TOPEKA, Kan. – 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 general 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. He is not seeking to undo past changes, only prevent them going forward.
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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. The suit challenged 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.
Luc Bensimon, a Black transgender activist who was one of the plaintiffs in that lawsuit, said Saturday he was already getting calls and emails from people trying to change their birth certificates who are concerned they won't be able to complete the process.
"We didn't go through that case just to have him try and change it now," Bensimon said. “I thought this was already dealt with but I have the energy to go back and deal with it again if we have to.”
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.
Also in 2020, federal judges in Idaho and Ohio struck down rules against transgender people changing their birth certificates. But this month, federal judges in Tennessee and Oklahoma dismissed challenges to two 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.
Kelly's office did not immediately return a message Saturday seeking reaction to Kobach's decision.
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.
As for birth certificates, the small number of states not allowing transgender people to change them shrunk through previous federal court challenges like the one in Kansas.
The ACLU of Montana says it plans to challenge a rule imposed there last year barring people from changing the sex listed on their birth certificates.
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 that 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.
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Associated Press Writer Amy Hanson in Helena, Montana, contributed to this story.
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