Kansas v. Harper

Citing a 2023 law passed by the Kansas state legislature over a veto by Kansas Governor Laura Kelly attempting to limit the rights of transgender people, 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 Kelly administration from allowing gender marking changes while the case goes forward.

Shortly thereafter, the ACLU of Kansas, the ACLU, and Stinson LLP 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, and the case is now on appeal to the Kansas Court of Appeals.

SB 180, the law being used by Attorney General Kobach, rigidly defines one’s “sex” based upon the gender assigned at birth and defines “male” and “female” based on one's reproductive capacity. The new definition applies “with respect to the application of an individual’s biological sex pursuant to any state law, rules or regulations.”

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.
The district denied the motion for a temporary injunction, holding that the challenged law clearly applies to driver’s licenses, and even if any ambiguity existed, the application of the law to licenses would not violate to constitutional rights of transgender Kansans. Our intervenor clients appealed from that decision, as did the licensing agency. Briefing in the Kansas Court of Appeals is ongoing, and we SSCI recently replied to the Attorney General's brief. Meanwhile, the parties have cross-moved for summary judgment in the district court.