TOPEKA — The state solicitor general told an appeals court panel Monday that transgender people don’t have to get a driver’s license if they don’t like being forced to use a gender marker that conflicts with their identity.
The Kansas Court of Appeals is considering arguments over legislation passed in 2023 that requires vital statistics to recognize a person’s biological sex at birth. Attorney General Kris Kobach sued the Kansas Department of Revenue for continuing to allow transgender residents to be identified by their gender on their driver’s license, as the office had done for 17 years.
Arguments in the case center on the distinction between “sex,” which relates to reproductive systems, and “gender,” which can be a social and personal identity or expression, and whether the Legislature understood the difference when it passed Senate Bill 180. The word “gender” doesn’t appear within the law.
Additional arguments involve whether the Attorney General’s Office can show how the state would be harmed by gender markers on driver’s licenses.
The law was based on model legislation produced by Independent Women’s Voices, a far-right group with a long history of opposing women’s rights, and labeled a “women’s bill of rights.” Most of the attention during debate revolved around efforts to ban transgender and cisgender girls from playing together in school sports. Gov. Laura Kelly vetoed the law, but she was overridden by Republican-led supermajorities in both the Senate and House.
Pedro Irigonegaray, an attorney representing KDOR, strayed from legal analysis during Monday’s court hearing to address the Legislature’s attempt to target a class of residents who, by his calculation, hold 0.004% of the driver’s licenses issued in Kansas.
“It is not appropriate for a state to legislate discrimination,” Irigonegaray said. “It is not appropriate for a state to deny transgender people the right to dignity. We know from our world’s history what happens when a state diminishes the dignity of a class of human beings. We know where that train is headed, and it’s headed to a place that we know is horrible.
“And what I ask this court to consider is: Today it’s our transgender population, but who’s next? Who are they going to target next? Today is transgender — our brothers, sisters, mothers, fathers, friends, neighbors. We must put a stop to this. State-sponsored discrimination has no place in our democracy, and this is what this bill is all about.”
Anthony Powell, the solicitor general for Kobach’s office, said the case was merely about statutory interpretation, “contrary to all the press attendance.” There appeared to be four journalists in the courtroom.
Powell said he considers the terms “gender” and “sex” to be interchangeable, based on his “common sense” understanding of the words. He said he only became aware of the differences in recent years, even though experts had made the distinctions for decades before. He said he considers gender to be a “physical property,” not a feeling.
The state has the authority, Powell argued, to gather “accurate and consistent” data on driver’s licenses.
And, he said, driving is a privilege rather than a right.
“A transgender person doesn’t have to get a driver’s license,” Powell said. “If they think that obtaining a license and having their biological sex on it is so upsetting to them, I guess they don’t have to get a driver’s license.”
Julie Murray, an attorney for the American Civil Liberties Union, which joined the case to argue on behalf of transgender Kansas residents, said Powell’s argument should be rejected out of hand.
“This is an attempt to write them out of existence,” Murray said.
Judges Karen Arnold Berger, Stephen Hill and Sarah Warner heard arguments to determine whether to reverse a district court’s decision to issue a temporary injunction in favor of Kobach’s arguments. Under the injunction, which has now been in place for about a year, the state must issue driver’s licenses with a gender marker based on sex at birth.
The lower court agreed with arguments by the Attorney General’s Office that claimed the state would be harmed by allowing an agency to ignore the law, in Kobach’s opinion, and that law enforcement officers may be confused about a person’s true identity.
Irigonegaray said Kobach’s interpretation of the law is flawed, because it doesn’t address driver’s licenses or gender.
“In order to conclude that the Legislature in 2023 was unaware of the difference between ‘sex’ and ‘gender,’ one would have to believe that the state Legislature was operating on a 15th century mentality,” Irigonegaray said.
Kobach’s office could produce just one example of a police officer who was confused about a person’s identity based on their driver’s license. But police actually readily identified the person and arrested them.
Irigonegaray said there was no evidence to support the “scare tactic” that “fleeing transgenders were going to be everywhere because they were going to avoid the arms of justice.”
Arnold Berger asked Powell to explain why there was no outrage from law enforcement officers during the 17 years in which the state issued driver’s licenses that recognized gender instead of sex. Powell told her there aren’t a lot of transgender people in Kansas.
“Exactly,” she 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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