Kris Kobach offers his opinion during a June 26, 2023, news conference about how Senate Bill 180 should be implemented. (Sam Bailey/Kansas Reflector)
TOPEKA — Kansas Attorney General Kris Kobach chastised Gov. Laura Kelly in a court filing Friday for recognizing the identities of transgender residents in a dispute over gender markers on driver’s licenses.
In a petition filed in Shawnee County District Court, Kobach asked the court to order the Kansas Department of Revenue’s Division of Vehicles to comply with Senate Bill 180, which took effect July 1, and issue driver’s licenses that reflect a resident’s sex at birth.
The new law is based on model legislation from a far-right group and attempts to strip transgender residents of their identity. The governor’s office said last week that state agencies would continue to issue documents that reflect an individual’s gender.
Quoting John Adams — “we have ‘a government of laws, and not of men’ ” — and invoking the Declaration of Independence, Kobach argued the governor must execute laws passed by the Legislature whether she likes them or not.
“She does not possess the power that English monarchs claimed prior to the ‘Glorious Revolution’ of 1688, namely, the power to suspend the operation of statutes,” Kobach wrote in the filing. “Indeed, the Declaration of Independence was in part a reaction to this practice.”
Kelly, a Democrat, defeated Kobach, a Republican, in the 2018 election for governor. Kelly won reelection in November, while Kobach was elected attorney general.
“While the attorney general has a well-documented record of wasteful and political lawsuits, Governor Kelly is faithfully executing the laws of the state and has directed her administration to as well,” said Brianna Johnson, a spokeswoman for the governor. “We look forward to the Kansas Department of Revenue being able to present its case in court.”
As secretary of state, Kobach lost a high-profile case in 2018 in which he failed to prove claims of voter fraud, was held in contempt of court, ordered by the judge to take additional legal classes, and left taxpayers with a costly bill.
The Legislature overrode a veto from Kelly to adopt SB 180, which supporters refer to as the Women’s Bill of Rights. Civil rights attorneys criticized the law, and transgender residents held multiple protests at the Statehouse.
Legal interpretations of the law are muddled, in part, because it attempts to define “male” and “female” through a flawed and narrow understanding of biology. Some feared the law could be used to restrict access to bathrooms or other gender-specific areas, but the law lacks an enforcement mechanism or penalty.
Under the law, gender is defined by reproductive systems. The law requires public documents to designate gender based on that definition.
The law and its supporters ignore the distinction between sex, which deals with biological characteristics, such as reproductive systems, and gender, which is a social and personal identity.
Kobach previously asked a federal court judge to reconsider a 2019 settlement in which the state agreed to let residents change the gender marker on their birth certificates. The Kelly administration said the Kansas Department of Health and Environment would continue to honor the 2019 agreement.
A banner across the top of the Kansas Department of Revenue’s website makes the state’s position clear: “The enactment of Senate Bill 180 on July 1 will not impact the longstanding procedures for obtaining, renewing, and updating a Kansas driver’s license as they pertain to gender markers.”
Kobach’s petition in Shawnee County acknowledges that state statute requires driver’s licenses to reference a person’s “gender,” but Kobach argues the term should be synonymous with “sex.” The driver’s license itself uses the word “sex” next to a person’s gender.
Mark Burghart, revenue secretary, and David Harper, director of vehicles, are defendants in the case.
“The attorney general reluctantly brings this action to force the governor’s subordinates … to do what the Women’s Bill of Rights clearly tells them they must do: issue driver’s licenses that reflect a person’s sex at birth and stop letting people select their sex designation at will,” Kobach wrote in the petition. “Someone must stand up for the law, even if the governor won’t.”
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