ACLU of Kansas argues against Kobach request for temporary injunction in driver’s license case

AG wants licenses to reflect biological sex rather than gender identity

By: - November 20, 2023 5:45 pm

Sharon Brett, legal director at ACLU of Kansas, said a Shawnee County judge ought to reject Attorney General Kris Kobach's request for a temporary injunction against the state to block issuance of driver's licenses with amended gender identity information about transgender motorists. (Thad Allton for Kansas Reflector)

TOPEKA — The American Civil Liberties Union argued in a court filing Monday the state’s Republican attorney general shouldn’t be granted a temporary injunction forbidding Kansans to change driver’s licenses to affirm their gender identity.

Sharon Brett, legal director of ACLU of Kansas, argued in a lengthy document submitted to the Shawnee County District Court that Attorney General Kris Kobach’s mistaken interpretation of how a new state law applied to driver’s licenses could result in violation of rights guaranteed under the Kansas Constitution.

Kobach relied on his analysis of Senate Bill 180 when filing a lawsuit against the Kansas Department of Revenue to halt the agency’s acceptance of gender identity changes on driver’s licenses.

The ACLU intervened in the dispute centered on implications of Senate Bill 180, a vague piece of legislation labeled the Women’s Bill of Rights.

The alleged conflict is one of petitioner’s imagination,” Brett said. “Even if SB 180 could be interpreted to require denial of driver’s licenses with accurate gender markers to transgender Kansans, which it does not, petitioner’s requested relief should still be denied because it would violate intervenor-respondents’ rights to personal autonomy, privacy and equal protection under the Kansas Constitution.”

“The balance of hardships, the public interest and irreparable harm tips overwhelmingly in favor of resuming KDOR’s gender marker policy during the remainder of this litigation,” she said.

Kobach filed suit in July against officials in the Democratic administration of Gov. Laura Kelly. The maneuver was intended to block transgender people from amending gender markers on driver’s licenses. Kobach said Kelly had no alternative to respecting laws passed by the Legislature. The governor affirmed her responsibility to follow statute, but didn’t agree with the attorney general as it related to the law’s influence on content of driver’s licenses.

“The other side spends 80 pages explaining that they don’t like the Women’s Bill of Rights very much. But that is beside the point,” said Danedri Herbert, a spokeswoman for Kobach. “They’re free to lobby the Legislature for laws they like, but once the law is passed, the government has to follow it. Tenth-grade civics students know this. It’s amazing that the ACLU and Governor Kelly’s bureaucrats don’t.”

Kobach formally filed suit against Mark Burghart, the state revenue secretary, and David Harper, the agency’s director of vehicles. The attorney general secured from District Court Judge Teresa Watson a temporary restraining order forbidding the state Department of Revenue from making more gender adjustments to driver’s licenses.

In response, the revenue department halted its process of issuing licenses with gender markers associated with gender identity rather than an individual’s assignment of male or female sex at birth.

Kobach took the next step by requesting a temporary injunction, but action was delayed several months ago to give the attorney general’s office more time to prepare for oral argument with the ACLU.

He said the Department of Revenue ought to follow the “plain meaning of a law” passed by the Legislature. He also said he looked forward to rebutting the ACLU’s “novel theories” about the intersection in Kansas of constitutional rights and driver’s licenses.

Transgender people have a gender identity different from their sex assigned at birth. Gender identity referred to a person’s fundamental, internal sense of belonging to a particular gender. However, a gender marker designated on a birth certificate at the time of birth — male or female — was almost always based on a health care professional’s consideration of an infant’s external genitalia.

For cisgender people, the sex assigned at birth matched their gender identity. For transgender people, sex assigned at birth didn’t match their gender identity.

In the ACLU’s latest court filing, Brett said Kobach couldn’t prevail on merits of his lawsuit against Department of Revenue leadership.

ACLU lawyers, who represent five transgender Kansans in the lawsuit, suggested the revenue department be given authority to resume issuance of licenses to transgender Kansans aligned with the gender “they live as, are perceived as, and know themselves to be.”

“KDOR’s policies regarding the issuance of driver’s licenses to transgender Kansas citizens have worked well for over a decade without any evidence of problems or harm. Interference with KDOR’s policies, by contrast, will create a myriad of harms,” Brett said.

The district court judge is expected to conduct a hearing in January on Kobach’s proposed preliminary injunction.

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Tim Carpenter
Tim Carpenter

Tim Carpenter has reported on Kansas for 35 years. He covered the Capitol for 16 years at the Topeka Capital-Journal and previously worked for the Lawrence Journal-World and United Press International.