Kansas Can Refuse to Change Trans Residents' Birth Certificates: Court

Kansas no longer has to change the gender on birth certificates for transgender residents who request this, a federal judge ruled Thursday.

U.S. District Judge Daniel Crabtree vacated parts of an agreement the state had reached in 2019 with trans Kansans who had sued over the state’s refusal to issue birth certificates that reflect their gender identity. Crabtree had approved the agreement. Since then, they have been able to obtain the updated certificates.

But several state officials, represented by Kansas Attorney General Kris Kobach, a Republican, sought to have that agreement lifted in light of the state’s passage of a law that defines gender as binary and fixed at birth. Gov. Laura Kelly, a Democrat, vetoed that legislation, Senate Bill 180, but lawmakers overrode her veto.

Kansas Department of Health and Environment Secretary Janet Stanek, State Registrar Kay Haug, and Director of Vital Statistics Jason Mathewson argued that they could not comply with both the agreement, known as a consent judgment, and SB 180. Kelly has contended that the two measures are not in conflict, as SB 180 does not explicitly prohibit the amending of birth certificates.

Kobach praised Crabtree’s decision. “The trans activists in this case attempted to nullify state law,” he said in a statement, as reported by The Topeka Capital-Journal. “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,” Kobach added. “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.”

Crabtree did not rule on the validity of SB 180, however, and he noted that a case on this issue is pending in a state-level court as it relates to gender markers on 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.”

Both Kelly and lawyers for the trans Kansans expressed dismay at Crabtree’s order and said they are considering what steps to take next. “While today’s decision is disappointing, it’s not the end of the road,” Kelly spokesperson Brianna Johnson told the Capital-Journal. “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.”

The lead lawyer for the trans plaintiffs, Omar Gonzalez-Pagan, counsel and health care strategist at Lambda Legal, issued this statement: “We are disappointed that the court has saw fit to reopen the consent judgment, which has been in place for four years and operated without incident. 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. Indeed, the court went to great lengths to specify that it was not opining on SB 180’s constitutionality. 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. 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.”

Pictured: Kansas Attorney General Kris Kobach