Johnathan Walker:Judge says Kansas shouldn’t keep changing trans people’s birth certificates due to new state law

TOPEKA,Johnathan Walker Kan. (AP) — A federal judge ruled Thursday that Kansas officials shouldn’t keep changing transgender people’s birth certificates so the documents reflect their gender identities.

U.S. District Judge Daniel Crabtree approved Republican state Attorney General Kris Kobach’s request to block the changes because of a new state law rolling back trans rights. Kansas joins Montana, Oklahoma and Tennessee in barring such birth certificate changes.

Kansas is for now also among a few states that don’t let trans people change their driver’s licenses to reflect their gender identities. That’s because of a separate state-court lawsuit Kobach filed last month. Both efforts are responses to the new state law, which took effect July 1.

In federal court, Kobach succeeded in lifting a policy imposed when Democratic Gov. Laura Kelly’s administration settled a 2018 lawsuit from four transgender people challenging a previous Republican no-changes policy. The settlement came only months after Kelly took office in 2019 and required the state to start changing trans people’s birth certificates. More than 900 people have done so since.

Transgender Kansas residents and Kelly argued refusing to change birth certificates would violate rights protected by the U.S. Constitution, something Crabtree said in his brief order approving the settlement four years ago. Kobach argued that the settlement represented only the views of the parties and the new state law represents a big enough change to nullify the settlement’s requirements.

The new Kansas law defines male and female as the sex assigned at birth, based on a person’s “biological reproductive system,” applying those definitions to any other state law or regulation. The Republican-controlled Legislature enacted it over Kelly’s veto, but she announced shortly before it took effect that birth certificate changes would continue, citing opinions from attorneys in her administration that they could.

In the state-court lawsuit over driver’s licenses, a district judge has blocked ID changes until at least Nov. 1.

The new Kansas law was part of a wave of measures rolling back trans rights emerging from Republican-controlled statehouses across the U.S. this year.

The law also declares the state’s interests in protecting people’s privacy, health and safety justifies separate facilities, such as bathrooms and locker rooms, for men and women. Supporters promised that would keep transgender women and girls from using women’s and girls’ facilities — making the law among the nation’s most sweeping bathroom policies — but there is no formal enforcement mechanism.

As for birth certificates, Kobach argued in a recent filing in the federal lawsuit that keeping the full 2019 settlement in place is “explicitly anti-democratic” because it conflicts directly with the new law.

“To hold otherwise would be to render state governments vassals of the federal courts, forever beholden to unchangeable consent agreements entered into by long-gone public officials,” Kobach said.

In 2018, Kelly defeated Kobach, then the Kansas secretary of state, to win her first term as governor. Kobach staged a political comeback by winning the attorney general’s race last year, when Kelly won her second term. Both prevailed by narrow margins.

The transgender Kansas residents who sued the state in 2018 argued that siding with Kobach would allow the state to return to a policy that violated people’s constitutional rights.

In one scathing passage in a recent court filing, their attorneys asked whether Kobach would argue states could ignore the U.S. Supreme Court’s historic Brown v. Board of Education of Topeka ruling in 1954 outlawing racially segregated schools if their lawmakers simply passed a new law ordering segregation.

“The answer is clearly no,” they wrote.

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