TOPEKA (KSNT) – Kansas Attorney General Kris Kobach is weighing in on the latest court fight over gender markers. After a judge struck down a 2019 consent decree, effectively banning gender marker changes on birth certificates, all eyes are on a district court fight over gender markers on licenses.

A Shawnee County district court judge is allowing the ACLU of Kansas to intervene in the lawsuit, raising questions about the constitutionality of SB 180. It’s been three months since the law, which defines biological sex, has been in effect.

“I believe it absolutely is constitutional,” Kobach said in an interview with Inside Kansas Politics host Rebekah Chung. “To make the argument that it’s unconstitutional, you have to make an argument that I think most people would agree is a bit of a stretch. One of the arguments that the challengers make is they say it violates someone’s First Amendment rights, someone’s freedom of expression to have their sex at birth on their birth certificate when they want something else on their birth certificate. The problem with that argument is your birth certificate isn’t you speaking, it’s actually a government document. It’s the government speaking. And so, for me to argue I want to change what the government says as part of my free speech claim that argument doesn’t really fly. It’s not you speaking on your birth certificate. So that’s one of their arguments there may be others that they try to make but I think it’s a long shot for them. And we are happy to defend this law in court and we will meet them in court if they bring that case. Which we anticipate they may do.”

In the past, opponents of a gender marker ban have argued it raises privacy concerns. An example would be the employment process. People are usually required to submit proof of identity and employment authorization including a birth certificate. If the gender listed on the birth certificate doesn’t match an individual’s identity, information about them being transgender may be outed.

Opponents argue this would subject them to discrimination or violence.

“So that argument is an attempt to string multiple ideas all together into one argument. If you are applying for a job, and, for whatever reason, that particular job that particular employer needs your birth certificate, you’re already providing the document that, the birth certificate is often regarded as containing privacy. It’s a private document for all of us, but you are already consenting to give that document to the employer to whatever agency is your seeking employment from,” Kobach said. “So it’s a bit of a stretch to say ‘OK, well I’m conceding my privacy claim by giving the document voluntarily to get the job. But maybe down the road, somebody will learn something about the employer.’ You know it’s a chain of events. That is hard to string together that chain of events and say, ‘Ah-Ha my privacy has been violated by the state agency’ which isn’t even a part of that transaction.”

The right to privacy is not explicitly mentioned in the Constitution, but it’s been recognized through a series of legal interpretations and amendments. Many argue that the right to privacy, while not explicit but rather implied, is protected under the Constitution.

“So this is one of the most interesting and oldest constitutional debates of the last 75 years,” Kobach said. “…The word privacy does not appear in the Constitution, but there are, as you mentioned, certain constitutional rights in our Bill of Rights that reflect different slices of privacy. And so the one that most obviously does so is the right against unreasonable search and seizure of your home, which clearly protects your right to privacy in the home.”

A court date is set for January 2024, but until then, Kansans are not able to change their gender markers on driver licenses.

Coming up on the next episode of Inside Kansas Politics, D.C. Hiegert with the ACLU of Kansas is weighing in on the legal battle over gender markers and what the ACLU of Kansas is doing to challenge Kris Kobach’s challenge over gender markers on driver licenses.

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