In a case that pits Republican Attorney General Kris Kobach against Democratic Gov. Laura Kelly's administration, Kansas appellate judges are weighing in on the issue of gender marker changes on drivers licenses for transgender people.
The Kansas Court of Appeals on Monday in Topeka heard oral arguments over a law passed in 2023 that strictly defines sex based on reproductive anatomy at birth. That law, known as Senate Bill 180 and dubbed by supporters as the "women's bill of rights," was enacted by the Republican supermajorities in the Kansas Legislature by overriding Kelly's veto.
Kobach interpreted the law to ban gender marker changes on drivers licenses. But the Kansas Department of Revenue, which is part of the Kelly administration, does not believe that the law applies to drivers licenses.
The appellate court is being asked by the Kelly administration to overturn a decision by Shawnee County District Court Judge Teresa Watson that sided with Kobach's position on the law. Watson in March issued a temporary injunction against the Revenue Department. Meanwhile, the court is also considering a separate appeal from the same case where the ACLU argues Kobach's position violates the constitutional rights of transgender people.
"What the real argument here is we have a clear and unambiguous statement from the Legislature through Senate Bill 180 that this is how you define man and a woman, this is how you define sex, and that that's synonymous with gender," said solicitor general Anthony Powell. "It's a clear directive, it's unambiguous and that the Department of Revenue has the obligation to follow it."
"It is not appropriate for a state to legislate discrimination," said Pedro Irigonegaray, a private attorney representing the KDOR officials sued by Kobach. "It is not appropriate for a state to deny transgender people the right to dignity."
The panel of Chief Judge Sarah Warner and Judges Stephen Hill and Karen Arnold-Burger took the matters under advisement, meaning a decision will be issued later.
Kris Kobach sued Laura Kelly administration
The lawyers and judges acknowledged the unique situation of having two state government parties opposing each other.
Arnold-Burger called it "a very strange case ... because we have two state entities that are battling it out as to how this law applies." Warner said that makes it "difficult to track the state's position."
"It's an uncomfortable position to be in where you have to sue a state agency to get them to comply with the law," said Powell, who is a retired appellate judge. "That's what we had to do here, and that doesn't happen very often. ... It's pretty rare for us to have to go to court to tell an agency you need to follow the law, but that was our duty, and that's what we're doing in this case. The district court agreed with us with regard to the interpretation."
Transgender Kansans cannot change gender markers on drivers licenses
Between 2011 and the issuance of a temporary restraining order in July 2023, the state approved 552 gender marker changes on drivers licenses. That is no longer an option for transgender Kansans because of Watson's temporary injunction.
ACLU attorney Julie Murray said that since the state was enjoined from changing gender markers, "transgender Kansans, including my clients, seeking licenses have been forced to obtain, carry and use driver's licenses that disclose their sex assigned at birth, rather than the gender that they live as in their communities and know themselves to be."
When Watson ruled in favor of Kobach, she wrote that "there is a substantial likelihood the Attorney General will prevail. Kobach called it "a victory for the rule of law and common sense," while D.C. Hiegert, an ACLU attorney, said the ruling "will result in transgender people experiencing harassment, denial of services, or worse."
What a small win and big win could look like
At this stage of the litigation, the appellate court is reviewing the temporary injunction.
"We are not here to determine, ultimately, what the interpretation of the statute is," Arnold-Burger said. "All we're here is to determine, under our standard for preliminary injunctions, is are you likely to succeed on this."
If the court sides with Kobach's office, the temporary injunction will stay in place, meaning transgender people won't be able to change their gender markers on their drivers licenses.
If the court rules against Kobach, which would require a finding that his office failed to established irreparable harm, they could overturn the temporary injunction. Transgender people would then be able to change their gender markers as the litigation continues.
However, there may be an opportunity for a bigger win for the Kelly administration and LGBTQ rights activists.
"The court can do away with this entire case," Irigonegaray said, "by concluding that Senate Bill 180 is inapplicable to the Department of Revenue's drivers licenses because it's unambiguous, it does not address gender, it addresses sex."
The court could also get to the constitutional rights arguments raised by the ACLU, but it also could avoid those.
Did the judges give any indication how they will rule?
While the judges still analyzed the constitutional rights arguments, they appeared less focused on them — particularly Hill, who questioned whether "we really need to get into all of those details." Instead, he and Arnold-Burger both appeared especially focused on whether there is irreparable harm, which is a requirement for a temporary injunction.
Arnold-Burger also appeared skeptical of whether a temporary injunction is appropriate, describing injunctions as "extraordinary remedies." She referred to the years before SB 180 as the "status quo," which is significant because Kobach and Watson considered the status quo to be after SB 180 became law.
"There's been 17 years of status quo," Arnold-Burger said. "What's the urgency that should require that a court intervene and say, whoa, stop."
Powell said that the new law "set the new reality here."
"Let's remember that this law was passed over the governor's veto, so you're talking two-thirds majorities in both houses of the Legislature," he said. "So we're talking overwhelming support for this law, and it's an emphatic view expressed by the Legislature that sex means biological sex at birth."
Arnold-Burger suggested that Powell's argument amounts to "saying that whenever there's a statute passed that has a supermajority of legislators, then we really shouldn't pay any attention as to what another party on the other side of the case may view as an improper legislative authority."
Why abortion rights case could boost transgender rights
The ACLU argues that banning gender marker changes violates the constitutional rights of transgender people. They point to personal autonomy protections, relying on the Kansas Supreme Court's landmark abortion rights decision from 2019. Watson had rejected that argument, calling it "an unreasonable stretch."
"By forcing someone who is transgender to have a license with a gender marker that reflects only their sex assigned at birth and not how they identify ... it is essentially taking the way that you would move about in the world, present yourself in the world, and negating it through a government document," Murray said.
"No one's autonomy is being interfered with here," Powell said. "Transgender individuals can live as they want to, but the state has said we want accurate and consistent and reliable data on our drivers license."
Is there irreparable harm from not following the law?
Irigonegaray argued that the lower court was wrong to conclude that the attorney general had proven irreparable harm. Powell disagreed, primarily emphasizing arguments that "it's irreparable harm for a state agency to not obey the law."
"That's a grievous violation," he said. "It's intolerable, and it's the duty of a state agency to follow the law. That's our biggest irreparable harm."
Powell said that overturning the injunction would mean the appellate court is saying "we're going to allow the lawlessness to continue."
Arnold-Burger questioned whether it is irreparable harm if the agency disagrees about the interpretation.
"That argument," Irigonegaray said, "is grounded on the proposition that the law is applicable. The Department of Revenue's position is that that law is not applicable, therefore the department is not violating the law."
Powell also argued that there is harm to law enforcement, citing a situation mentioned in testimony by Shawnee County Sheriff Brian Hill where because of a subject's transgender status they did not as quickly identifying their criminal history.
Arnold-Burger seemed skeptical, questioning "what harm resulted" while noting that the subject was still arrested and jailed. She also noted that other law enforcement agencies presented evidence of "no impact" over the past several years of allowing gender marker changes.
Irigonegaray described that argument as "a scare tactic used by the attorney general," and said "there wasn't a single, not one iota of evidence, to support that allegation."
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.