TOPEKA, Kan. – A federal judge ruled Thursday that Kansas officials are no longer required to change transgender people’s birth certificates so the documents reflect their gender identities, a loss for those who fought for that ability and leaves questions on how the state will respond.
Since 2019, a federal consent agreement required Kansas officials to change a person's gender identity on their birth certificate when asked. But Republican Attorney General Kris Kobach asked the court to stop enforcing that agreement because of a new state law that defines male and female as the sex assigned at birth.
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Judge Daniel Crabtree granted Kobach’s request and changed the federal agreement to remove the requirement. However, Crabtree said it will ultimately be up to a state court to decide whether the new law is constitutional. The new law, which took effect July 1, is among efforts nationwide to roll back trans rights.
Montana, Oklahoma and Tennessee already bar such birth certificate changes. Kansas is for now among a few states that don’t let trans people change their driver’s licenses to reflect their gender identities. That’s because of a separate state-court lawsuit Kobach filed last month.
Luc Bensimon, a Topeka trans man who was one of the original plaintiffs who fought to change their birth certificates, said he was having trouble making sense of Thursday's ruling and wonders whether the state will try to forcefully reverse the gender change on his birth certificate.
“I’m not OK with that,” Bensimon said. “And I don’t really have any words right now. ... It’s just -- I’m not okay with that.”
“I’m pretty upset right now. I’m just trying to figure this out,” Bensimon added.
But his lawyer, Omar Gonzalez-Pagan, said he doesn't think the ruling will have any effect on birth certificates that were already changed — only new ones. And he said it's not clear how Democratic Gov. Laura Kelly will respond and what she will tell state agencies to do.
The Kansas law defines male and female based on a person’s “biological reproductive system,” applying those definitions to any other state law or regulation. The Republican-controlled Legislature enacted it over Kelly’s veto, but she announced shortly before it took effect that birth certificate changes would continue, citing opinions from attorneys in her administration that they could.
Kelly’s office didn’t immediately respond to the ruling Thursday.
Gonzalez-Pagan said he believes the state agency could continue changing genders on birth certificates unless Kobach goes back to court and gets a separate order telling officials to stop making those changes.
A state court will ultimately decide if the law defining gender will stand.
“The court has genuine misgivings about inserting itself into the dispute about the meaning of the new Kansas law, SB 180," Crabtree said in his ruling. “Absent some issue arising under federal law, a dispute about the meaning of Kansas law belongs in a Kansas state courthouse.”
Crabtree's ruling removes part of a 2018 settlement Kelly's administration agreed to with four transgender people who challenged a previous Republican no-changes policy. The settlement came only months after Kelly took office in 2019 and required the state to start changing trans people’s birth certificates. More than 900 people have done so since.
“The trans activists in this case attempted to nullify state law,” Kobach said. “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. The Legislature decided that birth certificates must reflect biological reality, and they were quite clear in how they wrote the law."
Transgender Kansas residents and Kelly argued that refusing to change birth certificates would violate rights protected by the U.S. Constitution, something Crabtree said in his brief order approving the settlement four years ago. Kobach argued that the settlement represented only the views of the parties and the new state law represents a big enough change to nullify the settlement’s requirements.
In the state-court lawsuit over driver’s licenses, a district judge has blocked ID changes until at least Nov. 1.
The new Kansas law was part of a wave of measures rolling back trans rights emerging from Republican-controlled statehouses across the U.S. this year.
The law also declares the state’s interests in protecting people’s privacy, health and safety justifies separate facilities, such as bathrooms and locker rooms, for men and women. Supporters promised that would keep transgender women and girls from using women’s and girls’ facilities — making the law among the nation’s most sweeping bathroom policies — but there is no formal enforcement mechanism.
As for birth certificates, Kobach argued in a recent filing in the federal lawsuit that keeping the full 2019 settlement in place is “explicitly anti-democratic” because it conflicts directly with the new law.
“To hold otherwise would be to render state governments vassals of the federal courts, forever beholden to unchangeable consent agreements entered into by long-gone public officials,” Kobach said.
In 2018, Kelly defeated Kobach, then the Kansas secretary of state, to win her first term as governor. Kobach staged a political comeback by winning the attorney general’s race last year, when Kelly won her second term. Both prevailed by narrow margins.
The transgender Kansas residents who sued the state in 2018 argued that siding with Kobach would allow the state to return to a policy that violated people’s constitutional rights.
In one scathing passage in a recent court filing, their attorneys asked whether Kobach would argue states could ignore the U.S. Supreme Court’s historic Brown v. Board of Education of Topeka ruling in 1954 outlawing racially segregated schools if their lawmakers simply passed a new law ordering segregation.
“The answer is clearly no,” they wrote.
The plaintiffs' attorney, Gonzalez-Pagan, said he's disappointed in the ruling but believes the law will be found unconstitutional.
“The interpretation of SB180 advocated by Kris Kobach and his ilk is as unlawful as the policies we first challenged in our lawsuit in 2018," said Gonzalez-Pagan, who is with Lambda Legal. “Access to accurate identity documents is vital; without accurate identity documents, transgender people face even greater threats of discrimination, harassment, and even violence.”
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Josh Funk reported from Omaha, Nebraska. Follow John Hanna on the X platform: https://twitter.com/apjdhanna.