Kansas, Other States Threaten To Undo Legal Gender Changes; What To Do

Kansas, Montana, North Dakota, and Tennessee all have passed laws "defining sex" to exclude trans people. Now Kansas intends to revert all gender changes back legally. Here's what you can do.

In a shocking announcement, Attorney General Kris Kobach of Kansas released an official opinion on Monday that will threaten transgender people’s legal documents in the state. If Kobach’s opinion is enforced, transgender individuals who had moved ahead and legally corrected their birth certificates and driver’s licenses now may have their corrections reversed. The wrong gender marker may be placed on all legal documents provided by the state.

Kansas Senate Bill 180, passed in April, defines sex as “biologically determined at birth.” Kobach interpreted this to mean that state agencies must now revert the gender markers on driver’s licenses and birth certificates for transgender people in the state, even if they were changed legally in the past. This is an unprecedented move; transgender people who have changed their legal documents have often seen those changes as safe from legal interference once the process has been completed.

Kansas is not the only state that could begin taking such steps. North Dakota, Tennessee, and Montana have also passed similar bills this year. There is concern that these states may follow Kansas’ lead in enforcement, leaving transgender people uncertain about how to proceed and protect their legal gender changes.

You can see the relevant portion of Kobach’s opinion on drivers licenses and birth certificates here:

Attorney General Kris Kobach’s opinion that drivers licenses must be rolled back.

Attorney General Kris Kobach’s opinion that birth certificates must be rolled back.

The consequences of rolling back transgender people’s legal markers would be disastrous and fraught with difficulty. The state would have to compile a list of people who have changed their gender marker and determine the reason that each change was made, otherwise it would risk overturning gender markers for intersex people as well—a risk they may decide to take. It would potentially make it so that transgender people stopped by police will come under extra scrutiny for not having a matching gender marker or gender presentation. Likewise, it could affect the way transgender people are treated in situations where they do not wish to disclose their gender identity, such as presenting it in restaurants, bars, or at entertainment venues.

Furthermore, transgender people who are made to have incorrect gender markers are much more likely to experience harassment and abuse. For transgender people whose ID’s listed the wrong gender, a third of them reported harassment or abuse happening directly from the mismatch. This ranged from verbal harassment to denial of services and even assault. Correct gender markers reduce suicide risk by up to 50% for transgender people - it is an essential part of transition for many.

ACLU Report on US Transgender Survey

Although Kansas is the first state where there is potential action to reverse changes to gender markers, it is not alone. In Montana, HB 458 gained notoriety when transgender Rep. Zooey Zephyr stood up in protest after being silenced and denied the opportunity to speak on the bill. This legislation defines sex as binary and eliminates protections for transgender people in 41 sections of code. Similarly, Tennessee and North Dakota have passed comparable laws. This has prompted organizations, including The Name Change Project, to hold expedited legal clinics to assist transgender individuals in changing their IDs ahead of the Tennessee law taking effect on July 1.

Many transgender people may be concerned over what to do next if they live in these states. Reading Kris Kobach’s opinion, it is possible to see some ways that the damage can be mitigated in the immediate term. According to The Associated Press, Kobach emphasized that transgender individuals would not have to relinquish documents they already possess, but the documents would not be legally correct. This also applies to birth certificates. Instead, any new copies of birth certificates or driver's licenses issued in the future would reflect their original gender markers. Consequently, there is an avenue for transgender individuals to safeguard themselves in the short term in these states:

• If you live in states that have passed or could pass these laws and have not had your markers changed, it may be prudent to get gender marker changes done now. Contact your local LGBTQ+ organization to learn how - if you are in Tennessee, the Name Change Project may be your best bet until July 1st, 2023.

• If your gender marker is already changed, get several copies of your birth certificate. Kobach points out that you would not be required to surrender old copies, and so you can likely continue to use these for the rest of your life as birth certificates do not typically expire.

• If your drivers license is coming up for renewal, renew your drivers license before the law’s deadline. This will give you the maximum amount of time you can have a correct marker on your drivers license.

• If you are affected by these laws, contact your local LGBTQ+ organizations or legal organizations. These organizations will be looking for plaintiffs.

While these laws only passed in three states this year, several other states considered passing similar legislation. It is anticipated that more states will pass laws like this next year. This map shows the legislative progress on “define sex” laws this year - all states in any shade of red on this map are highly at risk of passing a similar law next legislative cycle:

Legislation that targets transgender adults legal documents is something that many Republican supermajority states have tried before. The calculated maneuver of redefining sex to systematically exclude transgender individuals is an attempt to sidestep legal challenges. These laws represent a clear attempt to move beyond targeting transgender youth and the beginning of the campaign to eradicate transgender adults from all legal protections. Taking steps now may delay the impact until favorable court victories can occur.