Efforts Underway by Kansas AG to Prevent Trans Individuals from Amending Birth Certificates

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Kansas-born transgender individuals could be barred from modifying their birth certificates to align with their gender identities if the state’s conservative Republican attorney’s legal maneuver, introduced late Friday, proves successful.

A motion was submitted to a federal court by Attorney General Kris Kobach, asking for the termination of the obligation for Kansas to permit transgender people to alter their birth certificates. This requirement was set in 2019 by U.S. District Judge Daniel Crabtree to resolve a lawsuit filed by four transgender Kansans against three state health department officials regarding a policy that critics claim blocked transgender people from making alterations, even post-transition, after legally changing their names, and after acquiring new driver’s licenses and Social Security cards.

The possibility of success for Kobach’s initiative remains uncertain, especially considering the 2020 U.S. Supreme Court ruling that federal laws prohibiting sex discrimination at work also extend to sexual orientation or gender identity discrimination. During that year, federal judges in Idaho and Ohio struck down restrictions against transgender individuals amending their birth certificates. However, a lawsuit against one of the few remaining state policies obstructing such changes was dismissed by a federal judge in Tennessee.

This move by Kobach aligns with a comprehensive new Kansas law, set to come into effect on July 1, that retracts transgender rights. This legislation was passed by the Republican-majority Legislature, overriding Democratic Gov. Laura Kelly’s veto. The new law was cited as a rationale to reexamine the 2019 settlement in a memorandum filed electronically in conjunction with the request.

A press conference to discuss the enforcement of the new law was pre-planned by Kobach for Monday afternoon at the Statehouse.

The order in 2019 by Judge Crabtree obstructed a stringent policy against birth certificate amendments set by former Republican Gov. Sam Brownback’s administration. Kelly, a strong supporter of LGBTQ+ rights, and her administration agreed to resolve the lawsuit less than half a year into her term.

This settlement arrived almost a year after Crabtree stated that the Kansas policy violated the constitutional rights of transgender individuals to due legal process and equal protection under the law. His order highlighted that federal courts in Idaho and Puerto Rico had already struck down policies prohibiting amendments.

The incoming Kansas law aims to prohibit transgender individuals from utilizing restrooms, locker rooms, and other single-gender facilities that align with their identities. Comparable laws exist in at least nine other states, with a primary focus on public schools.

According to Kobach, the new Kansas law also inhibits transgender individuals from amending their driver’s licenses, despite the absence of specific enforcement mechanisms in the law. It was drafted to bar transgender people from changing their birth certificates, except for the 2019 federal court order.

For weeks, Kansas Legal Services, a nonprofit law firm, has been urging transgender Kansans to amend their driver’s licenses before the new law is implemented. Gov. Kelly’s administration, which is in charge of driver licensing, hasn’t clarified whether it considers such changes to still be permissible under the new law.

Ellen Bertels, the attorney leading the effort, suggested that although a transgender person could sue after the law comes into effect to protect the right to change their driver’s licenses, a lawsuit from a state official against Kelly’s administration could attempt to prohibit such changes.

With regard to birth certificates, fewer states are now preventing transgender individuals from making changes due to federal court challenges like the one in Kansas. In Oklahoma, GOP Gov. Kevin Stitt faces a lawsuit regarding his 2021 order that prohibits such changes.

The American Civil Liberties Union of Montana is planning to challenge a rule established last year that states people can’t alter the sex listed on their birth certificates, according to one of its attorneys, Alex Rate. The state has toughened its rules since GOP Gov. Greg Gianforte took office in 2021.

Previously, under Democratic Governor Steve Bullock in 2017, Montana permitted transgender people to modify their birth certificates via an affidavit.

Advocates for LGBTQ+ rights argue that amending birth certificates, driver’s licenses, and other records to reflect a transgender person’s gender identity is crucial for validating their identities and often significantly improves their mental health.

The new Kansas law, which asserts that state law acknowledges only two genders based on a person’s “biological reproductive system” at birth, has sparked criticism as it may effectively legally erase transgender individuals.

This law argues that “important governmental objectives” of safeguarding people’s health, safety, and privacy warrant having sex-segregated spaces that align with those definitions.

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This story was contributed to by Amy Hanson, a journalist based in Helena, Montana.

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