EXPERT: Gender marker issue could go to Kansas Supreme Court

TOPEKA (KSNT)- Following a district court judge's order to stop changing sex listings on Kansas driver's licenses, experts say the issue may go to the Kansas Supreme Court.

Kansas Capitol Bureau spoke with Topeka political analyst Bob Beatty about the judge's temporary order.

Beatty said it's a common practice that takes place as legal proceedings are underway.

"This is fairly typical... in that judges like to be overly cautious because they don't know how the case is going to end up," he said.

The temporary order, which is set for two weeks, comes ahead of the first hearing in a lawsuit Republican Attorney General Kris Kobach filed last week.

The order prevents transgender Kansans from updating their sex listing to reflect the gender they identify with on driver's licenses. It also requires that any newly issued or reissued licenses must reflect someone's biological sex at birth, as defined under the state's new law.

Beatty said the issue is likely to go beyond district court.

"We see a case go to a lower court, and then a decision is made, and we'll see an appeal," Beatty said. "And, those appeals often can go as high as the Kansas Supreme Court, and they can be overturned. So, I believe that all the parties involved in this litigation, to be honest, may be anticipating that this will go beyond the district court."

The judge presiding over the case, Teresa L. Watson, was appointed by former Republican Gov. Sam Brownback to serve as a district court judge in Shawnee County in 2014.

Meanwhile, Beatty said a number of Kansas Supreme Court justices have been appointed by current democratic Governor Laura Kelly and former democratic Governor Kathleen Sebelius.

"Judges always say they make the best decisions possible, but they have a different way of looking at cases... in terms of their judicial interpretation of the U.S. Constitution and state laws..." he explained. "It's not that it's necessarily political... it's that appointees from different political parties can have different ways of interpreting how laws are made and how the U.S. Constitution says they should be interpreted. So, we may see some different interpretation of the transgender laws, depending on which court these cases end up in."

In the order, arguments for law enforcement's ability to identify license holders are cited. The order states that "allowing Respondents to issue non-compliant driver’s licenses pending a court hearing is an immediate and irreparable injury that supports the grant of a temporary restraining order on the terms requested by the Attorney General."

"The Attorney General points out that driver’s licenses are issued for a period of six years and are difficult to take back or out of circulation once issued. Licenses are used by law enforcement to identify criminal suspects, crime victims, wanted persons, missing persons, and others. Compliance with stated legal requirements for identifying license holders is a public safety concern. Allowing Respondents to issue non-compliant driver’s licenses pending a court hearing is an immediate and irreparable injury that supports the grant of a temporary restraining order on the terms requested by the Attorney General."

HON. TERESA L. WATSON DISTRICT COURT JUDGE

Republican-led efforts to rein in gender marker practices intensified earlier this month, after Attorney General Kobach released his legal opinion on a new law defining biological sex, SB 180.

Kansas Capitol Bureau spoke with Attorney General Kobach on Topeka political show "Inside Kansas Politics" last week. He argues the new law calls for agencies to identify individuals by their biological sex at birth on state records, like birth certificates and driver's licenses.

"It's not a canvas on which one can paint one's desires and expressions and aspirations... it's a state document with state data and the state decides what that information is," Kobach said. "And the Legislature said very clearly that the type of data we want is biological sex at birth."

According to the law, any school district, or public school thereof, and any state agency, department or office or political subdivision that collects vital statistics for the purpose of complying with anti-discrimination laws or for the purpose of gathering accurate public health, crime, economic or other data shall identify each individual who is part of the collected data set as either male or female at birth.

Kansas Capitol Bureau also spoke with Micah Kubic, Executive Director of the ACLU of Kansas, about Kobach's legal opinion.

"He has no authority over executive agencies... over the Kansas Department of Revenue, which runs the driver's license offices...or the Kansas Department of Health and Environment, which runs the driver's license processes," Kubic said. "Those executive agencies have the ability to set their own rule within the law."