28 June 2023
TOPEKA (KSNT)- Starting July 1, birth certificates and driver’s licenses must reflect an individual’s sex at birth in Kansas. Kansas Attorney General Kris Kobach issued a formal legal opinion on Monday, declaring that changes be made to state records for people that have updated their gender markers.
It remains to be seen whether the Governor will direct state agencies to follow Kobach’s advice, which could mean wading through hundreds of state records.
“State records must be accurate and reflect the truth as defined in state law,” Kobach said, during a press conference on Monday. “A birth certificate is a record of what happened at the moment a baby came out of the womb. That baby weighed a specific amount and was a specific sex. Similarly, a driver’s license is a state document reflecting a state database for state purposes. It is not a canvas on which a person can paint one’s expression and preferences.”
This comes as SB 180, a law defining biological sex in several areas, is set to go into effect July 1.
Late Friday night, Kobach filed a motion requesting that the state no longer follow a 2019 consent decree, which requires Kansas to allow gender marker changes on birth certificates.
During his press conference Monday, Kobach fielded several questions on his legal opinion of the new law and what it could mean for state agencies and other facilities.
The opinion addresses three specific topic areas: birth certificates, drivers’ licenses, and correctional facilities.
Kansas Capitol Bureau has included a breakdown of Kobach’s summary and the Q & A portion of the press conference below.
DRIVER’S LICENSES
Kobach said the following on how SB 180 impacts driver’s licenses.
“SB 180 requires that a drivers’ license issued by the Department of Revenue, KDOR, lists the licensees biological sex at birth. This is an ongoing requirement governing a data set that is constantly changing…So, if KDOR has previously modified a driver’s license to list a sex other than the person’s biological sex at birth, SB 180 requires KDOR to restore the driver’s license data set to its original form. SB 180 does not require the licensee to surrender the license, or the actual card, that was issued that reflects a different sex other than the person’s sex at birth. But, it does require the agency to restore the data set back to its original, and place that information on any future driver’s license card that may be issued to that person.”
BIRTH CERTIFICATES
Kobach said the following on how SB 180 impacts birth certificates.
“SB 180… requires that the Kansas Department of Health & Environment, KDHE, list a person’s biological sex at birth on the person’s birth certificate. This, too, is an ongoing requirement, so if KDHE has previously modified a birth certificate to list sex other than a person’s biological sex at birth, [SB 180] requires KDHE to restore the birth certificate to its original form. However, hereto, SB 180 does not require an individual who obtained a change of sex on their birth certificate to surrender that piece of paper. It does require KDHE to change the data set and reflect that change in any subsequent paper birth certificates that are issued, and they must be done in compliance with the law.”
CORRECTIONAL FACILITIES
According to Kobach, the impact of SB 180 is more limited when it comes to correctional facilities. He said, by its terms, SB 180 only addresses state law and state rules and state regulations. The placement of inmates at Kansas correctional facilities is informally decided by state policy. It is not formally stated in our statutes or in our regulations. As a result, most are not affected by SB 180. However, there is one exception: Topeka Correctional Facility.
“It’s found in KSA 75-52, 134…That specific statute requires that the Kansas Department of Corrections house only biological females in the specified portion of the Topeka Correctional Facility that is addressed in that particular statute. So, the correctional facility…placement of inmates… is effected only in regard to that specific wing of that specific facility.”
QUESTIONS & ANSWERS
This is a breakdown of some of the questions and answers Kobach responded to, during his press conference Monday. To watch the full press conference, click here.
KEY TAKEAWAYS
Kansas Attorney General Kris Kobach is prepared to take Governor Laura Kelly to court, if she does not direct agencies to comply with the law
Drivers’ licenses, birth certificates with gender markers changes are inaccurate but still ‘useable,’ according to Kobach
Kobach says voting will not be impacted, if a person uses a license or I.D. with information that doesn’t match state records
SB 180 gives schools ‘legal cover,’ if they choose to have bathrooms reflect biological sex
What happens to birth certificates? drivers’ licenses?
Q: If I’m a person with a birth certificate, and I never asked for another one… I still have the birth certificate with the gender change on it… what happens to that record when the state goes back to describing me as the sex I was when I was born?
“The state agency that issues the birth certificates… Vital Statistics… they have to reflect the person’s sex at birth in the birth certificate data. However, if you were a person who transitioned and got a birth certificate reflecting a different sex, that piece of paper can remain with you. Nothing in the law requires a person to surrender a certificate that was changed. However, the state’s data will reflect the original sex at birth. And, so similarly, with the drivers’ licenses… the driver’s license will reflect the person’s sex at birth.”
Q: So, that amended document, that change of sex that I got and am holding onto… that just goes away in terms of the state’s database?
“Yeah, in terms of the state’s database. It will be an incorrect birth certificate and any subsequent birth certificate would be corrected. But, the law doesn’t require surrendering these documents.”
Q: There’s a group of people that have all of their current documents that reflect the current status after they’ve changed those documents. Those documents are still good? You’ve already said they’re not going to have to turn in their birth certificates… they’re not going to have to turn in their driver’s license, right?
