AG Kris Kobach tries to stop transgender Kansans from changing gender on birth certificates

Attorney General Kris Kobach's office on Friday asked a federal judge to undo a policy allowing transgender Kansans to change the gender marker on their birth certificates in the most concrete signal yet of how a sweeping new anti-trans law will be enforced.

The move is the first major action affecting transgender Kansans as a result of new language that will strictly define sex in state law using a person's reproductive anatomy at birth. The measure is set to take effect on July 1.

Senate Bill 180 has the impact of effectively counting transgender individuals for data collection purposes based on their sex assigned at birth, as well as requiring a whole host of state agencies to do the same. It also could restrict transgender individuals to using public facilities that align with their sex assigned at birth.

The implications of the law remain somewhat unclear but one of the most tangible impacts is likely to be on identification documents, such as birth certificates and driver's licenses.

In 2018, a group of transgender individuals sued the state, arguing existing policies that banned them from changing their birth certificates were unconstitutional. Federal courts have struck down similar rules in Idaho and Puerto Rico.

Shortly after Gov. Laura Kelly took office in 2019, the state agreed to a consent decree that saw them agree to “provide certified copies of birth certificates to transgender individuals that accurately reflect their sex, consistent with their gender identity, without the inclusion of information that would, directly or indirectly, disclose an individual's transgender status on the face of the birth certificate.”

In order to change their gender marker, Kansans must provide a copy of a passport or driver's license reflecting their gender identity or a note from a physician or mental health professional.

Kobach's office argued in a seven-page motion filed late Friday night that it "is impossible to comply with both the consent judgement and SB 180," with the new law marking a major sea change since the consent decree was filed four years ago.

"But now that the legislature has spoken, the agency is bound to execute the law as written," Chief Deputy Attorney General Daniel Burrows wrote in the filing.

Kobach's office noted they only sought to amend the parts of the consent decree that apply to prospective efforts by transgender Kansans to change their gender marker, something they deemed reasonable in light of SB 180.

And they also pointed to other court decisions as other states, notably Oklahoma and Tennessee, have passed laws banning gender marker changes, as more favorable than the Idaho or Puerto Rico cases.

"In short, the legal underpinning of the Consent Judgment has eroded in the intervening four years," Burrows wrote.

Before SB 180 takes effect, LGBT advocates have urged residents to pursue a birth certificate change before the law’s provisions kick in.

In a statement, the lead counsel Lambda Legal, the legal group that represented the four transgender individuals who challenged Kansas' original policy, said they would “vigorously oppose this gimmick by Attorney General Kobach … to nullify a binding, years-old federal judgment."

"In the meantime, lest there be any doubt, the state’s Office of Vital Statistics cannot refuse applications to correct gender markers," Omar Gonzalez-Pagan, Lambda Legal's legal counsel and health care strategist, said.

It is unclear when U.S. District Court Judge Daniel Crabtree might review the motion and issue a ruling.

This article originally appeared on Topeka Capital-Journal: Kris Kobach wants to block trans birth certificate changes in Kansas