COURTS
ACLU sets stage for January hearing on gender marker changes for Kansas driver's licenses
Jason Alatidd
Topeka Capital-Journal
Civil rights attorneys argue that a Kansas judge should reverse her order banning the state from issuing new driver's licenses to transgender people with a changed gender marker.
The new Monday filing from the ACLU of Kansas sets the stage for a January hearing in Shawnee County District Court on a July request from Attorney General Kris Kobach for a temporary injunction to continue blocking gender marker changes.
"KDOR’s policies regarding the issuance of driver’s licenses to transgender Kansas citizens have worked well for over a decade without any evidence of problems or harm," the ACLU said, asking Judge Teresa Watson to "allow KDOR to resume issuing driver’s licenses to transgender Kansas with a gender marker that aligns with the gender they live as, are perceived as, and know themselves to be. Intervenors, and all transgender Kansas citizens, are entitled to live without unlawful and unconstitutional interference."
The ACLU of Kansas has a new filing in Shawnee County District Court arguing that transgender people should be able to get gender marker changes on driver's licenses, despite what Attorney General Kris Kobach says about Senate Bill 180.
The ACLU is representing five transgender Kansans, all of whom have received gender-affirming medical treatment. The lawyers cited harms, such as heightened and invasive scrutiny by airport security, that ended once the transgender people were able to get IDs reflecting their gender identity.
Kobach, a Republican, sued in July to stop the Kansas Department of Revenue, which is part of Democratic Gov. Laura Kelly's administration, from making such changes. He cited a new law, Senate Bill 180, passed by the GOP-led Legislature over Kelly's veto that strictly defines sex for government records.
Watson has already granted a temporary restraining order, under which the Revenue Department cannot change gender markers for transgender Kansans. Credentials issues prior to that order have remained valid, including for voter ID during this month's election.
The temporary restraining order was not originally intended to stay in place for as long as it has. The parties had agreed to one extension, then Watson granted Kobach's request for another because his office said he needed more time to prepare for the ACLU's arguments representing transgender people.
Since then, the ACLU alleged that the attorney general's office obstructed discovery.
"The Court is aware of the significant obstructions Petitioner attempted to utilize to avoid producing documents requested via discovery," the ACLU said.
Does SB 180 apply to driver's licenses?
The ACLU argues that SB 180 — which never mentions driver's licenses — does not apply to the statutes on driver's licenses, which was last updated in Senate Bill 9. Had the Legislature intended for SB 180 to expressly overrule SB 9, legislators "could easily have done so."
"In passing this definition of sex in SB 180, the legislature singled out transgender people for worse treatment than people who are not transgender," the ACLU said. "Rather than debating the policy implications of adopting specific definitions of sex in specific statutory contexts, Petitioner (Kobach) argues that in enacting SB 180, the legislature rewrote the entire state code to erase transgender people from the law."
The ACLU argues that the authors of the model legislation that Kansas lawmakers copied have said the language does not apply to driver's licenses. They cite a document prepared by Independent Women's Voice and shared with the attorney general's office indicating that SB 180 was never intended to affect driver's licenses.
They cite the legislative history and a lack of supporters indicating there was any intent to affect driver's licenses. The ACLU also cites an email from Rep. Carrie Barth, R-Baldwin City, to Kobach that questioned whether the law applied to driver's license gender markers as evidence "that even the lawmakers who voted in favor of SB 180 did not necessarily interpret the language of the statute to apply to driver’s licenses."
What was the legislative intent of SB 180?
During legislative debates, SB 180 was largely seen as a bathroom bill.
"The legislative history demonstrates that the explicit purpose of the law was to discriminate against transgender people, based on a stated desire to exclude them from public spaces like restrooms or locker rooms," the ACLU said.
The Legislature dubbed the law the "Women's Bill of Rights."
"Despite a nominal gesture at the protection of women in its title, SB 180 actually operates solely by discriminating against transgender people," the ACLU said. "This, the legislature cannot do under the Kansas Constitution."
While the ACLU argues the law is unconstitutional — citing the right of personal autonomy recognized in the landmark Hodes abortion rights case — Kobach argues that the court should not strike it down.
"A supermajority of the Kansas Legislature has concluded that having immutable biological sex reflected in the driver’s license data set and in other data sets is in the public interest," Kobach said. "This should settle the matter as far as the Court is concerned. Once a bill becomes a law, it is improper for either the judiciary or the executive branch to second-guess the wisdom of that decision. The Legislature’s determination of how to best serve the public interest is final."
