by Tim Carpenter, Kansas Reflector
July 11, 2023
TOPEKA — The American Civil Liberties Union of Kansas filed a motion Tuesday on behalf of transgender Kansans to intervene in a lawsuit initiated by Attorney General Kris Kobach to prohibit a state agency from processing requests to change gender markers on driver’s licenses.
ACLU of Kansas, in collaboration with the Stinson law firm, submitted the motion in Shawnee County District Court at the request of five unnamed individuals who allegedly risked being “irreparably harmed by an unconstitutional effort by Kobach to ban and reverse amendment of gender declarations on licenses to drive.”
The outside intervention in Kobach’s lawsuit would support the Kansas Department of Revenue’s motion to reverse the temporary restraining order issued Monday blocking the Kelly administration from welcoming gender-marker adjustments on driver’s licenses.
“Mr. Kobach’s actions demonstrate a flagrant attempt to do an end-run around our state constitution,” said Sharon Brett, legal director of ACLU of Kansas. “Mr. Kobach is choosing to focus the power of the attorney general’s office on, of all things, attacking and discriminating against transgender Kansans.”
After the governor disclosed she didn’t plan to direct the Department of Revenue to halt changes to driver’s licenses based on gender identity, Kobach filed suit. The ACLU’s response to Kobach’s maneuver to secure state court affirmation of Senate Bill 180 — adopted by the Legislature over Democratic Gov. Laura Kelly’s veto — could be a step toward a constitutional challenge of the Kansas statute.
Brett said it was insulting Kobach claimed the law that took effect July 1 — labeled by supporters as the Women’s Bill of Rights — was about aiding women.
“Instead, they have weaponized women’s rights in a way that actually re-entrenches the oppressive gender stereotypes that hurt all of us,” Brett said. “Our clients deserve to live their lives free of harassment, discrimination and violence — all consequences that Mr. Kobach’s erroneous legal interpretations are designed to encourage.”
On July 7, Kobach filed in Shawnee County to compel the Department of Revenue to stop approving applications from Kansans interested in altering gender information on driver’s licenses. District Court Judge Teresa Watson, a 2014 appointee of GOP Gov. Sam Brownback, granted the temporary restraining order against the Department of Revenue without waiting until Kelly administration lawyers had an opportunity to respond to Kobach.
Kobach said in his lawsuit Kelly didn’t possess powers once claimed by English monarchs “to suspend the operation of statutes.”
Kelly administration pushback
On Monday, attorneys for the Department of Revenue requested a hearing to argue for reversal of the 14-day temporary restraining order. Watson’s order said she found merit in Kobach’s interpretation of Senate Bill 180, which he contended forbid Kansans from modifying the sex marker of Kansas birth certificates, driver’s licenses or other identification documents.
Attorneys in the Kelly administration argue the law pushed through by Republican majorities in the House and Senate exclusively addressed sex determinations on birth certificates controlled by the Kansas Department of Health and Environment. The statute didn’t deal with gender information recorded on driver’s licenses handled by the Department of Revenue, the Kelly administration said.
Since Jan. 1, more than 500 people have sought to alter gender on driver’s licenses in Kansas. That included 172 in June prior to implementation of the law July 1.
Ted Smith, an attorney representing the state Department of Revenue, said the restraining order should be dissolved and a full hearing set on the issue. He said granting a restraining order without a hearing “should never change the status quo” or undermine a principle that the relative position of both sides in a dispute should be preserved until a decision on merits of the case.
He said quashing the order would enable the Department of Revenue to continue modifying driver’s licenses in terms of gender markers under a process that retained historical information on gender selection, including sex at birth derived from Kansas birth certificates. The Department of Revenue’s process has been in place since 2007 and was backed by administrative changes implemented in 2011.
“Petitioner is requesting an affirmative change from the status quo, that KDOR diverge from its current process of relying upon gender for purposes of developing identity,” Smith’s motion said. “There is no established, actual harm shown by the petitioner if KDOR’s processes are maintained — beyond hypothetical cases.”
Kobach on two fronts
Kobach, who was elected attorney general in November and lost the 2018 gubernatorial race to Kelly, said his lawsuit was about requiring the processing of driver’s licenses so people were identified by sex as male or female. Those constraints ignored people with chromosomal variations, such as intersex people, or individuals with diverse gender identities, such as transgender or nonbinary people.
Separately, Kobach filed in U.S. District Court to alter a 2019 agreement allowing Kansans to amend gender markers on birth certificates issued by KDHE.
This transgender bill approved by the 2023 Legislature was drawn from model legislation advocated by a national organization with a history of opposing women’s rights, including the Equal Rights Amendment and equal pay. It was championed by Independent Women’s Voices, which advocated for the bill in Kansas and other states to counter spread of “transgender ideology.”
The Kelly administration says the two-page bill wasn’t tailored to specifics of Kansas law, including the distinct processes of handling driver’s licenses and birth certificates. The law also didn’t contain an enforcement mechanism, raising questions about how the state would deal with actions viewed as contrary to statute.
Clear legal duty?
In the Department of Revenue’s court filing, Smith said accurately recording gender on driver’s licenses fell in line with the idea of checking the identity of an individual during a law enforcement traffic stop, when cashing a check or getting on an airplane. The driver’s license was more useful when appearance of a person matched information contained on the card, he said.
He also argued the judge’s reliance on an immediate restraining order was inappropriate unless “there is a clear legal duty attached.” Authority claimed by the attorney general under the new state law wasn’t clearly established by Senate Bill 180, he said.
“Rather it is clear that driver’s licensing specific statutes continue to control and KDOR’s actions are concordant with law. There will be serious harm and public impact to individuals if they must reclassify their gender as requested by the petitioner,” the reply motion said.
Prior to 2007, Kansas law required the Department of Revenue to document an applicant’s sex on the driver’s license. Senate Bill 9, however, change the driver’s license field from sex to gender, which standardized the process of evaluating documentation such as a U.S. passport or birth certificates from another state.
The 2011 administrative policy, crafted by the Brownback administration, enabled the Department of Revenue to address inconsistent processing of requests to adjust gender markers and grapple with potential Americans with Disability Act claims.
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.
