TOPEKA, Kan. -- A federal judge ruled Thursday that Kansas officials are no longer required to change transgender people's birth certificates so the documents reflect their gender identities, a loss for those who fought for that ability and leaves questions on how the state will respond.
Since 2019, a federal consent agreement required Kansas officials to change a person's gender identity on their birth certificate when asked. But Republican Attorney General Kris Kobach asked the court to stop enforcing that agreement because of a new state law that defines male and female as the sex assigned at birth.
Judge Daniel Crabtree granted Kobach's request and changed the federal agreement to remove the requirement. However, Crabtree said it will ultimately be up to a state court to decide whether the new law is constitutional. The new law, which took effect July 1, is among efforts nationwide to roll back trans rights.
Montana, Oklahoma and Tennessee already bar such birth certificate changes. Kansas is for now among a few states that don't let trans people change their driver's licenses to reflect their gender identities. That's because of a separate state-court lawsuit Kobach filed in July.
Luc Bensimon, a Topeka trans man who was one of the original plaintiffs who fought to change their birth certificates, said he was having trouble making sense of Thursday's ruling and wonders whether the state will try to forcefully reverse the gender change on his birth certificate.
"I'm not OK with that," Bensimon said. "And I don't really have any words right now. ... It's just -- I'm not okay with that."
But his lawyer, Omar Gonzalez-Pagan, said he doesn't think the ruling will have any effect on birth certificates that were already changed -- only new ones. And he said it's not clear how Democratic Gov. Laura Kelly will respond and what she will tell state agencies to do.
The Kansas law defines male and female based on a person's "biological reproductive system," applying those definitions to any other state law or regulation. The Republican-controlled Legislature enacted it over Kelly's veto, but she announced shortly before it took effect that birth certificate changes would continue, citing opinions from attorneys in her administration that they could.
A state court will ultimately decide if the law defining gender will stand.
"The court has genuine misgivings about inserting itself into the dispute about the meaning of the new Kansas law, SB 180," Crabtree said in his ruling. "Absent some issue arising under federal law, a dispute about the meaning of Kansas law belongs in a Kansas state courthouse."
Crabtree's ruling removes part of a 2018 settlement Kelly's administration agreed to with four transgender people who challenged a previous Republican no-changes policy. The settlement came only months after Kelly took office in 2019 and required the state to start changing trans people's birth certificates. More than 900 people have done so since.
Transgender Kansas residents and Kelly argued that refusing to change birth certificates would violate rights protected by the U.S. Constitution, something Crabtree said in his brief order approving the settlement four years ago. Kobach argued that the settlement represented only the views of the parties and the new state law represents a big enough change to nullify the settlement's requirements.
The transgender Kansas residents who sued the state in 2018 argued that siding with Kobach would allow the state to return to a policy that violated people's constitutional rights.
In one scathing passage in a recent court filing, their attorneys asked whether Kobach would argue states could ignore the U.S. Supreme Court's historic Brown v. Board of Education of Topeka ruling in 1954 outlawing racially segregated schools if their lawmakers simply passed a new law ordering segregation.
"The answer is clearly no," they wrote.