Government & Politics

Kansas birth certificate policy violates transgender individuals’ rights, lawsuit says

Citing privacy, discrimination and harassment concerns, a national LGBTQ rights organization on Monday filed suit against the state of Kansas alleging that it violates transgender individuals’ rights by refusing to change the sex listed on their birth certificates to correspond with their gender identities.

Attorneys for Lambda Legal, an organization that advocates for civil rights for LGBTQ people and those living with HIV, and Bryan Cave Leighton Paisner LLP are representing two transgender women and two transgender men, all born in Kansas.

The suit filed in the U.S. District Court in Kansas City, Kan., asks the court to declare unconstitutional Kansas’ birth certificate policy. According to the suit, Kansas, Ohio and Tennessee are the only states that don’t allow for changing birth certificates to reflect a transgender person’s gender identity. Kansas, however, allows residents to change their driver’s licenses and state identification cards, according to the suit.

Refusing to issue updated birth certificates, the suit argues, violates the 14th Amendment’s promise of equal protection and due process by treating transgender individuals differently.

“Let me be clear. A transgender woman is a woman. A transgender man is a man — period,” Omar Gonzalez-Pagan, senior attorney for Lambda Legal, said at a news conference announcing the filing.

Theresa Freed, deputy secretary of public affairs for the Kansas Department of Health and Environment, said in an email that the matter had been previously litigated in a Kansas court. She cited a Kansas law allowing the state to make “minor corrections” to records.

“The Kansas Department of Health and Environment does not have the authority to change an individual’s birth certificate, with the exception of minor corrections or by court order,” Freed said. “Gender identity would not be considered a minor correction.”

The suit argues the policy also violates the First Amendment by requiring transgender people to identify with their assigned sex at birth and putting them in situations where they’re forced to disclose their transgender status, whether or not they want to share that information publicly.

“By denying me a truthful and correct birth certificate, Kansas is forcing me to lie,” said Nyla Foster, a plaintiff residing in Kansas City. “It is forcing me to carry inconsistent documentation that exposes me to intimidation, prejudice, rejection, humiliation and ultimately violence.”

Luc Bensimon, a plaintiff from Topeka, said his Kansas birth certificate is the only place he is “not allowed to be male.”

“Short and sweet, I’m here today because I would like to be male all across the board,” Bensimon said.

According to the 2015 U.S. Transgender Survey cited in a press release announcing the suit, 32 percent of transgender individuals who presented identification that didn’t match their gender presentation reported some sort of negative interaction, including harassment, denial of services or violence.

Birth certificates, the lawsuit notes, are often used to prove citizenship, determine employment eligibility or obtain other forms of identification, including a driver’s license or passport.

“Put simply, all people need access to a birth certificate that accurately reflects their identity,” the lawsuit says. “However, transgender people born in Kansas, unlike cisgender people born in Kansas, do not have access to accurate birth certificates.”

Gonzalez-Pagan called a birth certificate the “quintessential identity document that follows a person from birth until death.”

“It is essential,” Gonzalez-Pagan said. “It allows a person to navigate through life.”

All four plaintiffs hope to change their Kansas birth certificates to correspond with their gender identity.

When individuals’ birth certificates don’t match their gender identities, their transgender status can be involuntarily revealed through their birth certificate, which happened to plaintiff Foster, the lawsuit says.

“For example, Ms. Foster has been required to present her birth certificate during job application processes,” the lawsuit says. “Because her birth certificate inaccurately states that she is male, providing this document has led directly to Ms. Foster being ‘outed’ as transgender, and subsequently treated suspiciously and disrespectfully by prospective employers.”

The lawsuit says mismatches between individuals’ birth certificates and their gender identities can also interfere with their ability to pass background checks.