Judge allows transgender Kansans to intervene in Kobach’s driver’s license lawsuit

TOPEKA — A district judge has granted a motion allowing transgender Kansans to intervene in Attorney General Kris Kobach’s lawsuit that would require Kansas driver’s licenses to list an individual’s sex assigned at birth instead of their gender.

On July 11, the American Civil Liberties Union of Kansas filed the motion to intervene in the lawsuit on behalf of five transgender Kansans. Shawnee County District Court Judge Theresa Watson’s decision Friday allows those directly affected by the policy to voice their concerns, broadening the case beyond Kobach and the Kansas Department of Revenue.

“We are gratified that the court has seen that our clients have a vested interest in the outcome of this case, and should be entitled to make their arguments,” said Sharon Brett, legal director of the ACLU of Kansas. “… This case is about trans Kansans’ well-being and their ability to live freely and without government-sanctioned persecution.”

Kobach in July asked the court to order KDOR’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.

Watson earlier issued a restraining order to stop all changes to gender markers on driver’s licenses until the lawsuit is completed. She presided over a hearing Wednesday with Brett; a KDOR attorney; and Tony Powell, solicitor for the attorney general, to determine whether the ACLU can intervene on behalf of transgender Kansans.

“The notion that they’re being silenced is ridiculous thinking. We are happy to answer their constitutional claims,” Kobach said Wednesday. “It’s just that procedurally, those should follow the determination of what the statute means. If the court were to agree with our interpretation of the statute, then at that point our posture shifts slightly and we are defending the Department of Revenue against the constitutional claims made by the interveners.”

The ACLU of Kansas posted on its website that if Kobach’s suit was successful, “irreparably harm” would be caused by an “unconstitutional effort” to ban and reverse gender markers on driver’s licenses.

Watson previously set a hearing date for Nov. 1, but in the order allowing the intervention, she said the proposed intervenors have potential to raise issues that will affect the schedule.

“The primary legal question remains the same: Does a state agency have to follow the plain meaning of a law passed by our duly-elected legislators?” Kobach said Friday. “With respect to the constitutional challenge raised by the ACLU, we look forward to rebutting their novel theories in court.”

Rose Saxe, deputy director of the ACLU’s LGBTQ & HIV Project, said she is thankful the court will hear from transgender Kansans.

“The policy change being pursued by the Attorney General is a degrading and discriminatory affront to transgender Kansans’ liberty and their safety, and the voices of transgender Kansans in defense of their personhood shall not and will not be silenced,” Saxe said.