News & Commentary

Court allows transgender Kansans to change gender markers on driver's licenses

June 13, 2025

Transgender Kansans can once again change their gender marker on their driver's licenses.

The Kansas Court of Appeals on June 13 reversed a decision by a Shawnee County judge that blocked the Kansas Department of Revenue from changing gender markers.

"Today, we reverse the district court's issuance of the injunction," the appellate judges wrote. "The KDOR is free to proceed as it has since at least 2007 until a determination is made on the merits of the AG's claim either in this litigation or subsequent litigation that may follow."

Trans rights case pits Republican AG against Democratic governor

The case pits Republican Attorney General Kris Kobach against the administration of Democratic Gov. Laura Kelly, as well as transgender Kansans represented by the ACLU of Kansas. Kobach and the Kelly administration have different interpretations of a 2023 law known as Senate Bill 180 that strictly defines sex based on reproductive anatomy at birth.

SB 180 is also known as the Women's Bill of Rights and was enacted by the Republican supermajorities in the Kansas Legislature by overriding Kelly's veto.

The text of the law is a little over one page and is lacking in details, such as making no explicit reference to driver's licenses or gender. While Kobach argued that SB 180 applies to state-issued identification, the Kelly administration disagreed.

Shawnee County judge had blocked gender marker changes

Between 2011 and 2023, the state approved 552 gender marker changes on drivers licenses. That stopped in July 2023, when Shawnee County District Court Judge Teresa Watson issued a temporary restraining order against the Revenue Department.

Then in March 2024, Watson issued a temporary injunction against KDOR, writing that "there is a substantial likelihood the Attorney General will prevail in his effort to enforce" the new law.

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"In sum, the language of the statute is clear," Watson wrote. "K.S.A. 77-207 applies to require the sex designation on driver's licenses and the corresponding information in the KDOR database to identify the licensee's biological sex as male or female at birth."

Appellate court reverses Shawnee County decision

The appellate court heard oral arguments in January. There, lawyers and judges questioned whether Kansas lawmakers knew what they were doing when writing a first-in-the-nation law strictly defining sex. They openly suggested that if lawmakers had intended for SB 180 to apply to driver's licenses, then the Legislature could amend the law during the 2025 session.

Now, five months later and without the Legislature amending the law, the three-judge panel unanimously ruled that Kobach's office failed to meet all of the prerequisites for a temporary injunction. The judges on the panel were Chief Judge Sarah Warner and Judges Stephen Hill and Karen Arnold-Burger.

"The State failed to meet its burden to establish the invocation of this extraordinary remedy," Arnold-Burger wrote for the court. "Because of the district court's abuse of discretion the KDOR has been unable to issue reclassifications of gender designations on Kansas driver's licenses for two years while this litigation languished."

In the 56-page opinion, the appellate judges said Watson made both an "error of fact" and an "error of law," and she abused her discretion.

A key issue in the appellate court's ruling was the attorney general failed to established irreparable harm, which is a requirement for a temporary injunction.

The appellate judges said the attorney general "failed to establish irreparable harm to support the issuance of a temporary injunction and has failed to show a substantial likelihood that he will prevail on the merits."

Attorney general argued inherent irreparable harm

A significant part of the attorney general's argument was the state would suffer an inherent irreparable harm without an injunction because KDOR was refusing to comply with the law.

"That's a grievous violation," solicitor general Anthony Powell said during appellate oral arguments. "It's intolerable, and it's the duty of a state agency to follow the law. That's our biggest irreparable harm."

The appellate judges said Kobach "puts most of his eggs in this basket."

"In other words, the AG asks us to find, as a matter of law, that anytime an AG believes that a person or entity is violating a duly enacted law, we must find irreparable harm sufficient to support the issuance of an injunction," Arnold-Burger wrote.

But the appellate court said there was no supporting authority for that approach.

The judges said two agencies within the executive branch of government have two competing interpretations of a law, and Kobach was relying in-part on his own formally attorney general opinion. While an attorney general opinion can be considered persuasive, it is not binding under Supreme Court precedent.

"The district court committed a legal error by concluding, without any support, that the mere fact that the AG is alleging a violation of a duly enacted state law he has established irreparable harm to support the issuance of an injunction," Arnold-Burger wrote.

Did law enforcement face irreparable harm?

Another significant part of the attorney general's case was an argument that law enforcement face irreparable harm. The appellate judges said Watson's ruling "put most of its eggs in this basket."

During arguments in Shawnee County District Court, Kobach put Shawnee County Sheriff Brian Hill on the stand, as well as an employee of the Johnson County Sheriff's Office, to argue that law enforcement use the sex designated on state-issued IDs to identify suspects and house jail inmates. Other officers also provided testimony.

"Compliance with stated legal requirements for identifying license holders is a public safety concern," Watson wrote.

"The problem with the district court's finding," Arnold-Burger wrote, "is that the AG presented no evidence to support this claimed injury beyond unsubstantiated speculation."

Arnold-Burger noted that KDOR has allowed gender marker changes on driver's licenses "since 2007, through 5 governors and at least 16 different legislative sessions."

"No one was able to bring forward any instance of the feared harm of misidentification of criminals in the last 16 years or even the potential that it could be a problem," she wrote. "Instead, the evidence was overwhelming that there was no harm."

In the case of Hill's testimony, Arnold-Burger noted "when Sheriff Hill was asked by the AG whether he had any evidence of any specific incident in the last 32 years while an officer or sheriff, wherein an officer had an issue with identification related to a transgender person, his answer was an unequivocal, 'No.'"

The appellate court said Watson "committed an error of fact by concluding that there was evidence — any evidence beyond mere speculation — to support a finding that law enforcement would be immediately hindered in the identification of suspects, victims, wanted persons, missing persons, detainees, and others if the driver's license did not display the driver's sex assigned at birth."

What comes next?

The lawsuit remains ongoing. It will now go back to Shawnee County District Court, unless the attorney general's office appeals to the Kansas Supreme Court.

The Court of Appeals did not decide all issues that were presented to it, most significantly arguments over the constitutionality of SB 180. At least some of the issues will be reconsidered by the district court.

In remanded the case back to Shawnee County for further proceedings, the appellate court ordered there to be a new judge because Watson's decision "has already stated its opinion on the merits of the Intervenors' constitutional claims."

What is the reaction to the appeals court ruling?

The ACLU of Kansas represents transgender people who intervened in the case.

"This decision recognizes that the Attorney General had not shown any harm at all in allowing transgender Kansans the same personal autonomy, privacy, and dignity that all Kansans deserve," said D.C. Hiegert, an ACLU attorney, said in a statement to The Capital-Journal. "Being required to use a license with the wrong gender marker has already meant that transgender Kansans have been outed against their consent in their daily lives. We commend the incredible courage and sense of community our clients have had in standing up to this attack on all of our rights."

Spokespeople for the attorney general's office, governor's office and Department of Revenue didn't immediately respond to requests for comment.

(This story was updated to add new information)

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.

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Court allows transgender Kansans to change gender markers on driver's licenses

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