“The driver’s license is inaccurate, but it is still sufficient for them to drive. Just like a driver’s license with the wrong address…it is still sufficient to drive.”
Q: So, if I have a passport in which I’ve changed my gender marker… or if I have a birth certificate, and I go get a passport based on that birth certificate, that’s still good, right?
“That’s a question of federal law. Presumably, the U.S. Department of State would make the decision as to whether their passport is valid or needs to be replaced…
Q: So, if I take a birth certificate and it reflects the current [changes] as I’ve had it done, that’s still going to be good, right?
“What you’re asking is really a question for a state agency. They would have to decide, if a birth certificate is out of compliance with state law, do they request an updated birth certificate… that’s not a question of state law. That’s not a question that we address in this opinion.”
How will this impact voting?
Q: If my driver’s license has a gender marker change on it, but now that record is incorrect… but I can hold onto my driver’s license, presumably, until it expires…I go to vote, I have to show photo I.D., does that effect me at all?
“It should have no effect whatsoever on voting. None of our election laws make any reference to a person’s sex. Just like, if a person’s weight is inaccurate on their driver’s license, that doesn’t effect them.”
Q: If the driver’s license lists me as male… if that’s the correct record… and I go in, and I’m presenting as female, for the poll worker, does it not raise a question as to whether I’m the correct person?
“The poll workers are directed to look at the photos… they’re really just looking for differences in the way a person appears. Nothing in SB 180 changes the way a person presents themselves in terms of appearance. That person can still go to the Department of Vehicles, and get the new driver’s license with a haircut and a visual presentation reflecting a transitioned sex. That is absolutely permissible, and that would be reflected in the driver’s license.”
Q: Even a name?
“Sure, you can change your name to whatever you want…”
What about passports? concealed carry permits? other I.D.’s?
Q: That raises an interesting question of… if I need a birth certificate to do something… get a passport…I have to go back and get the original one then, because that’s the correct birth certificate?
“That is true. It’s the correct one and it would conform with any other state issued I.D. you have… like your driver’s license or if you were a concealed carry permit holder… that information, although we didn’t address it in this opinion… that information is drawn from the same driver’s license database too.”
Q: Does it make passports in that data set [that would need to be changed] not useable?
“The passport data…the information that you provide to the U.S. Department of State when you get your passport… is usually reflected in your birth certificate, your drivers’ license and other identity documents that you provide to them. Where KDHE, pursuant to that consent decree, did, for a brief period, allow some individuals to change the sex on their birth certificates… that could lead to some inaccurate passports. I’m not aware of any federal statutes that have authorized the Department of State to begin changing sex on passports… although, I’m not familiar with their internal policies. It’s certainly conceivable that this period… where some documents were allowed to be changed… and, if those documents were then presented at a post office, or wherever the person seeks a passport…you could see conflicting documents.”
Does state law trump a federal court order?
Q: But, isn’t that in conflict with federal law… and in Foster v. Anderson… which you filed on Friday something about that…
“What we filed on Friday is a motion for relief from a consent decree, which is basically a settlement. So, the consent decree doesn’t reflect a ruling of federal law or an interpretation of federal law, so there’s no conflict with federal law.”
Q: And will you be arguing that yourself, or who are we going to see on that?
“Usually in a motion like that, you wouldn’t see oral argument. The judge could certainly call for oral argument, if he wants to. We haven’t made a decision on it… but, typically a motion like that is resolved on the briefs.”
Q: You are not a defendant in that case…the defendants in that case are the three acting state officials, who hold the jobs dealing with birth certificates. The Governor’s Office said they disagree with your legal analysis. Walk me through how you get to the point that if you are not a defendant, you get to jump in, when the Governor presumably doesn’t want you to do that…
“The statutes of Kansas designate the Attorney General as the presumed attorney representing any state agency that is sued in court. The Attorney General may, if he or she wishes, allow the state agency to proceed with their own counsel, but the Attorney General has the prerogative of being the Attorney representing the state. And, the Attorney General is also the official who is charged with interpreting state law, and representing those agencies, if that interpretation is ever challenged. So, the posture of the Attorney General gives us the ability to say this is what the correct interpretation of SB 180 is.”
Q: Is it your position that the consent judgement is binding upon the state agencies, or KDHE, in this instance, unless and until a federal judge modifies it?
“We believe that state law binds state agencies… and if there is a conflict between state law and a consent decree… which is basically a settlement that the parties draft up and the judge just signs off and says, ‘okay, the case is gone, here’s your agreement’…that state law would trump anything that the parties agree to at that prior point in time.”
Q: So, do you expect KDHE, under your position next week, that they should cease to follow the stipulations of the consent judgement?
“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 the judge to make a decision first. Normally, we would not push an agency to be in that position.”
Q: If the judge decides that the consent judgement is still valid, what would be the next steps for you and your office?
