Case: Kansas v. Harper

In 2023, the Kansas state legislature passed SB 180, which strictly defines “sex” under Kansas law as being based on the gender assigned at birth and defines “male” and “female” being based on one’s reproductive capacity. This new law passed in the state legislature over the veto of the governor of Kansas. Citing this state law, on July 7, 2023, the Attorney General of Kansas brought a lawsuit against the Director of Vehicles and the Secretary of Revenue in the District Court of Shawnee County, Kansas. The Attorney General asked the court to prohibit state agencies from allowing transgender people to change the gender markers on their driver’s licenses, and to require that sex assigned at birth be listed on any renewals and new licenses issued. This case was assigned to Judge Teresa L. Watson.

Also on July 7, 2023, the Attorney General filed a motion for temporary restraining order (TRO) and for temporary injunction, asking the court to enjoin the state agencies from allowing transgender people to change their gender markers on state licenses while the lawsuit was pending.

The court issued the TRO three days later, on July 10, 2023. Under Kansas state law, a court may issue a TRO without notice to the adverse party if specific facts show that immediate and irreparable injury or damage will result before the adverse party can be heard in opposition. Judge Watson found that compliance with the stated legal requirements for identifying license holders is a public safety concern, and therefore found that allowing the state agencies to issue non-compliant driver’s licenses pending a court hearing was an immediate and irreparable injury. For these reasons, the court granted a TRO for a period of fourteen days.

On the same day, July 10, 2023, defendants filed a motion to dissolve the TRO, advancing several lines of argumentation as to why the TRO should not be in place. First, they argued that SB 180 applies primarily to vital statistics at birth (i.e. birth certificates) and not to driver’s licenses, which are necessarily continuously changing for the license holder to provide current information about themselves to the government or third parties. Second, in 2007, SB 9 changed the “sex” designation on driver’s licenses to a “gender” designation, and since then defendants have listed the expressed gender of the license holder on their license, regardless of sex assigned at birth. Therefore, the TRO issued without a hearing would improperly change the status quo if maintained by the court. Third, they argued that sex and gender are different according to those who study the topic. Fourth, they argued that the Attorney General had alleged no actual injury other than the hypothetical as a result of their current practice of issuing gender changes on Kansas driver’s licenses, and therefore did not warrant a TRO. Finally, they argued that maintaining the TRO would harm the state of Kansas by forcing its residents that depend on their driver’s licenses to indicate their gender to employers and others to explain the gender on their license and how they present to society. Defendants also anticipated that should they be required under the TRO to alter resident’s licenses to list their biological sex, the state of Kansas would be harmed because residents would likely bring legal claims, including violation of the Americans with Disability Act, Section 1 of the Kansas Constitution, and the Equal Protections Clause of the US Constitution.

The parties later agreed to extend the TRO until the court could resolve the Attorney General’s motion for temporary injunction.

Represented by the ACLU of Kansas, on July 11, 2023, five transgender Kansans wishing to obtain or maintain a Kansas driver’s license with a gender marker that matches their gender identity filed a motion to intervene in this case. The intervenors argued that the court should grant their motion to intervene because (1) their motion was timely, (2) they would be harmed should the Attorney General be granted the requested relief, (3) the state agency defendants were primarily interested in complying with the relevant Kansas statutes, and as such did not adequately represent intervenors’ interests, and (4) intervenors argued that the application of SB 180 to their drivers’ licenses would violate their rights under Section 1 of the Kansas constitution, which says: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”

The Attorney General opposed the motion to intervene, arguing that the question of the constitutionality of applying SB 180 to driver’s licenses was not yet ripe because the state had not yet applied SB 180 to driver’s licenses, and that intervenors lacked standing because they had not yet been harmed. The Attorney General also argued that allowing the intervention would delay what should be a straight-forward case.

The court granted the motion to intervene on August 18, 2023. 2023 Kan. Dist. LEXIS 46. The court allowed permissive intervention, finding that intervenors had a claim that shared a common question of law or fact with the main action. Judge Watson also found that allowing the intervention would not prejudice the Attorney General because the intervenors assured the court that they could comply with the briefing deadlines already set, and agreed to give the Attorney General additional time for discovery should it become necessary.

Following a period of discovery and a two-day evidentiary hearing, the court granted the Attorney General’s motion for temporary injunction on March 11, 2024. The court first found that as a matter of law, SB 180 applies to Kansas driver’s licenses. The court also rejected intervenors’ argument that SB 180 as applied to driver’s licenses violates their rights to personal autonomy, informational privacy, and equal protection under Section 1 of the Kansas Constitution. Specifically, the court found that listing transgender individuals’ sex assigned at birth on their driver’s licenses (1) does not interfere with their ability to control their own bodies or assert bodily integrity, (2) does not violate any right to informational privacy because no such right has been established under the Kansas Constitution, and (3) does not create any sort of classification or disparate treatment, and so cannot violate equal protections. Finally, the court again reiterated that allowing the state agencies to issue non-compliant driver’s licenses would lead to irreparable injury. For these reasons, the state agency defendants are required to list Kansans assigned sex at birth on their driver’s licenses while this litigation proceeds.

As of April 4, 2024, this case is ongoing.