By TIM CARPENTER
Kansas Reflector
TOPEKA — Attorneys for the Kansas Department of Revenue requested a hearing to argue for reversal of the temporary restraining order issued by a district court judge to block issuance of driver’s licenses to Kansans seeking to amend their gender marker on the card.
The administration of Democratic Gov. Laura Kelly filed the request in response to the 14-day temporary order issued Monday by Judge Teresa Watson, a 2014 appointee of Republican Gov. Sam Brownback. Watson’s order was based on a request Friday by Attorney General Kris Kobach to enforce his interpretation of Senate Bill 180, which he contended forbid Kansans from modifying the sex marker of Kansas birth certificates, driver’s licenses or other identification documents.
Attorneys in the Kelly administration responded by arguing the law pushed through by Republican majorities in the House and Senate over the governor’s veto exclusively addressed sex determinations recorded on birth certificates controlled by the Kansas Department of Health and Environment. The statute didn’t deal with gender information recorded on driver’s licenses handled by the Department of Revenue, the administration said.
Since Jan. 1, more than 500 people have sought to alter gender on driver’s licenses in Kansas. That included 172 in June prior to implementation of the law July 1.
Move to quash
Ted Smith, an attorney representing the state Department of Revenue, argued in a filing the temporary restraining order should be dissolved and a full hearing set. He said granting the restraining order without the hearing “should never change the status quo” and undermine a principle that the relative position of both sides in a dispute should be preserved until a decision on merits of the case.
He said quashing the restraining order would enable the Department of Revenue to continue modifying driver’s licenses in terms of gender markers under a process that retained historical information on gender selection, including sex at birth derived from Kansas birth certificates. The Department of Revenue’s process has been in place since 2007 and was backed by administrative changes implemented in 2011.
“Petitioner is requesting an affirmative change from the status quo, that KDOR diverge from its current process of relying upon gender for purposes of developing identity,” Smith’s motion said. “There is no established, actual harm shown by the petitioner if KDOR’s processes are maintained — beyond hypothetical cases.”
Kobach, who was elected attorney general in November and lost the 2018 gubernatorial race to Kelly, filed a lawsuit in Shawnee County to compel the Kelly administration to reform processing of driver’s licenses to identify people as either male or female. Those constraints ignored people with chromosomal variations, such as intersex people, or individuals with diverse gender identities, such as transgender or nonbinary people.
Separately, Kobach filed in U.S. District Court to alter a 2019 agreement allowing Kansans to amend gender markers on birth certificates issued by KDHE.
‘Will be serious harm’
In the driver’s license brief, Smith said accurately recording gender on licenses supported the purpose of checking identity of an individual during a law enforcement traffic stop, when cashing a check or getting on an airplane. The driver’s license would more useful when the appearance of a person matched information contained on the card, he said.
He argued the judge’s reliance on an immediate temporary restraining order was inappropriate unless “there is a clear legal duty attached.” Authority claimed by the attorney general under the new state law wasn’t clearly established by Senate Bill 180, he said.
“Rather it is clear that driver’s licensing specific statutes continue to control and KDOR’s actions are concordant with law. There will be serious harm and public impact to individuals if they must reclassify their gender as requested by the petitioner,” the reply motion said.
The bill approved by the 2023 Legislature was drawn from model legislation advocated by a national organization with a history of opposing women’s rights, including the Equal Rights Amendment and equal pay. It was championed by Independent Women’s Voices, which advocated for the bill in Kansas and other states to counter spread of “transgender ideology.”
The Kelly administration says the two-page bill, also known legislatively in Kansas as the Women’s Bill of Rights, wasn’t tailored to specifics of Kansas law, including the distinct process of dealing with driver’s licenses and birth certificates. The law also didn’t contain an enforcement mechanism, raising questions about how the state would deal with actions viewed as contrary to statute.
Prior to 2007, Kansas law required the Department of Revenue to document an applicant’s sex on the driver’s license. Senate Bill 9, however, change the driver’s license field from sex to gender, which standardized the process of evaluating documentation such as a U.S. passport or birth certificates from another state.
The 2011 administrative policy, crafted by the Brownback administration, enabled the Department of Revenue to address inconsistent processing of requests to adjust gender markers and grapple with potential Americans with Disability Act claims.