Attorney General Kris Kobach said the policy change would "reflect scientific fact." (Sam Bailey/Kansas Reflector)
TOPEKA — The state will no longer recognize transgender Kansans’ identities, reversing birth records back to assigned sex at birth and halting future modifications of birth certificates following a federal judge’s ruling.
“Kansas birth certificates are state records that must reflect scientific fact as recorded by the doctor at the time of birth. I am pleased that KDHE is now complying with Kansas law in the wake of the recent federal district court order,” said Kansas Attorney General Kris Kobach.
The Kansas Department of Health and Environment will no longer change gender markers on birth certificates. According to the newly set out KDHE policy, birth certificates that have already been changed will be considered valid — but in cases where “a certified copy of that record is requested, then the new copy must reflect the sex assigned at birth.”
Gov. Laura Kelly, who had previously pushed back on this interpretation of the law, said she would comply with the decision.
“As I’ve said before, the state should not discriminate or encroach into Kansans’ personal lives — it’s wrong, it’s bad for business, and it’s why I opposed SB 180 from the start,” Kelly said. “However, I am committed to following the law. Agencies will comply with the courts’ orders and work to implement SB 180 as appropriate.”
The change comes after several legal battles. Kobach, the top legal officer in the state, filed a June motion in federal court to overturn legal protections for gender marker changes on birth certificates following the passage of an anti-transgender law. Kobach argued the law, Senate Bill 180, called the women’s bill of rights by supporters, conflicted with a 2019 agreement by the state to allow amended birth certificates for transgender Kansans.
SB 180 defines women by reproductive ability and uses an extreme right-wing group’s explanations of gender and sex to classify Kansans as either women, men or, in a third category, disabled — a definition that critics have condemned as not science-based and offensive. The Republican-dominated Legislature overrode Kelly’s veto of the legislation and ignored protests against the bill during the first stages of debate.
The original order ruled that not allowing gender marker changes violated the equal protection clause and the due process clause of the 14th Amendment. But SB 180, which was implemented in July, requires state agencies to collect statistics based on sex assigned at birth.
During court arguments, attorneys for the original plaintiffs argued the new law doesn’t conflict with the consent judgment because state agencies could gather vital statistics in accordance with the statute and continue to issue modified birth certificates. But in late August, a federal judge granted Kobach’s request, clearing the way for birth certificate reversals.
Kobach has also targeted gender markers on drivers’ licenses. In July, he filed a petition in Shawnee County District Court asking the court to order the Kansas Department of Revenue’s Division of Vehicles to issue driver’s licenses that reflect a resident’s sex at birth.
In response, the court issued a temporary restraining order blocking the DOV from making gender marker changes on identity cards and drivers’ licenses. While the order does not invalidate current driver’s license or identification cards that have already been changed, any replaced or renewed customer credentials will be reverted to assigned sex at birth, and new cards will show assigned sex at birth.
The changes mark the latest development in disputes about the law, which has been panned by civil rights groups and LGBTQ citizens since before the bill’s passage.
The law was justified under the assertion that defining women through “biological sex” is necessary to protect women in areas such as sports, locker rooms and bathrooms, though bill supporters couldn’t point to any evidence of transgender women being a danger to women in these spaces.
Some feared the law could be used to bar transgender people from bathrooms or lockers, but with no enforcement mechanism and vague language, government officials have turned to the courts to settle the law’s ramifications.
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