Kansas lawmakers botched the drafting of a new anti-trans law, agency attorney 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 legislators botched the drafting of a new law aimed at preventing transgender people from changing how their sex is listed on their driver's licenses, a state agency's lawyer argued in a court filing made public Tuesday.

The attorney in Democratic Gov. Laura Kelly's administration made that argument in asking a state court judge to lift an order barring such changes because of a lawsuit filed by Republican state Attorney General Kris Kobach. Five transgender Kansas residents also want the order revoked, arguing in their own court filings that their constitutional rights are being violated.

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Kelly announced last month that the state would continue changing transgender people's driver's licenses to reflect their gender identities, despite an new anti-transgender rights law that took effect July 1. If Kobach's lawsuit is successful, Kansas would become one of the few states that don’t allow such changes.

“It is a poorly written law,” said Adam Kellogg, a 20-year-old University of Kansas student, one of the five transgender people, who are seeking to intervene in Kobach's lawsuit. “It was meant to be hateful.”

Kansas Department of Revenue attorney Ted Smith argued that the new law conflicts with another governing what appears on driver's licenses. The department's motor vehicles division issues driver's licenses, and Smith said the division still must follow the older law because it applies specifically to driver's licenses. The new law does not mention them.

Kobach filed a lawsuit in state court on Friday against the department's head and the motor vehicles division's director.

District Judge Teresa Watson issued an order Monday directing the state to stop allowing such changes, acting at Kobach's request and without a hearing. The order expires July 24, though the judge could extend it. Smith's filing, dated Monday, asked Watson to rescind her order, and she set a Zoom hearing for Wednesday.

“There is a remedy available to the Legislature," Smith wrote in his filing, saying lawmakers can consider changing the driver's license law next year. They have adjourned for this year.

The Department of Revenue says more than 500 people have changed the sex listing on their driver's licenses since July 2019, including 172 last month alone.

The new Kansas law defines male and female based on the sex assigned a person at birth for “any” other law or state regulation — preventing legal recognition for transgender people’s gender identities. It was part of a wave of anti-transgender legislation in Republican-led statehouses across the U.S., and the GOP-controlled Legislature enacted it over Kelly's veto.

The Kansas driver’s license law says each application for a license must include a person’s “gender,” even though the listing on the license is “sex.” Smith says that language has been in place since 2007 and was clarified by a 2011 policy that Smith himself outlined in a memo to driver’s license examiners.

Two states that don’t allow changes for transgender people, Montana and Tennessee, have specific provisions regarding driver’s licenses.

But Kellogg and the other four transgender people argue that prohibiting driver's license changes violates their right to bodily autonomy. The Kansas Supreme Court declared in a 2019 decision protecting abortion access that the state's Bill of Rights grants such a right.

“Kansans expect the State of Kansas, and the Attorney General, to protect them, not persecute them,” ACLU attorneys wrote at the start of a court filing Tuesday.

Kobach said last month that the new law not only prevents changes in the sex listings for driver's licenses but also requires the state to undo previous changes in its records. He said in a memo filed with Watson on Friday in Shawnee County, home to the state capital of Topeka, that a license must list “a person's sex at birth, not some other self-chosen identifier.”

He said the motor vehicles division is refusing to comply with the new law and, "The Division is open about its refusal.”

The new Kansas law borrows language from a proposal from several national anti-transgender organizations. Smith said the language was not “tailored to the specifics of Kansas law" and didn't address the “historical use of ‘gender’ as an identity marker for driver's licenses.”

Kobach said the new law also applies to birth certificates, but the settlement of a 2018 federal lawsuit over a previous no-changes policy requires the state to allow changes in those documents. A federal judge's order enforcing it remains in effect. More than 900 people have changed their birth certificates since July 2019, the state says.


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

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