Federal judge reopens Kansas transgender birth certificate case at Kris Kobach's request

Four years after ordering Kansas to allow transgender people to change their birth certificates, a federal judge has agreed to reopen a case because of a new state law.

Attorney General Kris Kobach in June requested that U.S. District Court reopen Foster v. Andersen, now Foster v. Stanek. The case had been terminated in June 2019 through a consent order where the Kansas Department of Health and Environment and Gov. Laura Kelly's administration agreed to provide transgender people with birth certificates consistent with their gender identity.

Kobach argued that the newly enacted Senate Bill 180, which went into effect July 1, requires all Kansas birth certificates to identify a person's sex as the one assigned at birth. The Republican-controlled Legislature overrode Kelly's veto of SB 180, known by supporters as the Women's Bill of Rights.

"The trans activists in this case attempted to nullify state law," Kobach said in a statement. "The Court held that SB 180 means what it says — birth certificates in Kansas must reflect biological sex. As long as I am attorney general, the laws of Kansas will be enforced as written."

Omar Gonzalez-Pagan, counsel and health care strategist at Lambda Legal, which secured the consent judgment in 2019, said in a statement that he was disappointed the judge reopened the order.

"Let us be clear, however, today's decision does not approve of SB 180, as interpreted by the Kansas Attorney General, but simply holds that the circumstances have changed," Gonzalez-Pagan said. "Indeed, the court went to great lengths to specify that it was not opining on SB 180's constitutionality."

Federal judge didn't address constitutionality of SB 180

District Judge Daniel Crabtree, an appointee of former President Barack Obama, wrote that Kobach properly invoked court rules and thus granted his motion. In doing so, he declined to rule on whether SB 180 is unconstitutional.

"The current motion presents a procedural question. ... Deciding the issue presented by the current motion doesn’t require the court to opine about SB 180's constitutionality," Crabtree wrote.

In the old court order, the state agreed that its old policy of not changing birth certificates for transgender people violated their constitutional rights.

"The court didn't reach this conclusion — the parties reached it, and then jointly asked the court to accept their conclusion," Crabtree wrote. "To say it simply, the quoted portion of the Consent Judgment doesn't represent a reasoned conclusion drawn by a court."

The four transgender people who were the original plaintiffs in the case opposed reopening it, arguing that the old order meant SB 180 was unconstitutional. Crabtree said the argument relied on a mistaken premise that a consent order resolved the substance of the issues.

"But federal courts don’t function as some sort of free-range monitor of state legislatures," Crabtree wrote. "Instead, they decide specific cases and controversies when — but only when—a case's pleadings present an actual case or controversy. Plaintiffs' threshold arguments rest on the premise that the court already has found that SB 180 violates the Constitution. It hasn't. And because the present motion presents a purely procedural question, it constitutes an inappropriate mechanism for resolving the constitutionality of SB 180."

Federal judge was wary of wading into federalism concerns

Kobach argued it would be impossible to enforce SB 180 without violating the consent judgement. Kelly argued in an amicus brief that there was another interpretation of SB 180 that would not conflict with the court order.

Crabtree said controversy is more appropriate for a state court and noted the ongoing Shawnee County District Court case about how SB 180 applies to driver's licenses.

"The court has genuine misgivings about inserting itself into the dispute about the meaning of the new Kansas law, SB 180," he wrote. "Absent some issue arising under federal law, a dispute about the meaning of Kansas law belongs in a Kansas state courthouse. And in parallel litigation pending right now in Kansas state court, Kansas state officials are litigating their disputes about SB 180's meaning."

Despite his wariness of wading into federalism concerns, Crabtree said he must in order to comply with legal standards. He then sided with Kobach's interpretation while stressing that the court's assessment of interpretations of the law was solely for the purpose of analyzing court rules on the motion at hand.

"The court's analysis and conclusion don't diminish the authority of Kansas courts to decide what Kansas law is," Crabtree wrote. "They properly retain that authority, and no one should read this Order to suggest otherwise."

The plaintiffs argued that transgender Kansans had relied on the consent judgment for years, and modifying it would go against the public interest because the Legislature enacted the law "as part of a campaign by anti-LGBTQ activists to erase the progress made by LGBTQ people over the past decades."

"Given the important federalism concerns at issue, the court concludes that an elected, accountable state legislature better can determine the public interest — subject, of course, to any applicable constitutional limitations," Crabtree wrote. "Indeed, a decree like the Consent Judgment is detrimental to the public interest when it risks using federal judicial power 'improperly [to] interfere with a State's democratic process.'"

What happens to Kansas birth certificates now?

It is not immediately clear what the effects of Crabtree's order will be.

"The Legislature decided that birth certificates must reflect biological reality, and they were quite clear in how they wrote the law," Kobach said said. "Today's decision is a rejection of the activists' and Governor Kelly's attempt to twist the English language beyond recognition. The Court has told the Governor what the law clearly means. We now expect the Governor to follow the law and cease changing birth certificates to something other than biological sex at birth."

The governor's office didn't indicate if it will now abide by Kobach's interpretation of the law.

"While today's decision is disappointing, it's not the end of the road," said Brianna Johnson, a spokesperson for the governor. "The state should not discriminate or encroach into Kansans' personal lives — it's wrong, it's bad for business, and it's exactly why we entered this agreement with the court years ago. We will review the decision, including how it impacts operations and potential next steps."

Lambda Legal is also assessing its options.

"The interpretation of SB 180 advocated by Kris Kobach and his ilk is as unlawful as the policies we first challenged in our lawsuit in 2018," said Gonzalez-Pagan. "Access to accurate identity documents is vital; without accurate identity documents, transgender people face even greater threats of discrimination, harassment, and even violence. We will evaluate next steps to determine how best to continue to secure the right of transgender Kansans to have identity documents consistent with who they are.”

Jason Alatidd is a statehouse reporter for the Topeka Capital-Journal. He can be reached by email at jalatidd@gannett.com. Follow him on Twitter @Jason_Alatidd.

This article originally appeared on Topeka Capital-Journal: Judge reopens Kansas case of birth certificates for transgender people