Refusal to recognize gender on driver's license OK: Judge

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Background: Kansas high school students, family members and advocates rally for transgender rights, Wednesday, Jan. 31, 2024, at the Statehouse in Topeka, Kansas. (AP Photo/John Hanna). Inset: Kansas Attorney General Kris Kobach answers questions during a news conference, June 26, 2023, at the Statehouse in Topeka, Kansas. (AP Photo/John Hanna, File)

Though it is one of the few states left to enforce such restrictions, a judge in Kansas has reaffirmed a ruling that it would be an “unreasonable stretch” to depart from a recently-passed law that requires driver’s licenses to display a person’s biological sex and not their preferred gender identity.

The ruling from Third Judicial District Judge Teresa Watson cements her order from last year upholding a law that opponents say grossly limits rights for transgender individuals, but supporters say protects women’s rights by, in part, stopping people from changing their sex on their government-issued driver’s license.

The law, known as the Women’s Bill of Rights, was enacted over a veto from Gov. Laura Kelly, a Democrat. It was also a response to legislation the governor had passed that permitted changes to sex on licenses to begin with. But when Kansas Attorney General Kris Kobach, a Republican, sued in July to stop those changes in their tracks, Watson agreed with Kobach and granted a temporary restraining order.

Watson’s order published Monday solidified that indefinitely.

The conservative-backed legislation enshrined distinctions and definitions for an individual’s sex. The law takes that to refer only to biological sex — in other words, “either male or female at birth.” The necessity for this, according to the law itself, was for the state government to “allow the law to distinguish between the sexes where such distinctions are substantially related to important governmental objectives.”

Those “governmental objectives” include the issuance of driver’s licenses, but the law stipulates that it also includes athletics, correctional facilities, shelters for victims of domestic violence, rape crisis centers, locker rooms, restrooms and elsewhere where “privacy” should be implicated, the opinion states.

While unfair discrimination is not permitted and the Kansas State Constitution itself guaranteed the right to bodily autonomy in its constitution in 2019, in this instance, the judge came to a different conclusion about what that constitution means for transgender individuals.

“Kansans have the right to control their own bodies,” Watson wrote.

But they cannot argue that the Women’s Bill of Rights guarantees a “fundamental state constitutional right to control what information is displayed on a state-issued driver’s license.”

The judge reached this conclusion after receiving testimony and reviewing evidence for two days in court, including testimony from Kansas transgender intervenors in the case represented by the American Civil Liberties Union and a local family care physician with a history of treating transgender patients and patients who experience gender dysmorphia.

Beyond personal autonomy violations, the intervenors argued that the prohibition on changing sex on documents was a violation of informational privacy laws and equal protection rules, too. While some of the parties claimed the discrepancy on their documents and their gender identity resulted in a “forced outing … which exposes that person to psychological and physical harm from others,” Watson was unpersuaded.

The testimony she said she heard in court from transgender individuals was less severe. When they were forced to produce a driver’s license indicating a different sex than their own, they did not experience physical violence or verbal harassment, the judge wrote. They did not describe losing their jobs, benefits, or being refused service. Nor did the intervenors who testified have any negative interactions with law enforcement.

“Rather, Intervenors testified about feeling embarrassed, humiliated, or unsafe if someone gave them a puzzled look, hesitated, or questioned their identity when looking at their driver’s license. They testified to the discomfort of airport security pat downs that are a universal feature of modern travel. [The Women’s Bill of Rights] does not violate any right to personal autonomy under Section 1,” Watson wrote.

As for informational privacy, the information recorded on a driver’s license also “does not interfere with transgender persons’ ability to control their own bodies or assert bodily integrity or self-determination.”

Further, the judge ruled that on a driver’s license, “sex” is considered a vital statistic, not a classification. And in order for an violation of an equal protection guarantee to occur, as the intervenors alleged, a classification must be created.

“There is no classification based on sex or transgender status or any other factor. The rules are the same for identifying each person who seeks a driver’s license. Similarly situated people are not treated differently under the statute, thus there is no equal protection violation,” Watson wrote.

Interestingly, the Kansas Department of Revenue, which maintains and controls the distribution of driver’s licenses in the state, utilized a database for years that essentially synonymized “sex” and “gender.”

For example, if a person born “male” at birth applied for a license in Kansas, up until a federal law standardizing government database criteria passed in 2007, the employee at the Kansas Department of Revenue would enter “male” into the database under the category of “gender” — not “sex.”

Though the intervenors tried raising this as proof of ambiguity in the law that would necessitate permissions to change sex on a document, the judge said that it was not. More than anything else, Watson found the streamlining of “sex” and “gender” was an effort to “true up” statutory language with the federal REAL ID Act. That law also required things like mandatory facial image captures, proof of citizenship to obtain a license and licenses to be issued with tamper-proof security technology.

To reach her decision, the judge considered testimony from several witnesses, court records show, including a witness for the attorney general who testified that from 2011 to 2022, there were 9.3 million driver’s licenses issued and that in that time, only 552 people had requested a change to their sex designation. Most of the requests were made in the front end of 2023.

A sheriff of Shawnee County, Kansas, also testified. Though he was eventually struck as an expert, court records show he was permitted to testify as a fact witness. The sheriff relayed anecdotal concerns: once, when arresting a transgender person who was trying to stab their landlord, he said the individual told him he was a man. But once at jail, staff reported the person’s “true criminal history appeared when run through a records check as a woman.”

The judge also heard testimony from a family care physician from rural Rooks County, Kansas, who said that “all” of her patients who have been allowed to change their sex on their driver’s license to reflect their identity, suffer from less anxiety and depression. The “fear and hypervigilance transgender people feel if their desired sex designation is not on their license can become crippling,” the physician said.

Whether the ACLU will appeal the ruling is unclear. A representative for the intervenors did not immediately respond to a request for comment.

In addition to Kansas, The Associated Press reported that laws defining “man” and “woman” stand in North Dakota, Montana and Tennessee. Similar legislation has also been introduced in more than a dozen states.