Kansas officials should not be required to change official birth certificates when transgender people ask them to do so under a new state law, a federal judge said.
U.S. District Judge Daniel Crabtree ruled Thursday that a new Kansas state law requiring birth certificates to reflect the male and female biological sex assigned to the individual at birth could be enforced, despite its clash with a federal agreement and ongoing legal challenges.
Previously, a federal consent agreement from 2018 required officials to change a person’s gender identity on their birth certificate when asked. It was first enforced the following year, in 2019. The judge said the federal agreement could be amended as the legality of the new Kansas law is determined at the state level.
“The court has genuine misgivings about inserting itself into the dispute about the meaning of the new Kansas law, SB 180,” Crabtree said in his ruling. “Absent some issue arising under federal law, a dispute about the meaning of Kansas law belongs in a Kansas state courthouse.”
The decision came at the request of the state’s Republican Attorney General Kris Kobach, who argued in a recent filing in a federal lawsuit that keeping the full 2019 settlement in place is “explicitly anti-democratic” because it conflicts directly with the new law.
“The court held that SB 180 means what it says — birth certificates in Kansas must reflect biological sex,” he said. “As long as I am attorney general, the laws of Kansas will be enforced as written. The Legislature decided that birth certificates must reflect biological reality, and they were quite clear in how they wrote the law.”
Kobach added, “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.”
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Before Thursday’s decision, Kansas Democratic Gov. Laura Kelly vowed to continue changing birth certificates despite the new law, which she vetoed but was overridden.
Thursday’s decision allowed Kansas to become the latest state, joining Montana, Oklahoma and Tennessee, to bar such birth certificate changes.
The new law, which took effect July 1, is facing legal changes from trans rights activists.
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Luc Bensimon, a Topeka trans man who was one of the original plaintiffs who fought to change their birth certificates, said he was having trouble making sense of Thursday’s ruling.
“I’m not OK with that,” Bensimon said.
“I don’t really have any words right now. … It’s just — I’m not okay with that,” he added.
“I’m pretty upset right now. I’m just trying to figure this out.”
His lawyer, Omar Gonzalez-Pagan, clarified he does not think the ruling will impact birth certificates that have already been changed — only new ones.
Gonzalez-Pagan suggested Thursday’s ruling no longer requires the state agency to make changes but does not prevent it from willfully doing so. It could continue changing genders on birth certificates, the attorney explained.
The new Kansas law defines male and female based on a person’s “biological reproductive system,” applying those definitions to any other state law or regulation. 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.
Crabtree, an appointee of former President Obama, said a state court will ultimately decide if it will stand.
More than 900 people have changed the genders on their birth certificates since the 2018 settlement allowing the change.
Kelly and Kobach ran against each other in 2018 to be Kansas governor, with Kelly ultimately winning.
Last year, Kobach won the attorney general’s race, and Kelly won her second term.
The Associated Press contributed to this report.
