Kansas Must Undo Gender Changes for Trans People in State Records, AG Says

A new Kansas law requires the state to reverse any previous gender changes in its records for trans people's birth certificates and driver's licenses while also preventing such changes going forward, the state's conservative Republican attorney general declared Monday.

Attorney General Kris Kobach also said public schools' records for students must list them as being the gender they were assigned at birth, whether or not teachers and staff recognize their gender identities.

Democratic Gov. Laura Kelly's office said she disagrees with Kobach's views, though it did not say whether state agencies under the governor's control would follow or defy them, setting up the possibility of a court fight. In 2019, a federal judge began requiring Kansas to allow transgender people to change their birth certificates to settle a lawsuit over a no-change policy.

"The attorney general must be off his rocker," said Omar Gonzalez-Pagan, an attorney for Lambda Legal, which represented the four Kansas residents. "This was a bunch of bombast by an attorney general engaging in politics."

A formal but non-binding legal opinion issued Monday by Kobach and his statements during a Statehouse news conference confirmed that the new law, if fully in effect, legally would erase transgender people's gender identities. Opponents predicted as much before the Republican-controlled Legislature enacted the law over Kelly's veto, but the debate focused mostly on keeping transgender people from using restrooms and other facilities in line with their gender identities.

The new law defines a person's sex – which can conflict with gender identity – based on a person's "biological reproductive system" at birth. A female has a system "developed to produce ova" while a male has a system "developed to fertilize" that ova. It says "important governmental objectives" of protecting people's health, safety and privacy justify sex-segregated spaces.

"You can choose whatever name you want. You can choose to live however you want," said state Sen. Renee Erickson, of Wichita, one of three Republican lawmakers who joined Kobach during his news conference. "That does not make you a woman."

If Kansas didn't allow transgender people to change their birth certificates – its policy before the judge's 2019 order – it would be among only a few states. Federal judges earlier this month upheld Oklahoma and Tennessee policies against such changes, and Montana could be sued in state courts over a 2022 law.

Micah Kubic, the executive director of the American Civil Liberties Union of Kansas, said state agencies are not required to adopt Kobach's views and accused the attorney general of rushing to "impose his own stamp of extremism."

The state hasn't provided numbers for how many Kansas residents have changed the gender on either their birth certificates or their driver's licenses during the past four years. Kobach put the number for birth certificates at more than 100. Kelly's administration has not said how it will respond to the law.

Adam Kellogg, a 20-year-old transgender University of Kansas student, said Kobach's views, if adopted by the state, would mean that transgender people who need to verify their identities would see conflicts between their documents and gender identities "get very tangled very quickly." He said transgender people could be forced to out themselves, jeopardizing their safety.

"This is government imposition in a way that should be more concerning to more people," Kellogg said.

Kobach stressed that transgender people would not have to surrender documents in their possession. They just wouldn't be correct, legally.

He said he is not yet pressing for state action on birth certificates to give a federal judge a chance to grant his request to cancel the 2019 order. He argued that the state law takes precedent over what he described as a judge signing off on a legal settlement – an idea others dispute.

"The Legislature has spoken," Kobach said during his news conference. "The governor's staff and the governor's agencies cannot act as if the Legislature did not override her veto."

In a brief statement Monday, Kelly spokesperson Zach Fletcher said the administration had discussions with Kobach's office but saw the federal judge's 2019 order as "the appropriate resolution."

Fletcher added that the governor's office would not comment further because of "the impending litigation." It wasn't clear whether Kelly's administration expects to defy Kobach and him to sue, or whether the administration will go to court itself.