A federal judge ruled Thursday that Kansas officials are no longer required to change a person's birth certificate. The documents will only reflect a person's gender at birth.
U.S. District Judge Daniel Crabtree approved state Attorney General Kris Kobach's request to block the changes because of a new state law that took effect in July. Kansas joins Montana, Oklahoma and Tennessee in barring such birth certificate changes.
Kansas is for now also among a number of states that don't allow changes to driver's licenses to reflect their prefered gender identities. That's due to a separate state-court lawsuit Kobach filed last month. Both efforts are responses to the new state law, which took effect July 1.
The law defines male and female as the sex assigned at birth, based on a person's "biological reproductive system," applying those definitions to any other state law or regulation. The Legislature enacted it over Gov. Laura 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.
The judge agreed to modify the consent agreement that allowed Kansans to modify their birth certificates, but said it will ultimately be up to a state court to decide whether the new law is constitutional.
"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."
In federal court, Kobach succeeded in lifting a policy imposed when Kelly's administration settled a 2018 lawsuit from four people challenging a previous no-changes policy. The settlement came only months after Kelly took office in 2019 and required the state to start changing 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 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 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 lead attorney for those residents, Omar Gonzalez-Pagan, said she's disappointed in the ruling but believes the law will be found unconstitutional.
