Kansas' attorney general prohibited trans persons from amending their birth certificates

Transgender people born in Kansas could be prevented from changing their birth certificates to reflect their gender identities if the state’s conservative Republican attorney is successful with a legal move he launched late Friday.

Attorney General Kris Kobach filed a request in federal court asking a judge to end a requirement for Kansas to allow transgender people to change their birth certificates.

U.S. District Judge Daniel Crabtree imposed the requirement in 2019 to settle a lawsuit filed by four transgender Kansas residents against three state health department officials over a policy that critics said prevented transgender people from making changes even after transitioning, legally changing their names and obtaining new driver’s licenses and Social Security cards.

It wasn’t clear whether Kobach’s effort would succeed, given a U.S. Supreme Court decision in 2020 declaring a federal law barring sex discrimination in employment also prevents discrimination based on sexual orientation or gender identity. That year, federal judges in Idaho and Ohio struck down rules against transgender people changing their birth certificates, but on Thursday, a federal judge in Tennessee dismissed a lawsuit challenging one of the nation’s few remaining state policies against such changes.

Kobach’s move appears to be in keeping with a new, sweeping Kansas law taking effect July 1 that rolls back transgender rights and was enacted by the Republican-controlled Legislature over Democratic Gov. Laura Kelly’s veto. A memo filed electronically with the request by Kobach shortly before midnight cited the law as a reason to revisit the 2019 settlement.

The memo argued Crabtree’s order makes it “impossible” to follow the new state law and that since the Legislature “has spoken,” the state health department, which handles birth certificates, is now “bound to execute the law as written.”

Kobach already had scheduled a Monday afternoon news conference at the Statehouse to discuss enforcement of the new law.

Crabtree’s 2019 order blocked a policy imposed by former Republican Gov. Sam Brownback’s administration that was among the toughest against birth certificate changes in the U.S. Kelly is a strong supporter of LGBTQ+ rights and her administration agreed to settle the lawsuit less than six months after she took office.

That decision came almost a year after Crabtree declared the Kansas policy violated transgender people’s constitutional rights to due legal process and equal treatment under the law. His order notes that federal courts in Idaho and Puerto Rico had struck down no-change policies. Kobach’s memo called those rulings outdated.

The American Civil Liberties Union of Kansas and the LGBTQ+-rights legal group Lambda Legal, representing the four Kansas residents, condemned Kobach’s move. Lamda Legal’s Omar Gonzalez-Pagan called it “unnecessary and cruel.”

Kansas ACLU Executive Director Micah Kubic added in a statement: “Mr. Kobach should rethink the wisdom — and the sheer indecency — of this attempt to weaponize his office’s authority to attack transgender Kansans just trying to live their lives.”

The new Kansas law is designed to prevent transgender people from using restrooms, locker rooms and other single-gender facilities associated with their identities. At least nine other states have such laws, mostly focused on public schools.

Kobach has said he believes the new Kansas law also prevents transgender people from changing their driver’s licenses, though the law contains no specific enforcement mechanisms. Lawmakers wrote the bill so it could prevent transgender people from changing their birth certificates, except for the 2019 federal court order, without specifically mentioning either birth certificates or driver’s licenses.

For weeks, a project of Kansas Legal Services, a nonprofit law firm, encouraged transgender Kansans to change their driver’s licenses before the new law took effect. Kelly’s administration, which oversees the licensing of drivers, hasn’t said whether it believes such changes would still be allowed under the new law.

Ellen Bertels, the attorney spearheading the effort, said that while a transgender person could sue after the law takes effect to protect people’s right to change their driver’s licenses, a lawsuit from a state official against Kelly’s administration could seek to prevent such changes.

“That’s it’s kind of the obvious place that they would end up,” Bertels said.

As for birth certificates, the small number of states not allowing transgender people to change them has shrunk because of federal court challenges like the one in Kansas. In Oklahoma, GOP Gov. Kevin Stitt is being sued over his 2021 order barring such changes.

The ACLU of Montana plans to challenge a rule imposed there last year barring people from changing the sex listed on their birth certificates, according Alex Rate, one of its attorneys. The state has tightened its rules since GOP Gov. Greg Gianforte took office in 2021.

Previously, starting in 2017 when Democrat Steve Bullock was governor, Montana allowed transgender people to change their birth certificates by filling out an affidavit.

LGBTQ+ rights advocates say changing birth certificates, driver’s licenses and other records to reflect a transgender person’s gender identity is key to affirming their identities and often greatly improves their mental health.

Policies against changing birth certificates and other documents have practical implications for transgender residents, too. For example, Kansas requires voters to show a photo ID at the polls or when obtaining an absentee ballot.

Critics of the new Kansas law contend it is designed to legally erase transgender people.

It declares state law recognizes only two genders, male and female, and defines them based on a person’s “biological reproductive system” at birth. A woman is someone whose system “is designed to produce ova,” while a male only is someone with a system “designed to fertilize the ova of a female.”

The law then declares “important governmental objectives” of protecting people’s health safety and privacy justify having sex-segregated spaces in line with those definitions.