Kansas v. Harper

Citing a 2023 law passed by the Kansas state legislature over a veto by Kansas Governor Laura Kelly, Attorney General Kobach filed a lawsuit in state court on July 7, 2023 against the government agency that issues driver’s licenses, asking the court to prohibit transgender people from changing the gender markers on their driver’s licenses to reflect their gender identity, and to require the state agency to list sex assigned at birth on all new and renewed licenses.

Shortly thereafter, the ACLU of Kansas, the ACLU, and Stinson LLP successfully intervened in the case on behalf of transgender Kansans threatened by the Attorney General’s lawsuit. Following an evidentiary hearing in January 2024, the district court granted the Attorney General’s motion for a preliminary injunction, and our clients and the licensing agency appealed. Those appeals are currently pending in the Kansas Court of Appeals and were argued in January 2025. Meanwhile, the parties have briefed summary judgment in the district court, but further proceedings are stayed pending the outcome on the existing appeals.

SB 180, the law being used by Attorney General Kobach, rigidly defines one’s “sex” based upon the sex assigned at birth and defines “male” and “female” based on one's reproductive capacity. The new definition applies “with respect to the application of an individual’s biological sex pursuant to any state law, rules or regulations.

Courts have routinely rejected efforts by states to force transgender people to carry identity documents with a gender marker inconsistent with their gender identity. The intervenors in this case argue that SB 180's plain terms preclude its application to driver's licenses and that, to the extent the law is ambiguous, Kansas courts should interpret it to avoid violating the state constitutional rights of transgender people.