“It would depend what the judge said in coming to the conclusion that the consent decree couldn’t be amended. My expectation is that the judge would allow the decree to be amended. The request in our motion is only for a fairly small amendment to a fairly broad decree. The judge, frankly, lacks the power to set aside state law. A consent decree is a voluntary agreement between two parties. The two parties negotiate it, and the judge just signs off. If state law makes the decree illegal, there is extensive case law that says that decree cannot be enforced. Two parties can’t agree to something that is illegal, and then, just because there’s a judge’s signature on it say, ‘we’re entitled to violate the law.’ So, I don’t expect that the judge would come to that conclusion.”
Will sanctuary cities be allowed?
Q: Some cities are considering whether to make themselves sanctuaries for transgender rights, and say they will not be enforcing SB 180… is your office prepared to take any sort of response, if [for example] Lawrence says we’re not going to follow this law?
“The reason that I think this should be addressed is that SB 180 doesn’t create any criminal penalties and doesn’t impose any obligations on any private individuals. SB 180 is directed to state agencies… similarly, a city declaring itself a sanctuary city against SB 180 is really pointless virtue signaling. It’s saying, ‘okay, we’re a sanctuary city…but, what does that actually mean?’ SB 180 doesn’t effect the operations of a city in any meaningful sense, unless the city is collecting data that includes a person’s sex. If a city was issuing some sort of card that included that information, then it would affect that in that very tiny way. Otherwise, the cities have been pretty non-specific in what they intend to do, and that’s because SB 180 doesn’t really affect their operations in any significant way.”
What about schools? How will restrooms, locker rooms be used?
Q: The discussion we heard during the debate [in the Legislature] was about protecting privacy and safety in women’s restrooms, locker rooms… so, presumably, under this law, if you’re a trans person, you can’t go into this bathroom in a school… you can’t use this locker room in a public facility… so, I’m curious, how that actually comes to pass…
“That particular question about how it affects school bathrooms and locker facilities was not addressed in this opinion or in the request made by the legislator, so I’m going a little beyond the opinion here… if you look at the text of SB 180, you can see that it does two things relative to school bathrooms. One, is it states that the government has an important governmental interest in maintaining bathrooms that are specific to a person’s biological sex. That is essentially addressing a legal argument that might be made in the future about whether it’s in any way discriminatory to have bathrooms correspond to biological sex. So, it gives those schools that opt to have bathrooms reflect one’s biological sex… it gives them legal cover. The statute also tells schools in so far as they collect data on a student’s sex, that the data they collect must reflect biological sex not chosen sex, if it’s different than biological sex. That’s on the surface of the statute. To get into hypotheticals beyond that, it will probably have to be the subject of another Office of the Attorney General opinion.”
Q: If I have a student born female, now identifying as male… the public school record for this kid needs to say female?
“Correct.”
Q: Is there anything compelling a teacher, then, to reflect that in how they address a student?
“Not having had the benefit of an opinion with a team of attorneys addressing that question, my initial impression is… no, it doesn’t affect how a teacher addresses people, because a teacher can address people as Mister Jones, or by first name, or any number of ways.”
Can people sue over transgender people using public or school restrooms?
Q: Let’s say one student was female and transitioned to male… grew a beard, bulked up, wears men’s clothing… under this law, that person is a female and, in theory, it’s not allowed under this policy, for that person in a public building to go into a men’s restroom. They have to use the women’s restroom. But, if I’m a biological woman, and I see this person go into that restroom, am I not going to say, ‘hey, wait a minute…I think that’s a man…what is he doing in this restroom?’
“The law defines that the school or the state entity or the local entity has a compelling governmental interest in it, and basically permits that entity to allow or exclude people based on their biological sex into a restroom.”
Q: Let’s say I’m a person who believes in that… I don’t just want a legal doctrine, do I? I don’t want an argument in court…I want to make sure that these trans folks are not wandering into my daughter’s bathroom…
“SB 180 does not empower any private individual to bring litigation against any other individual, or against any school, because of the way that that organization or school maintains their bathroom and who can go to what bathroom. It does give the school a defense, if it is challenged. But, it doesn’t create a private right of action. Let’s imagine your hypothetical case… presumably if one parent sued another parent or sued the school, it would give them some arguments, but the binding effect is limited. It does absolutely give the school a defense if the school chooses to do that.”
What if the Governor won’t take the Attorney General’s legal advice?
Q: What are you prepared to do if [Governor Laura Kelly’s] administration says they’re going to go ahead and continue to allow birth certificates and drivers’ licenses to be changed in accordance with sexual identity?
“We expect the Governor’s Office and her agencies to conform to the law. Just as the Attorney General has a legal obligation to defend every law on the books, regardless of whether I agree with those laws or disagree with those laws. Similarly, the Governor and her agencies have a legal obligation to execute every law on the books in accordance with the statutory language. So, she has a legal obligation to do so, and we expect her to do so. The Governor cannot act as if SB 180 was not passed. She has a legal and, indeed, constitutional obligation to comply with the law.”
Q: Are you prepared to take her to court if they don’t?
“If that were necessary, then absolutely.”