TOPEKA (KSNT) – A legal battle is brewing over a new law that took effect July 1. Kansas Attorney General Kris Kobach’s legal opinion over SB 180 is getting snubbed by Kansas Governor Laura Kelly. Kobach says SB 180, which defines biological sex, also means that driver’s licenses and birth certificates must reflect sex at birth.

27 News Capitol Bureau Chief Rebekah Chung sat down with Micah Kubic, executive director of the ACLU of Kansas and Kobach to get their opinions.

In addition to his legal opinion, Kobach is also requesting the state of Kansas not follow a 2019 “consent decree,” which is a legally binding agreement that requires the state to update gender markers on birth certificates for transgender Kansans.

“So, Mr. Kobach filed this motion late in the evening last Friday asking permission essentially to no longer follow the constitution. Because the 2019 ruling by a federal district court said that the state of Kansas has to treat everyone fairly, has to treat transgender Kansans fairly, and give them the opportunity to change their birth certificates. But also, folks who had clerical errors on their birth certificates,” Kubic, of the ACLU, said. “Mr. Kobach has basically said that because the state legislature has passed a vague discriminatory law of its own that the state should no longer follow the constitution.”

Following Kobach’s filing, the ACLU of Kansas released a statement.

“Mr. Kobach should rethink the wisdom and the sheer indecency of this attempt to weaponize his office’s authority to attack transgender Kansans just trying to live their lives.”

Micah Kubic, Executive Director of the ACLU of Kansas

Lambda Legal, the organization that filed a federal lawsuit that led to the consent decree, also issued the following statement.

“Today’s action represents yet another unnecessary and cruel move to target the transgender community with animus and discrimination for political gain. We will vigorously oppose this gimmick by Attorney General Kobach.”

Lambda Legal

Kansas Governor Laura Kelly has directed state agencies to follow their own legal council’s advice against Kobach’s opinion to update gender markers on driver’s licenses and birth certificates.

“So, I think there is no question that when Mr. Kobach issued his advisory opinion earlier this week that was his opinion and his opinion alone,” Kubic said. “As an American, he has every right to have any opinions he likes and to put them out there in the world, but he has no authority over executive agencies, over the Kansas Department of Revenue (KDOR), or the Kansas Department of Environment (KDHE). I think they have interpreted the law correctly and properly in this circumstance.”

Transgender advocates are rallying statewide mainly concerned over what this could mean for their ability to use public areas like restrooms and locker rooms. But Kobach’s legal opinion doesn’t touch on those areas. Others believe that it will soon be on the horizon to where it will cover those areas.

“Well, I think the bill was intentionally vague and unclear,” Kubic said. “It certainly does not have any enforcement mechanism at all. What the law does is it establishes an unscientific and totally outdated and inaccurate definition of sex in state statute based on biological sex at birth. But it doesn’t really say anything else about how to implement that or how it will be enforced.”

Kubic goes on to say that he thinks that was by design. Without any enforcement mechanism, it is creating an environment of fear.

Kansas Attorney General Kris Kobach says if it comes down to it he will sue if state agencies don’t follow the new law. This was after Governor Kelly directed state agencies to defy his legal opinion on SB 180. 

“It’s not that she went against the legal opinion, the legal opinion just lays out what the law says, that the legislature passed a law over the governor’s veto and they got the two-thirds majority to override and the law states very clearly that agencies that collect vital statistics and other data…that they must list a person’s biological sex at birth,” Kobach said. “And that’s black and white right there in the law. And the governor saying, ‘Well nothing going to change. We’re going to continue changing people’s birth certificates sex and driver’s licenses sex if they make the request.’ She’s defying the clear language of the law and you know you can’t just veto a bill, get overwritten, and pretend as if your veto succeeded.”

Kobach says the governor is defying the law, but state agencies’ legal council is saying what they are doing right now is not defying the law.

“I don’t see how they can possibly reach that opinion,” Kobach said. “They’ll have to make that case before a judge. But this is one where the law is crystal clear. And we all saw it in the last few months. The debates in the legislature were very clear. They wanted to make sure that these state documents reflect biological sex and are not subject to change based on a person’s desire to transition their genders.”

Kobach goes on to say that the legislature made it clear it was their intent to do this and the law they drafted and passed does this.

One of the arguments is that Kobach’s legal opinion is not legally binding, it’s the interpretation of the law by the Kansas attorney general’s office. The Kelly administration says it doesn’t have to follow it.

“Well, any attorney, she is correct in the sense that an Attorney General’s opinion is the top attorney’s opinion for the rest of the state agencies. So, it’s like if you’re a client and your attorney tells you, ‘Well this is what the law says you have to do’ you can say ‘well I don’t want to do that,'” Kobach said. “She is not legally bound to do this. However, traditionally when an attorney general issues an opinion the state government would follow it. So, it’s pretty extraordinary for a governor to say, ‘No we’re not going to follow the reasoned advice of the Attorney General and no we’re not going to follow the clear text of the law.'”

Kobach went on to say that this is a very unusual situation Kansas is in right now. Where you have a governor who just tried to veto a law and is now saying she’s not going to follow what is clearly the intent of the law.

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