Lambda Legal today denounced Kansas Attorney General Kris Kobach’s effort to roll back the 2019 consent judgment between Lambda Legal and the Kansas Department of Health & Environment that established the right of transgender people born in Kansas to correct their birth certificates to accurately reflect who they are.
Late last night, Attorney General Kobach filed a motion in the U.S. District Court for the District of Kansas seeking to nullify the 2019 consent judgment that resulted from Lambda Legal’s 2018 challenge to Kansas’s then discriminatory birth certificate policy, Foster v. Andersen. Kobach alleged that the inclusive birth certificate policy conflicts with Kansas Senate Bill 180, the recently enacted law which requires state agencies that collect vital statistics to identify each individual who is part of the collected data set as either male or female at birth. Kansas Gov. Laura Kelly vetoed SB180 in April, but her veto was overridden by the State Senate a few weeks later.
In response, Lambda Legal Counsel and Health Care Strategist Omar Gonzalez-Pagan, who served as lead counsel in Foster v. Andersen, released the following statement:
“We wholeheartedly oppose and strongly repudiate this attempt by Kansas Attorney General Kris Kobach to roll back a mutually agreed-upon judgment that recognized the unconstitutionality of Kansas’s former birth certificate policy and required a non-discriminatory policy – implemented without incident – that since 2019 has allowed transgender people born in Kansas to correct their birth certificates to accurately reflect who they are. SB 180, while misguided and discriminatory, does not conflict with the Consent Judgment approved by the Court in 2019. And even if it did, SB 180 does not present a sufficient basis for the State of Kansas to escape its obligations under a federal judgment. We have a supremacy clause for a reason.
“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. Let us be clear, Lambda Legal will not allow the Attorney General to nullify a binding, years-old federal judgment. In the meantime, lest there be any doubt, the state’s Office of Vital Statistics cannot refuse applications to correct gender markers.”
Lambda Legal filed Foster v. Andersen in October 2018 in the U.S. District Court for the District of Kansas on behalf of four transgender individuals born in Kansas – Nyla Foster, Luc Bensimon, Jessica Hicklin and a client identified by his initials, C.K. The lawsuit also has an organizational plaintiff, the Kansas Statewide Transgender Education Project, Inc. (K-STEP), which was founded by transgender Kansas advocate Stephanie Mott, who spearheaded the group until her death in March 2019.
Under the consent judgment entered by the U.S. District Court for the District of Kansas, the court ordered the Secretary for the Kansas Department of Health and Environment and other Kansas government officials to provide accurate birth certificates that reflect their true sex, consistent with their gender identity, and agrees that the policy prohibiting gender marker corrections to birth certificates violated the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment.