Judge rejects Kelly admin’s effort to revive gender marker changes on KS driver’s licenses
A court order blocking the Kansas Department of Revenue from processing gender marker change requests for drivers licenses will stay in place after a judge ruled against a motion from Kansas Gov. Laura Kelly’s administration.
In a ruling Wednesday, Shawnee County District Judge Theresa Watson rejected The Kansas Department of Revenue’s plea for her to rescind the temporary restraining order she issued Monday morning.
Though the ruling is not a direct judgment on the law itself, or KDOR’s policy, Watson’s ruling indicated she was not swayed by the agency’s overall argument that “sex” and “gender” have different connotations in state law.
“This argument is undercut by the fact that ‘gender’ information gleaned by the Division under these two statutes is displayed on a state-issued driver’s license under the heading ‘sex,’” Watson wrote in the order. “In the context of driver’s licenses, the terms appear to be interchangeable.”
The ruling is the latest in a legal battle between Kelly’s administration and Republican state Attorney General Kris Kobach over the implementation of SB 180, a bill which defines man and woman in state statute based upon sex assigned at birth. Kobach filed a lawsuit against the Kelly administration last week arguing they were failing to enforce the law.
Ted Smith, the attorney for KDOR, argued the agency was not violating the law in the first place. Kansas driver’s license statute, Smith said, requires driver’s licenses to list a person’s gender, not their sex assigned at birth.
The word “gender” does not appear anywhere in SB 180. Therefore, Smith said, KDOR’s policy is not impacted by the law.
“’Gender’ and ‘sex’ are not so easily interchanged as Petitioner claims,” Smith wrote in a motion to dissolve the restraining order Monday.
In a statement following the ruling Kelly’s spokesman, Zach Fletcher, said the administration could not comment on pending litigation but would follow Watson’s order.
Kobach’s office argued KDOR is violating the new law by continuing to allow gender marker changes on drivers licenses. Watson must retain the restraining order, they said, because any violation of law presents a harm to the state.
“We believe that the violation of the statute constitutes irreparable harm to the state,” Kobach said during a hearing on the temporary restraining order Wednesday.
He rejected the idea that state law specifying driver’s licenses to report an individual’s gender were meant to allow for changes based on gender identity. The 2007 bill that made the change, he said, was focused on federal Real ID compliance.
The temporary restraining order is set to expire later this month. Before then, Watson will likely hold hearings on whether KDOR is violating SB 180 and rule on the policies legality.
On Tuesday, the ACLU of Kansas entered a request to intervene in the case on behalf of five transgender Kansans who would be affected by the policy change. The motion argued that SB 180 itself infringes on the fundamental rights of transgender Kansans, and therefore violates the Kansas constitution.
“While the court’s decision today is disappointing and undoubtedly leaves transgender Kansans in fear, we want to make clear that this decision is not the final decision in the case,” the ACLU said in a statement. “We will continue to fight for transgender Kansans’ right to have identification that reflects who they are, and that fight is far from over.”
This story was originally published July 12, 2023 at 3:52 PM.
