Kansas Attorney General Kris Kobach said Monday that a new state law requires Kansas agencies over time to revert updated birth certificates and driver’s licenses issued to transgender residents back to their original forms ahead of its implementation this coming Saturday.
Kobach, a Republican, released an advisory opinion outlining what he contends are the requirements of SB 180, a sweeping law passed by the Legislature this spring that bars trans and nonbinary people from single-sex spaces that do not match their sex at birth.
Kobach’s opinion only analyzes the law as it relates to birth certificates, driver’s licenses and state prisons. It does not delve into how the new law affects public restrooms and other single-sex spaces.
The opinion isn’t binding, but sets down Kobach’s views ahead of a coming legal confrontation over the new law, titled the “Women’s Bill of Rights.”
According to Kobach, SB 180 requires the Kansas Department of Health and Environment to “restore” previously modified birth certificates to their original form. The law also requires the Kansas Department of Revenue to update its database of driver’s license holders to reflect their sex at birth, Kobach said.
Kobach said nothing requires trans residents to surrender either modified birth certificates or driver’s licenses, but added that their birth certificates would be outdated. Trans residents who have updated licenses can continue to use them, he said, but when the licenses are renewed they will be issued a card that has their sex at birth.
“The Legislature chose to have our laws reflect biological facts rather than a person’s chosen expression of identity and I think that’s a reasonable choice and, in fact, it’s a choice that is most legally defensible,” Kobach told reporters at a news conference at the Kansas Capitol.
“Because as these statutes are tested in court and as they are applied to one another, there needs to be consistency in our laws and our laws should reflect truth. And SB 180 ensures that it reflects biological truth.”
The opinion comes after Kobach’s office on Friday filed court documents seeking to overturn portions of a federal consent judgment requiring the state to issue updated birth certificates to trans residents.
“Even as attorney general, Mr. Kobach’s opinion is just that – his opinion,” Micah Kubic, director of the ACLU of Kansas, said in a statement.
“SB 180 provides very little in the way of meaningful clarity. As he has done so many times in the past, Mr. Kobach was more than willing to rush in and impose his own stamp of extremism in an attempt to allow the state to deny Kansans their basic constitutional rights,” Kubic said. “But should he decide to go further in an attempt to enforce his interpretation, the ACLU of Kansas remains ready to respond with the full force of our community and our legal team.”
Kobach’s opinion, if followed by state officials, potentially raises questions about whether trans residents will encounter difficulties in situations that require birth certificates or driver’s licenses if those documents are checked against state databases.
First-time passport applicants must submit their birth certificate to the U.S. Department of State, for instance.
But the State Department says that as of 2021 it no longer requires trans applicants to submit a medical certification to change the gender marker on their passport. Trans individuals can obtain a passport reflecting their gender by choosing that gender on their application.
Kobach’s opinion, if followed by state officials, would undercut an intense campaign by LGBTQ advocates in recent weeks to encourage trans residents to obtain updated documents ahead of the law’s July 1 effective date. Documents obtained by The Star through an open records request show that in May, KDHE completed 112 transgender amendment requests.
The GOP-controlled Legislature approved SB 180 over the veto of Democratic Gov. Laura Kelly. Ahead of Kobach’s news conference, Kelly’s office separated itself from the opinion.
“While we have had discussions with the Attorney General’s Office regarding SB 180, we do not agree with their legal view and believe that the consent judgment was the appropriate resolution. We will have no further comment on the impending litigation,” Kelly spokesperson Zach Fletcher said in a statement.
Asked directly whether the consent judgment remains binding on KDHE unless it is modified by a federal judge, Kobach said it was a “really interesting question of law” and suggested the agency must follow SB 180 despite the judgment. If there is a conflict between state law and a consent judgment, “state law would trump” the agreement, he said.
But Kobach stopped just shy of saying KDHE should stop following the consent judgment after this week.
“Well, in this particular case out of deference to judges, it is the position of the attorney general’s office and normally that we would ask, we would ask the judge to make a decision first. Normally, we would not push an agency to be in that position,” Kobach said.
