the consent order, Kansas ACLU executive director Micah Kubic said Kobach ought to rethink the “sheer indecency of this attempt to weaponize his office’s authority to attack transgender Kansans just trying to live their lives.”
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