Kansas governor, attorney general spar over enforcement of bill redefining sex

Published: Jun. 29, 2023 at 11:01 PM CDT
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KANSAS CITY, Mo. (KCTV) - Kansas Governor Laura Kelly has directed two state agencies not to follow the legal opinion of Attorney General Kris Kobach regarding whether trans people can change their sex or gender on birth certificates or driver’s licenses.

Moments after she gave that directive on Thursday, Kobach issued a statement calling her administration’s legal reasoning “nonsense” and accusing her of overstepping her authority.

Lawmakers overrode the governor’s veto to make SB 180 law. It is set to go into effect on July 1.

Often referred to as a “bathroom bill,” it legally defines a person’s sex as male or female based on their “biological reproductive system” at birth and states that the definition applies to standard “any” law or state regulation.

On Monday, Kobach issued a legal opinion requiring that the driver’s licenses and birth certificates be changed to reflect that.

The Kansas Department of Revenue (KDOR) is in charge of driver’s licenses and the Kansas Department of Health and Environment (KDHE) handles birth certificates.

The memo from Kelly’s administration that followed stated that the agencies’ lawyers determined the application of the bill is more limited than what Kobach stated.

“I have directed the agencies to follow SB 180 according to their legal counsel’s interpretation of the law,” Kelly said in a statement on Thursday. “While my administration and the Attorney General’s Office have had many conversations about the law, KDHE and KDOR disagree about its impacts on their operations and will instead keep in place their policies regarding gender markers on birth certificates and driver’s licenses.”

Kobach then sent a statement that concluded, “We will see you in court.”

Until that happens, experts tell KCTV5, Kelly’s directive stands.

“Typically, a governor’s directive would supersede an attorney general’s advisory opinion. That depends on the governor being right, however,” said UMKC Political Science Professor Greg Vonnahme. “[Members of the executive branch] can’t rewrite the law. They can’t change the law. They can’t contradict the law.”

That’s what Kobach claims Kelly is doing.

“She is violating her oath of office to uphold Kansas law,” he claimed.

But UMKC law school professor Steve Leben said the Kelly Administration’s interpretation is sound.

“I’d say in large part Governor Kelly’s right on this,” Leben said.

Before teaching at UMKC’s School of Law, Leben was a Kansas appellate court judge for 13 years. He read the legislation, Kobach’s legal opinion and Kelly’s memo.

“One of the courses I teach as a course on interpreting statutes, and most courts today say let’s start with the words and we mostly end with the words,” he remarked.

He broke down several portions of Kobach’s legal opinion.

“The laws should not be considered retroactive. The law itself says it’s effective July 1 takes effect and it’s enforced from that date,” he said.

On the topic of birth certificates, he noted that no legislation can contradict a 2019 federal court ruling that people can amend their sex on those documents.

“There’s a federal court ruling in place that can’t be changed unless the court, the federal court, changes it,” Leben said.

Kobach has already filed a motion in federal court seeking that change.

On the topic of driver’s licenses, Leben said, the wording of the law will likely make it hard to apply there.

“The statute defined the word sex, but the statute already in place with respect to driver’s licenses says they list a person’s gender. And there’s pretty good argument that those two terms don’t mean the same thing today.”

Kobach’s opinion specifically claimed that the two are interchangeable.

“That’s not an absurd argument. It’s one that certainly can be argued in court,” Leben said. “But ultimately the decision on that will be made in a courtroom, not in news releases from either the attorney general or the governor.”