Kansas v. Harper

KansasKansas State Court of AppealsIdentificationGender Marker

May 5

Written By Mack Karbon

Kansas State Court of Appeals

Case No. 23-CV-000422 (Dist. Ct.)
Case No. 24-127390 A (Ct. App.)

STATUS: ONGOING

Case Information

FROM ACLU.ORG:

In 2023, Kansas enacted a law attempting to define “transgender” out of existence by restricting the definition of a “woman” to the biological function of producing ova. Not only does this definition negate the experiences of trans women and girls, but it also excludes entire categories of women who are not transgender, such as post-menopausal women, women experiencing reproductive challenges, and intersex women.

Despite being passed under the dubious title “Women’s Bill of Rights,” the law has not been used to create any new protections for women, nor improve support for women’s initiatives or resources. Instead, the law has been used to incite fear among transgender Kansans and limit their ability to live freely.

Citing this law, Kansas Attorney General Kobach filed a lawsuit in state court on July 7, 2023 against the government agency that issues driver’s licenses, asking the court to prohibit transgender people from changing their gender markers on their driver’s licenses, and to require the state agency to list sex assigned at birth on all license renewals and new licenses issued. Judge Teresa Watson granted a temporary restraining order, which has blocked the Kansas Governor’s administration from allowing gender marking changes while the case goes forward.

Shortly thereafter, the ACLU of Kansas successfully intervened in the case on behalf of five transgender Kansans threatened under the Attorney General’s lawsuit. Following a hearing on January 10-11, 2024, the District Court GRANTED the Attorney General’s motion for preliminary relief. The case is now on appeal to the Kansas Court of Appeals.

Courts have routinely rejected efforts by states to force transgender people to carry identity documents with a gender marker inconsistent with their gender identity as a denial of equal protection of the laws, and a violation of the right to privacy and the prohibition on government-compelled speech. The intervenors in this case argue that the law should not be interpreted to violate their state constitutional rights and the rights of all transgender Kansans to not be forced to disclose their transgender status every time they have to show their driver’s license.

Trans Kansans are not currently able to access accurate and affirming state identity documents. Having an ID that reflects a trans person’s lived identity is crucial to their safety, privacy, and bodily autonomy. The research shows that lack of access to an affirming ID harms trans people, making them vulnerable to forced outing and increasing their chances of experiencing discrimination, harassment, and violence.

Trans Kansans can still obtain gender-affirming federal identification. Trans people can self-attest their gender when applying for a federal ID, meaning they do not need a state ID that verifies their selected gender. For trans Kansans, this means they can still obtain a federal ID that reflects their lived gender. For more information on how to obtain a federal ID, click HERE.