Trans Kansans cannot change gender on driver’s license while suit continues, judge rules
Transgender and nonbinary Kansans cannot change the gender marker on their driver’s license to reflect their gender identity while litigation over a new state law continues, a Shawnee County judge ruled Monday.
District Court Judge Theresa Watson issued a temporary injunction against the Kansas Department of Revenue, blocking the agency from allowing any changes of gender markers on drivers licenses as Kansas Attorney General Kris Kobach argues such changes violate a new state law defining man and woman by sex assigned at birth.
The Kansas Department of Revenue stopped allowing the changes in July in response to an earlier order from Watson that was initially intended to last two weeks while the temporary injunction was debated but instead remained in place for several months.
The order is the latest in a lawsuit Kobach, a Republican, filed against the Department of Revenue arguing the agency was failing to enforce a new Kansas law he believed forbids Kansans from changing state issued documents to reflect their gender identity.
The Department of Revenue has argued Kansans should still be allowed to change their documentation because state law passed in 2007 established that drivers licenses should be based on “gender” not “sex.”
Republican lawmakers passed the new state law, SB 180, last year over Democratic Gov. Laura Kelly’s veto. The law was the first of its kind in the nation and said man and woman would be defined in state law by an individual’s sex assigned at birth.
In her ruling, Watson said the meaning of the law was clear and that there was no indication lawmakers intended to ascribe separate meanings to “sex” and “gender” in state law. Allowing drivers licenses to be changed while litigation continues, Watson noted, could harm state interests because those licenses would remain in effect for six years.
“Licenses are used by law enforcement to identify criminal suspects, crime victims, wanted persons, missing persons, and others. Compliance with stated legal requirements for identifying license holders is a public safety concern,” Watson wrote. “Allowing KDOR to issue non-compliant driver’s licenses pending a final decision on the merits is an immediate and irreparable injury.”
A spokeswoman for Kelly said in an email that the administration was reviewing the decision to determine next steps.
Kobach celebrated the injunction in a statement.
“This decision is a victory for the rule of law and common sense. The Legislature wisely stated that state agencies should record biological sex at birth, and today the court held that the meaning of the law is clear,” Kobach said.
Kansas Constitution
The American Civil Liberties Union of Kansas intervened in the case and argued on behalf of transgender Kansans that SB 180 was an unconstitutional violation of their rights.
Trans Kansans, they argued, would face harassment and discrimination if they were unable to change their licenses to match their gender identity.
SB 180 was one of several bills approved in the Legislature last year regulating the lives of transgender Kansans. This year, Republicans are continuing those efforts with legislation that would ban hormone therapy and gender transition surgery for minors.
The ACLU pointed to a 2019 state Supreme Court Decision that established a state right to an abortion and, more broadly, bodily autonomy.
Applying that decision, commonly referred to as Hodes, to state documents, Watson said, is a “stretch.”
“Hodes said Kansans have the right to control their own bodies. It did not say Kansans have a fundamental state constitutional right to control what information is displayed on a state-issued driver’s license,” Watson said.
D.C. Hiegert, an ACLU attorney who is transgender, said in a statement Watson’s interpretation of SB180 would result in further harassment and denial of services for trans Kansans.
“We will continue working toward a vision of our state that allows all of us to live in peace, free from government persecution and impositions on our core identities,” Hiegert said.
“We remain unconvinced that the imaginary injury to the state could ever outweigh the enormous harm our clients and other transgender Kansans have and will continue to experience by being forced to carry inaccurate identification documents, in violation of their rights under the state constitution.”
