ACLU of Kansas pushes back on AG Kobach’s flawed advisory opinion
FOR IMMEDIATE RELEASE
Monday, June 26, 2023
CONTACT: Esmie Tseng, ACLU of Kansas, [email protected]
TOPEKA, KAN. – Earlier today, Attorney General Kris Kobach issued an “advisory opinion” about SB 180, the new law passed by the Kansas Legislature to codify scientifically inaccurate and underinclusive definitions of sex into state statute. In response, the ACLU of Kansas reminds transgender Kansans that Mr. Kobach’s advisory opinion is little more than bluster.
“Even as attorney general, Mr. Kobach’s opinion is just that – his opinion,” said Micah, Executive Director of the ACLU of Kansas. “SB 180 provides very little in the way of meaningful clarity. As he has done so many times in the past, Mr. Kobach was more than willing to rush in and impose his own stamp of extremism in an attempt to allow the state to deny Kansans their basic constitutional rights. But should he decide to go further in an attempt to enforce his interpretation, the ACLU of Kansas remains ready to respond with the full force of our community and our legal team.”
“The Kansas Supreme Court has made clear that Attorney General’s opinions are advisory only, and not binding authority in Kansas courts. That is true of Mr. Kobach’s opinion regarding SB 180 as well,” said Sharon Brett, Legal Director of the ACLU of Kansas. “Courts have been more than willing to disregard attorney general opinions they don’t agree with, especially when the issuing office has failed to interpret the law in accordance with the basic standards of our Constitution. State statutes cannot override Kansans’ constitutional rights, and the courts—not attorneys general—are the final decision makers in that arena.”
On Saturday, July 1, Kansas Senate Bill 180 will become law after its passage in the 2023 legislative session, following an override of Governor Laura Kelly’s veto. SB 180, the so-called “Women’s Bill of Rights,” would codify into state law scientifically inaccurate and underinclusive definitions of sex. However, the text of the law does not include any enforcement or penalty provisions—meaning SB 180 does not, on its own, require state agencies to take specific actions; make anything a crime or a civil offense; or bar any private individuals from acting in accordance with their true gender.
“The text of SB 180 lacks any explicit enforcement mechanism, making it difficult for people to understand how the law will actually be applied,” said Kubic. “However, SB 180 absolutely does not require any of the measures Attorney General Kobach has advised the Kansas Department of Revenue and the Kansas Department of Health and Environment–two executive branch agencies that are totally outside of Mr. Kobach’s control–to put in place. These are of his own volition and interpretation, driven by his own extreme ideological perspective, not by requirements of the law, the constitution, or the best interests of Kansans.”
“We are more than prepared to push back on Kobach’s incorrect interpretation in the community, but also in the courts,” said Brett. “This does not change the fundamental rights of every transgender Kansan, and anyone experiencing harm as a result of SB 180 should contact us.”
Attorney General Kobach’s advisory opinion comes on the heels of a filing from his office last Friday in Foster v. Andersen. The motion asked the Court to release the state from the 2019 consent decree requiring that it issue corrected birth certificates with accurate gender markers to transgender Kansans because of the passage of SB 180.
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About the ACLU of Kansas: The ACLU of Kansas is the statewide affiliate of the national American Civil Liberties Union. The ACLU of Kansas is dedicated to preserving and advancing the civil rights and legal freedoms guaranteed by the United States Constitution and the Bill of Rights. For more information, visit our website at www.aclukansas.org.