Kansas Judge Says State Must List Biological Sex, Not Preferred Gender, on Driver’s Licenses

A file photo of the Progress Pride flag. Angela Weiss/AFP via Getty Images

A Kansas judge has ruled that the state is within its constitutional rights to refuse recognition of a person’s preferred gender on driver’s licenses.

On March 11, District Court Judge Theresa Watson granted a temporary injunction, filed by Kansas Attorney General Kris Kobach against the Kansas Department of Revenue (KDOR), blocking the agency from permitting changes of a person’s gender on driver’s licenses.

Mr. Kobach filed a petition for mandamus and injunctive relief related to Senate Bill 180 (SB 180), also known as the “Women’s Bill of Rights,” passed by the Kansas Legislature last year. The bill clarifies the meaning of “male” and “female,” “man” and “woman,” “girl” and “boy,” and “mother” and “father.” Mr. Kobach argued that allowing gender changes on a driver’s license would violate this state law.

In addition, the bill requires that “distinctions between the sexes be considered substantially related to the important governmental objectives of protecting the health, safety, and privacy of individuals” when it comes to athletics and areas such as “prisons or other detention facilities,” “domestic violence” and “rape crisis centers,” “locker rooms” and “restrooms,” and all “other areas where biology, safety, or privacy are implicated that result in separate accommodations.”

The measure also “requires any school district, or public school, and any state agency, department, or office or political subdivision to identify each individual as either male or female at birth who is part of collected vital statistics data sets for the purpose of complying with anti-discrimination laws or gathering accurate public health, crime, economic, or other data.”

Gov. Laura Kelly vetoed the bill on April 20, 2023, but the state Legislature overrode her veto and the law went into effect on July 1.

On June 26, 2023, a few days before SB 180 was to take effect, Mr. Kobach issued a formal opinion stating that the law requires that the KDOR “list the licensee’s ‘biological sex, either male or female, at birth’ on driver’s licenses that it issues” and to “update its data set to reflect the licensee’s sex at birth and include that sex on any licenses it issues to that individual in the future.”

He also noted that another state law requires that driver’s licenses issued by the KDOR’s Division of Vehicles “shall bear” the licensee’s “gender.”

“Although this statute uses the term ‘gender,’ rather than ’sex,‘” he argued, “’gender‘ is often used to mean ’sex.’ Contemporary dictionaries commonly offer ’sex‘ as one definition of ’gender,‘ and ’gender‘ is used to refer to ’sex’ in several other Kansas statutes.”

‘An Unreasonable Stretch’

In her 31-page ruling, Judge Watson agreed that “the plain language of K.S.A. 77-207 requires KDOR to indicate an individual’s biological sex, either male or female, at birth on driver’s licenses and maintain the same information in the KDOR database.”

“Licenses are used by law enforcement to identify criminal suspects, crime victims, wanted persons, missing persons, and others,” Judge Watson wrote. “Compliance with stated legal requirements for identifying license holders is a public safety concern. Allowing KDOR to issue non-compliant driver’s licenses pending a final decision on the merits is an immediate and irreparable injury.”

When Judge Watson permitted transgender residents of Kansas to intervene in Mr. Kobach’s lawsuit, the American Civil Liberties Union (ACLU) argued on their behalf, saying the law violated rights protected by the Kansas State Constitution.

Although the Kansas Supreme Court’s 2019 ruling in Hodes & Nauser, MDs, P.A. v. Schmidt said the state constitution grants a right to bodily autonomy as it relates to abortion and not LGBT rights, the ACLU argued that state law violates three the rights of personal autonomy, informational privacy, and equal protection of the law because it deprives them of personal autonomy, forces them to hold a driver’s license indicating their sex at birth rather than their preferred gender, and forces the “outing” of transgender individuals, which will expose them to psychological and physical harm.

Judge Watson said, “Hodes defined personal autonomy in terms of ’the ability to control one’s own body, to assert bodily integrity, and to exercise self-determination” and that “information recorded on a driver’s license does not interfere with transgender persons’ ability to control their own bodies or assert bodily integrity or self-determination.”

“To apply Hodes to K.S.A. 77-207 here would be an unreasonable stretch,” Judge Watson wrote, adding that “Hodes said Kansans have the right to control their own bodies. It did not say Kansans have a fundamental state constitutional right to control what information is displayed on a state-issued driver’s license.”

“KDOR and Intervenors have little to say about the public interest, other than suggesting it is against the public’s interest for the Court to enforce an unconstitutional law,” Judge Watson wrote in her conclusion. “But this Court has concluded that there is a substantial likelihood the Attorney General will prevail in his effort to enforce K.S.A. 77-207(a) and (c) in the context of driver’s licenses and corresponding information in the KDOR database. A temporary injunction will not be against the public interest.”

The ACLU said on March 14 that it had filed its notice to appeal the decision.