Transgender Kansans remain temporarily barred from changing the gender on their drivers’ licenses, a judge ruled Wednesday.
Shawnee County District Court Judge Teresa Watson denied Democratic Gov. Laura Kelly’s administration’s request to dissolve an order she issued earlier this week blocking the changes.
The 14-day ban comes in an ongoing legal fight over the implementation of a new state law that ties the legal definition of terms like “male” and “female” to a person’s reproductive anatomy. That law, known as the “Women’s Bill of Rights,” took effect July 1.
Drivers’ licenses have emerged as the most immediate battleground in implementing the law, which supporters touted as a way to preserve spaces like restrooms and other facilities for women’s safety. But supporters and detractors now agree the law has little impact on who is permitted to use those spaces.
The judge first blocked the Kansas Department of Revenue from granting driver’s license gender changes on Monday in response to a lawsuit filed last week by Republican Attorney General Kris Kobach.
Kobach contends the law requires driver’s license and birth certificate records maintained by the state revenue and health departments to reflect a person’s anatomical sex identified at birth as opposed to their gender identity. He’s argued that it also forces agencies to reverse any changes to those documents that were made before the law took effect this month.
Kelly rejected Kobach’s interpretation of the law and directed her administration to continue issuing the changes. That prompted Kobach’s lawsuit, which only focused on drivers’ licenses. (A 2019 consent decree requires the state to grant birth certificate changes. Kobach said he believes state law trumps that decree, but has asked the federal judge that issued it to revise it in light of the new law.)
When Watson issued the temporary restraining order on Monday, the revenue department immediately requested it be dissolved. After a teleconference hearing on Wednesday, Watson chose to keep the two-week restraining order in place as the broader case continues.
She did not rule on the merits of the broader case, but she appeared sympathetic to Kobach’s arguments to ban the changes.
Ted Smith, an attorney for the revenue department, argued that the law does not impact drivers’ licenses because lawmakers did not stipulate that it would.
“Other states have used the same model language, and they have decided to address issues regarding driver’s licenses,” Smith said at the Wednesday hearing. “The state of Kansas, for whatever reason, didn’t.”
He said the Legislature made a decision in 2007 to change the driver’s license marker from sex to gender in order to make it easier to identify people who move to Kansas from other states. But, he said, the agency retains the ability to keep track of a person’s sex assigned at birth when it’s different from the gender listed on their license.
“We have the capability in our system of basically identifying this class of individuals and providing that distinction,” he said.
Kobach held that granting drivers license changes constitutes a violation of the statute and that such a violation itself is an injury to the state.
“The fact that some particular situations may require the exercise of judgment by (revenue) officials does not mean that KDOR has discretion to not obey” the new law, he said.
Kobach also argued that licenses would make it more difficult for law enforcement to identify suspects, recipients of warrants and determine in which facilities to house people in pretrial detention.
Kelly’s administration has argued the opposite — that licenses reflecting a person’s current identity make it easier for law enforcement to identify them.
The American Civil Liberties Union of Kansas has also entered the legal fight. On Tuesday, the organization filed a motion to intervene in the lawsuit on behalf of five transgender Kansans who it says are “irreparably harmed” by the inability to update their IDs. In response to the Wednesday order, the organization indicated it was disappointed but emphasized it was not the final decision in the case.
Rose Conlon reports on health for KMUW and the Kansas News Service.
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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