Is there an impact on law enforcement?
Kobach had argued that allowing gender marker changes would cause "irreparable injury" to law enforcement.
"Inaccurate information could obviously affect whether a law enforcement officer would be able to accurately identify a person," Kobach said. "The harmful consequences are most obvious in the context of arrest warrants: a mismatch between the sex on a warrant and identification could allow a wanted person to escape. But it could also be a problem in, for example, jail or prison operations."
The ACLU said Kobach "produced no evidence that any transgender person in Kansas has ever eluded arrest or caused harm to law enforcement officers because their driver’s license listed the gender they live as rather than their sex assigned at birth."
That includes Shawnee County Sheriff Brian Hill's response during a deposition that he had no specific examples of law enforcement encountering any issues during an interaction with a transgender person.
Documents from discovery show Kobach's office "attempted to elicit evidence ... to support his claims" from Lt. Theron Chaulk, of the Johnson County Sheriff's Office. The ACLU said Chaulk told assistant attorney general Jesse Burris in an email that "I have spoken to each and every officer in my division and, at this time, there are zero examples of the gender [on driver’s licenses] affecting any call for service."
The ACLU said Kobach's own witness contradicted his arguments about changed gender markers affecting jails.
They said that documents show the attorney general's office drafted an affidavit for Maj. Rick Newson, of the Johnson County Sheriff's Office, about using driver's licenses in the jail booking process, but Newson requested they be edited because they were inaccurate.
The ACLU argued that Kobach's stance on how SB 180 applies to jails would put corrections officers in violation of the National Prison Rape Elimination Act.
"If jails were to do what the Petioner (Kobach) suggests they do — that is, look at an individual’s driver’s license to determine the individual’s sex at birth and then house the individual according to sex at birth — the facility would be in direct violation of federal law, and risk losing a portion of its federal funding," the ACLU said. "It would also create a significant safety risk for transgender individuals who may be at increased risk for sexual abuse if placed in a housing unit that matches their sex assigned at birth, but not their gender identity and gender presentation."
Kobach provided no evidence for public health claim
Noting that driver's licenses are used to denote that someone is an organ donor, Kobach claimed in court documents that "a mismatch between the recorded and the actual sex of a donor could deleteriously affect outcomes for the recipient" and lead to "botched organ transplants."
He apparently backed off that claim when pressed to prove it.
"Grasping at straws, Petitioner (Kobach) earlier raised the fanciful specter to this Court that KDOR’s gender marker policy could harm public health by causing unsuccessful organ transplant operations," the ACLU wrote. "When asked to back this up via discovery, Petitioner provided no evidence whatsoever supporting this allegation that the gender marker on an individual’s driver’s license plays any role in organ donation. Then, on November 6, 2023, Petitioner disclaimed any reliance on this alleged government interest during the pendency of this litigation."
ACLU argues that SB 180 harms trans people
"Being required to utilize a license with a gender marker that does not match the gender they live as in daily life is damaging to their well-being and discloses that they are transgender to anyone who sees their license, forcibly outing them and putting them at risk of emotional distress and serious personal harm," the ACLU argued.
The ACLU said Adam Kellogg, a 20-year-old University of Kansas student, doesn't want to have to disclose that he is a transgender man when he goes to the bank, interacts with police, rents a car, votes, applies for jobs or enters a government building.
The ACLU said that Kathryn Redman, a 62-year-old transgender woman from Johnson County and another of the five people they represent, used to be harassed because the male gender marker did not match her female appearance.
She would be subjected to "invasive questions, pat downs of the genital area of her body, and forced disclosure of her transgender identity" by the TSA when flying with an ID showing a male gender marker. That stopped after getting a new ID showing a female gender marker, the ACLU said.
"Insisting that transgender people carry a license with a gender marker that reveals their sex assigned at birth, solely because the legislature has declared that transgender women are not female, and transgender men are not male, to further the government interest in 'linguistic clarity' is not a proper governmental interest," the ACLU said. "There is simply no rationale for requiring transgender people to carry a driver’s license that reveals their sex assigned at birth and discloses their transgender status apart from an animus to disadvantage them uniquely."
Jason Alatidd is a statehouse reporter for the Topeka Capital-Journal. He can be reached by email at [email protected]. Follow him on X @Jason_Alatidd.