TOPEKA, Kansas — Transgender Kansans who legally changed the gender on their drivers’ licenses or birth certificates will soon see them changed back by the state, Attorney General Kris Kobach said.
Kobach said Monday that an expansive new Kansas law defining male and female according to a person’s biological characteristics requires state agencies to maintain records in line with a person’s sex assigned at birth.
Trans Kansans will still be able to vote and drive using their current IDs, but future IDs will show their gender at birth. Birth certificates don’t have to be given back to the state, but the Kansas Department of Health and Environment will change its records. Those changes will then be reflected on any subsequent birth certificates issued.
“This is similar to when a person changes address,” Kobach said at a press conference. “You may still use your driver’s license with the incorrect address on it, but the new driver’s license that is issued when your current license expires will reflect the correct address.”
But he downplayed the most significant changes expected to come as a result of the law concerning transgender people’s use of sex-specific facilities including bathrooms, locker rooms and domestic violence shelters.
The law states that people will be required to use facilities that align with their sex assigned at birth, but it does not create any crime for not complying.
Kobach’s remarks were among the first indications of how the sweeping new law, set to take effect July 1, will be enforced. For nearly two months, transgender Kansans have been anxiously awaiting guidance about how their lives will be impacted by the new law.
Supporters call the law a “women’s bill of rights” and have argued it’s needed to preserve safe spaces for cisgender women and girls.
Critics say that it’s one of the broadest restrictions on transgender rights in the country and that it could fuel harassment and violence against the LGBT community.
Kansas lawmakers passed the law in April, narrowly overriding a veto by Democratic Gov. Laura Kelly, who said it and several others would hurt the state’s economy by scaring away business investment.
It’s unclear how the law will factor in prospective employers’ calculations, but some transgender Kansans say they are planning to leave the state because of it.
IDs and birth certificates
Since 2019, Kansas has allowed transgender people to update the gender marker on their birth certificates and drivers licenses due to a U.S. District Court decision in a case brought by four transgender residents.
Late Friday night, Kobach filed a motion seeking a judge’s permission to no longer follow that order because of the new law. He said Monday that state law trumps consent decrees, so state agencies will eventually have to comply with SB 180. Kobach said he will wait for the judge to make a decision on the consent decree so state agencies don’t have to choose between upholding a consent decree or state law.
“We would not push an agency to be in that position,” Kobach said.
Omar Gonzalez-Pagan, a Lambda Legal attorney who represented the plaintiffs in the case, said the LGBT civil rights organization would “vigorously oppose” Kobach’s efforts to undo the rights granted by the decision.
“SB 180, while misguided and discriminatory, does not conflict with the Consent Judgment,” Gonzalez-Pagan said in a news release. “Lambda Legal will not allow the Attorney General to nullify a binding, years-old federal judgment.”
The announcement confirmed some legal experts’ suspicions that the state would move to end gender marker changes. But, many assumed, the state would allow existing changes to stand.
That spurred a massive mobilization among transgender people in the weeks after the law was passed to update their documents before it took effect. Kansas Legal Services held a series of legal aid sessions to help people request changes to their documents before the law took effect. Hundreds turned out.
“Having an accurate identity document,” said Kansas Legal Services attorney Ellen Bertels, “reduces the risk of harassment, discrimination, and even physical violence for trans folks in public.”
Micah Kubic, executive director of the American Civil Liberties Union of Kansas, said the law does not require any of the enforcement measures Kobach has outlined.
“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,” he said.
Bathrooms
The attorney general said Monday that where transgender Kansas can go to the bathroom will not change.
That’s a marked change in tune from legislative hearings on the legislation, which overwhelmingly focused on lawmakers’ desire to bar transgender women and girls from women’s restrooms.
Kobach said the law only impacts public agencies, so private businesses can still have whatever bathroom restrictions they please. The new law doesn’t specifically outline bathroom restrictions in government buildings, like public universities, but he said it does shield schools and other government institutions from lawsuits if they barred transgender women from female bathrooms.
“It states that the government has an important governmental interest in maintaining bathrooms that are specific to a person's biological sex,” he said. “That is, essentially, addressing a legal argument that might be made in the future about whether it's in any way discriminatory to have bathrooms correspond to biological sex.”
The law also doesn’t mention how these restrictions would be enforced. In Florida, for example, using the wrong bathroom is a misdemeanor.
Rep. Tory Mary Blew, a Great Bend Republican, said she isn’t sure if the Legislature will come back next session and impose penalties.
“I can't answer that question,” she said. “It may be up to the chair of those committees (and) what they are interested in doing. A lot can change between now and when we come back in January.”
Prisons and jails
The soon-to-be-enacted law will have little impact on correctional facilities. The state prison system has dozens of trans inmates, though there is only one known inmate who has completed a sex change surgery and been transferred to a different prison. That inmate, originally born as a male, has a doctor's note certifying the gender change and is in the Topeka women’s prison.
An inmate's housing assignment is up to the Kansas Department of Corrections. The new law would not force the trans inmate to move to a male prison and only prohibits her from going to certain parts of the women’s prison.
Rose Conlon reports on health for KMUW and the Kansas News Service.
Blaise Mesa reports on criminal justice and social services for the Kansas News Service in Topeka. You can email him at blaise@kcur.org.
The Kansas News Service is a collaboration of KCUR, Kansas Public Radio, KMUW and High Plains Public Radio focused on health, the social determinants of health and their connection to public policy.
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