A district judge in Kansas has declined to prevent enforcement of a state law that invalidates state-issued identification documents that record an individual’s self-preferred gender rather than sex, and further requires individuals to use single-sex facilities in accordance with their biological sex.
“This Court simply does not have the information the law requires to enter a Temporary Restraining Order at this stage of the proceedings,” says a six-page decision written by Douglas County District Judge James McCabria that was filed on Tuesday.
It adds, “Each side tells the Court ‘harm will happen’ to their side no matter that the Court does. But the Court cannot fairly analyze important concepts like injury to personal autonomy, informational privacy or equality under the law (or even determine whether they apply) without examining well-developed factual scenarios that have been subjected to challenge and debate.”
The ACLU filed suit against Kansas in late February to challenge the law, claiming that it violates procedural due process, the right to privacy, the right to equality, and the right to free expression, among other things. Meanwhile, the Trans Liberty PAC — which brands itself as “the nation’s first political action committee dedicated solely to protecting and advancing the rights of transgender Americans” — announced an “emergency evacuation” project called “Operation Lifeboat” to help transgender-identifying individuals leave the state.
“Kansas law puts transgender people in an impossible position,” says the ACLU Kansas chapter. “For transgender people, using the restroom consistent with their gender and how they live their lives, is now against the law in government buildings. But using the restroom consistent with their sex at birth in government buildings may out them as transgender and be unsafe. Either way, transgender people may be punished and harassed.”
Kansas passed Senate Bill 244 in February when a supermajority of the state legislature overrode Governor Laura Kelly’s veto.
The bill requires individuals to use sex-specific facilities in accordance with their sex, and further establishes new civil and criminal penalties to enforce such policies. Exceptions that allow entering a single-sex facility reserved for the opposite sex include custodial duties, conducting maintenance work or an inspection, and accompanying a person who requires physical assistance.
An individual who commits a second violation of such policies is liable to a civil penalty of $1,000. Legal action may be brought by the attorney general if the violation occurred in a state building, or by the county or county’s district attorney if the violations occurred in a municipal building.
The law also creates a private right of action by allowing an “aggrieved” individual to sue a transgender-identifying person who is using a single-sex facility of the opposite sex; the aggrieved individual may seek either actual damages or liquidated damages amounting to $1,000, as well as declaratory and injunctive relief. Furthermore, a public entity that fails to properly enforce the bathroom guidelines could face $25,000 fine on first offense and $125,000 fines on subsequent offenses.
The Human Rights Campaign organization deemed SB 244 “equally bizarre and cruel” in a press release, and further alleged the law enables “bounty-style lawsuits to be filed by those who believe they’ve shared a bathroom with a transgender person for ‘damages’ of at least $1,000.”
Additionally, the bill modifies previous policies regarding state-issued identification documents. It invalidates existing driver’s licenses, state IDs, and birth certificates issued by Kansas that were previously amended to reflect an individual’s preferred gender identity rather than sex. The bill also disallows future changes to one’s state-issued identification documents as it pertains to biological sex.
“The inability to obtain or maintain identity documents that reflect one’s gender identity has been shown to have detrimental effects on the health of transgender people, including because it exacerbates gender dysphoria and causes psychological harm,” says the lawsuit, dated February 26.
The law came into effect on February 26, and the Kansas Department of Revenue has sent written notice to individuals with affected licenses.
“Under Senate Bill 244, all Kansas credentials that do not reflect sex assigned at birth are immediately invalidated, and you may be subject to additional penalties if you are operating a vehicle without a valid credential. Additionally, you will be unable to purchase age-restricted items with an invalid credential,” the state’s Department of Revenue says on its website. “Pursuant to this new law, if the gender/sex indication on the face of your current credential does not match your sex assigned at birth, you are directed to surrender your current credential. . . Upon surrendering the credential, you will be issued a new credential reflecting the gender identification consistent with statutory requirements. You do not need to bring additional materials to receive your new credential.”
A spokesman for the agency told the Kansas Reflector the law invalidated about 1,700 licenses, while a spokesperson for the Kansas Department of Health and Environment told the paper that nearly 2,000 birth certificates have had the recorded sex amended, although such changes may be attributed to correcting erroneous data entries.
In response to the bill, Trans Liberty issued a “a statewide evacuation warning for all trans people in Kansas” and launched a “disaster-style evacuation operation for transgender Kansans” called “Operation Lifeboat” to be led by veterans and volunteers.
“[Operation Lifeboat is] an emergency evacuation and support operation deploying disaster response professionals and U.S. military veterans to assist transgender residents of Kansas following the enactment of SB 244, the first law in American history to retroactively strip lawfully issued identity documents from transgender citizens,” says a press release.
The website dedicated to the “evacuation” project claims it is working to provide transportation out of the state, help with moving, assistance with breaking a lease, financial aid, legal advice, escorts to the DMV, “safety support” for those who remain in Kansas, and connections to housing and employment after relocation.
In his decision on Tuesday, Judge McCabria suggested that transgender-identifying residents have largely enjoyed safety in the state.
“In hearing the arguments of each side, the Court is struck by a basic assumption each side makes about the other — that our ‘lesser angels’ drive our choices,” reads the decision. “Yet, the very paucity of actual examples that either side has put forward in any of the arguments suggests the opposite — that the vast majority of Kansans are tolerant, understanding, accepting and generally supportive of each other and that the vast majority of transgender persons have experienced this as Kansans.” (Emphasis retained from original.)
The Kansas Reflector reported in early February that, after the bill had passed in the state house and senate but had not yet been vetoed by the governor, about 50 people joined a “pee-in” protest at the state Capitol building and used their preferred restroom.