Kansas must stop changing trans people's sex listing on driver's licenses, judge says

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Kansas Attorney General Kris Kobach answers questions during a news conference about a new state law that defines male and female in state law so that transgender people can't change their driver's licenses and birth certificates to reflect their gender identities, Monday, June 26, 2023, at the Statehouse in Topeka, Kansas. The number of people making those changes jumped more than 300% this year ahead of the new law taking effect. (AP Photo/John Hanna)

TOPEKA, Kan. – Kansas must stop allowing transgender people to change the sex listed on their driver’s licenses, a state-court judge ordered Monday as part of a lawsuit filed by the state’s Republican attorney general.

District Judge Teresa Watson's order will remain in effect for up to two weeks, although she can extend it. But it's significant because transgender people have been able to change their driver's licenses in Kansas for at least four years, and almost 400 people had done it by the end of June. For now, Kansas will be among only a few states that don't allow any such changes.

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The judge issued the order three days after Attorney General Kris Kobach sued two officials in Democratic Gov. Laura Kelly's administration. Kelly announced last month that the state's motor vehicles division would continue changing driver's licenses for transgender people so that their sex listing matches their gender identities.

Kobach contends that a law, which took effect on July 1, prevents such changes and requires the state to reverse any previous changes in its records. It defines “male” and “female” so that Kansas law does not recognize the gender identities of transgender, nonbinary or gender non-conforming people. The Republican-controlled Legislature enacted it over Kelly’s veto.

Watson wrote in her brief order that for the motor vehicles division to keep making changes for transgender people would cause “immediate and irreparable injury.” Driver's licenses remain valid for six years, and Watson noted Kobach's argument that licenses “are difficult to take back or out of circulation once issued.”

“Licenses are used by law enforcement to identify criminal suspects, crime victims, wanted persons, missing persons and others,” Watson wrote. “Compliance with state legal requirements for identifying license holders is a public safety concern.”

Transgender Kansas residents have said in interviews that a mismatch between their identities and their driver’s licenses can complicate getting through airport security, interacting with police or even using credit cards. Jenna Bellemere, a 20-year-old University of Kansas student, said a mismatch also outs transgender people like her during interactions with others, creating the possibility of harassment.

As for Watson and legislators who enacted the new law, Bellemere said, “Whether intentionally or not, they never seem to consider the experiences and needs of the transgender population of the state. It’s frustrating.”

Watson’s order did not address how her directive might play out in transgender people’s daily lives.

The governor's office said it was working on a response to the order. Kelly won her first term as governor in 2018 by defeating Kobach, who was then the Kansas secretary of state. He in turn staged a political comeback last year by winning the attorney general’s race as she captured a second term — both of them by slim margins.

The governor's office has said attorneys at the division of vehicles' parent agency, the Kansas Department of Revenue, do not believe allowing transgender people to change their driver's licenses violates the new law.

Four times as many people a month have changed their driver’s licenses this year than in previous years. Such changes accelerated in May and June as LGBTQ+ rights advocates encouraged people to do it ahead of the new law.

Taryn Jones, vice chair and lobbyist for the LGBTQ+ rights group Equality Kansas, acknowledged the concern that allowing the state to keep making changes would make it more difficult for law enforcement, but asked, “How many criminals are you having that are trans?”

Jones also said potential problems for law enforcement should be weighed against the harm to the mental health and safety of transgender people who don't have licenses that match their gender identities.

Even with a raft of measures targeting transgender people in statehouses across the U.S. this year, Kansas would be atypical for not allowing them to change sex or gender markers on birth certificates, driver’s licenses or either. Montana and Tennessee also have policies against changing either document, and Oklahoma has a policy against changing birth certificates.

Kobach has argued that the new Kansas law also prevents transgender people from changing the listing for their sex on their birth certificates, but the lawsuit he filed Friday doesn’t address those documents. The settlement of a 2018 federal lawsuit requires Kansas to allow transgender people to change their birth certificates, and more than 900 people had done it by the end of June.

The new Kansas law defines a person’s sex as male or female, based on the “biological reproductive system” identified at birth, applying that definition to any state law or regulation.

It also says that “important governmental objectives” of protecting people’s privacy, health and safety justify single-sex spaces such as bathrooms and locker rooms. However, that part of the law contains no enforcement mechanism.


Follow John Hanna on Twitter: https://twitter.com/apjdhanna

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