ACLU, Lambda Legal say AG’s ‘bluster’ has no legal authority
BY: RACHEL MIPRO
Kansas Reflector
TOPEKA — Kansas Attorney General Kris Kobach on Monday outlined his legal interpretation of an anti-transgender law, advising state agencies to revert some Kansans’ driver’s licenses and birth certificates back to the genders assigned to them at birth.
Legal authorities called his interpretation “little more than bluster.”
Kobach minimized the impact the new state law would have on the day-to-day lives of transgender Kansans while insisting the law bans them from changing their birth certificates and driver licenses to match their identity.
“Very little changes,” Kobach said during a news conference at the Statehouse. “It just means that changing your birth certificate is not an option and that your drivers’ license will, in Kansas, reflect your sex at birth. But you can certainly appear in the picture any way you wish on the drivers’ license, but the driver’s license definition of sex will reflect Kansas state law.”
Legal authorities, mental health experts and members of the LGBTQ community have said the law will cause significant harm to the mental health of transgender residents. Gender markers are a critical safety measure, in part because having IDs that don’t reflect a person’s identity could lead to harassment or discrimination.
Senate Bill 180 defines women as having the ability to produce eggs for reproduction and men as those whose reproductive systems are developed to fertilize eggs. It specifies that facilities for separate genders “are substantially related to the important governmental objectives of protecting the health, safety and privacy of individuals in such circumstances.”
In reality, gender refers to social and internal identity, while sex relates to biological characteristics, such as chromosomes, hormones and reproductive anatomy. The National Center for Transgender Equality defines gender identity as the internal knowledge of gender.
The law, which takes effect July 1, is expected to impact gender marker changes because of a portion that stipulates any agency, office or organization that collects vital statistics has to identify the person as either male or female based on designation at birth.
Legal authorities say the law can’t actually be used to ban transgender people from specific spaces, but few have been willing or able to speak to the full implications.
During the Monday news conference, Kobach gave his opinion that the statute would require Kansas driver’s licenses to be based on “biological sex at birth” and that any existing licenses that have been updated with gender would be required to reflect sex assigned at birth for all future licenses. His opinion has no legal authority, but may influence policy decisions or court filings.
Kobach also determined the law would require the Kansas Department of Corrections to house only “biological females” in a specific part of the Topeka Correctional Facility.
The American Civil Liberties Union of Kansas said it was prepared to push back on Kobach’s “incorrect interpretation,” in the courts.
“SB 180 absolutely does not require any of the measures Attorney General Kobach has advised the Kansas Department of Revenue and the Kansas Department of Health and Environment — two executive branch agencies that are totally outside of Mr. Kobach’s control — to put in place,” said Micah Kubic, the state ACLU’s executive director. “These are of his own volition and interpretation, driven by his own extreme ideological perspective, not by requirements of the law, the constitution, or the best interests of Kansans.”
Kobach’s public comments on the much-debated law follow a late-Friday filing by his office in federal court to try to nullify a 2019 agreement by the state to allow amended birth certificates for transgender Kansans.
The Foster v. Andersen case, filed in 2018, successfully overruled Kansas’s policy prohibiting amended birth certificates after legal authorities determined the policy violated the constitution’s equal protection clause and the due process clause of the 14th Amendment. The plaintiffs were represented by the Lambda Legal Defense and Education Fund, an LGBTQ-focused civil rights organization.
Lambda Legal counsel and health care strategist Omar Gonzalez-Pagan, who served as lead attorney in the 2018 lawsuit, said the organization would fight Kobach’s attempt to overturn the agreement.
“Today’s action represents yet another unnecessary and cruel move to target the transgender community with animus and discrimination for political gain,” Gonzalez-Pagan said. “We will vigorously oppose this gimmick by Attorney General Kobach. Let us be clear, Lambda Legal will not allow the attorney general to nullify a binding, years-old federal judgment.”
During the meeting, Kobach — flanked by Sen. Renee Erickson, R-Wichita, and state Reps. Barb Wasinger, R-Hays, and Tory Blew, R-Great Bend — repeatedly emphasized his idea of gender.
When asked why she felt the legislation was necessary and why lawmakers should interfere with Kansan gender identity, Erickson responded: “I will ask you, what is a woman?”
Erickson also compared being transgender to wanting to change her age.
“What happens if some days I feel like I’m 70? Can I go change my driver’s license, qualify for Social Security?” Erickson asked.
She said people could identify however they choose but couldn’t “change biological truth.”
Erickson’s comments contradict the transgender community that showed up to protest the harmful legislation multiple times throughout the year.
“I’m just f***ing upset that I have to be here, that I have to tell people that I am real, I’m not scary, I exist and I don’t want to have to do this,” said Leo McDaniel at a May rally at the Statehouse. “I don’t want to have to tell people about this. I don’t want people coming up to me anymore and asking what genitals I have.”