Kansas: No Birth Cert. Changes for Trans People

sj writes

Kansas will no longer change transgender people's birth certificates to reflect their gender identities, the state health department said Friday, citing a new law that prevents the state from legally recognizing those identities.

The decision from the state Department of Health and Environment makes Kansas one of a handful of states that won't change transgender people's birth certificates. It was already among the few states that don't change the gender marker on transgender people's driver's licenses.

Those decisions reverse policies that Democratic Gov. Laura Kelly's administration set when she took office in 2019. They came in response to court filings by conservative Republican state Attorney General Kris Kobach to enforce the new state law. Enacted by the GOP-controlled Legislature over Kelly's veto, it took effect July 1 and defines male and female based only on the sex assigned to a person at birth. Jaelynn Abegg, a 38-year-old Wichita resident, said her heart breaks for fellow transgender Kansas residents who won't be able to experience the joy she felt when her new birth certificate, affirming her female identity, arrived in the mail in 2021. She said the change gave her "a feeling of completeness."

"This is something that I’ve been grappling with my entire life. As far back as I can remember, I have wished that I was a woman," Abegg said. "And being able to embrace that and take that for myself has been life-changing."

Trangender Kansas residents have also said repeatedly in interviews that having ID documents that conflict with their identities makes traveling by airplane, interacting with police, and even using a credit card in stores more complicated. Also, studies show that transgender people who don't have their identities affirmed, especially youth, are generally more prone to depression and at a higher risk of suicide.

Kobach publicly chastised Kelly when she initially said that her administration could continue to change transgender people's birth certificates and driver's licenses despite the new law. He said it was her duty to administer the law, even though she opposes it. Omar Gonzalez-Pagan, an attorney for Lambda Legal, which represents LGBTQ+ people in lawsuits, said Kelly's administration was forced to act as it did, though he expects the courts to find the law unconstitutional. "People with a myopic view or a misunderstanding or misapprehension about trans people want to ensure that trans people are not seen by the government and the world at large," he said.

Kobach and other supporters of the new law have argued that a birth certificate is a record of a historical event and therefore shouldn't change even when a person's gender identity does. Also, some supporters of the law have acknowledged that they don't see transgender girls and women as girls and women. Kobach said Friday he is pleased that Kelly’s administration is complying with the new law, adding in a statement, "The intent of Kansas legislators was clear."

The new Kansas law was based on a proposal from several national anti-trans groups and was part of a wave of measures rolling back transgender rights in Republican-controlled statehouses across the U.S. Montana, Oklahoma, and Tennessee also don't allow transgender residents to change their birth certificates, and Montana and Tennessee don't allow driver's license changes.

From 2019 through June 2023, more than 900 Kansas residents changed the gender markers on their birth certificates, and nearly 400 changed their driver's licenses. Both documents list a person's "sex."

Kobach issued a legal opinion in late June saying that not only does the new law prevent such changes, it also requires the state to reverse previous changes to its records. The Department of Health and Environment said Friday that a transgender person can keep a changed birth certificate and it will remain valid, but if another copy is issued in the future, it will revert to listing the sex assigned at birth.

For weeks before the new law took effect, LGBT rights advocates urged trans people to change their driver's licenses and birth certificates before it took effect. Requests for changes surged in the weeks before the law took effect. Under the conservative Republicans who were governor before Kelly, transgender residents also couldn’t change their birth certificates.

Four Terrenger residents represented by Lambda Legal sued the state in 2018 over that policy, and months after taking office, Kelly settled that lawsuit. A federal judge signed off on a settlement agreement requiring the state to change transgender people’s birth certificates.

In that state court case, five transgender people argue that the new law violates their rights under the Kansas Constitution. That issue appears likely to go to the Kansas Supreme Court, which ruled in 2019 that the state’s Bill of Rights grants people a right to bodily autonomy.

The American Civil Liberties Union of Kansas has set up a website for people to report that they've been harmed by the new state law rolling back trans rights. "Accurate, affirming identity documents are crucial for the health, safety, and well-being of trans people," said D.C. Heigert, LGBTQ+ legal fellow for the group.

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