by Dan Margolies, Kansas News Service
Four transgender residents of Kansas sued the state on Monday, challenging its refusal to allow them to change the sex listed on their birth certificates.
The lawsuit, filed in federal court in Kansas City, Kansas, argues that Kansas’ policy violates the due process and equal protection clauses of the Constitution. It also argues that it violates the plaintiffs’ free speech rights under the First Amendment.
“I’m here to seek justice,” said Nyla Foster, a transgender woman and one of the plaintiffs. “My birth certificate does not reflect the gender I identify as, and I’m here to correct it so I can move forward with my life.”
Kansas, Ohio and Tennessee are the only three states that don’t allow people to change their birth certificates to reflect gender identities that differ from genders assigned at birth.
Although Kansas law does provide for the correction of a person’s gender identity – driver’s licenses, for example, can be amended – the Kansas Division of Vital Statistics claims it does not have the authority to amend birth certificates to account for gender transition.
The suit names as defendants Jeff Anderson, secretary of the Kansas Department of Health and Environment; Elizabeth W. Saadi, the Kansas state registrar; and Kay Haug, director of the state’s vital statistics office, a unit of the Department of Health and Environment.
Theresa Freed, a spokeswoman for the department, said the issue has already been litigated in a Kansas court.
“The court in that case determined that the amendment of a birth certificate regarding gender is not required,” Freed said in an email. “We would not be able to speak to the allegations of this particular lawsuit, as we have not yet been served.”
Freed was referring to a ruling in a case brought by Topeka resident Stephanie Mott, who sued the state in 2016 so that she could list her gender as female on her birth certificate. A Shawnee County judge ruled against her.
Freed added that the department doesn’t have the authority to change an individual’s birth certificate, “with the exception of minor corrections or by court order.”
“Gender identity would not be considered a minor correction,” she said.
In addition to Foster, the plaintiffs suing state officials are Luc Bensimon; Jessica Hicklin; an individual identified only as C.K.; and the Kansas Statewide Transgender Education Project Inc., better known as K-STEP. They’re represented by Lambda Legal, a national organization that advocates for lesbian, gay, bisexual and transgender people, and the law firm of Bryan Cave Leighton Paisner.
At a press conference in front of the federal courthouse in Kansas City, Kansas, on Monday, Omar Gonzalez-Pagan, an attorney with Lambda Legal, explained why the organization was challenging the state’s policy.
“A birth certificate is more than a piece of paper,” he said. “It is the quintessential identity document that follows a person from birth till death.”
Gonzalez-Pagan said birth certificates can determine access to education, employment, healthcare, travel and the ability to obtain other identification documents.
“It must reflect a person’s identity,” he said.
Lambda Legal filed a similar lawsuit in Ohio earlier this year. That suit came just weeks after a federal judge, in another lawsuit brought by Lambda Legal, found that Idaho’s refusal to allow individuals to change the sex on their birth certificates violated the equal protection clause.
Foster said she was challenging Kansas’ policy “because it is the last document that doesn’t reflect who I truly am.”
“It creates different barriers for me as far as getting a job, applying for housing or health insurance,” she said.
Luc Bensimon, Foster’s fellow-plaintiff, said the state’s policy made it easier for people to discriminate against him, “on top of the discrimination I already confront based on my disability.”
Bensimon has a mild form of cerebral palsy.
“It’s frustrating,” he said. “For me, it’s not about the individuals here but about the generation coming up.”
In recent years, Kansas has been hostile to the idea of expanding legal protections to include LGBT individuals.
In August, Kansas joined 15 other states in asking the U.S. Supreme Court to rule that it’s legal to fire people for being transgender.
And in 2015, then-Gov. Sam Brownback rescinded an executive order by former Gov. Kathleen Sebelius offering legal protection against discrimination to LGBT employees of the state.
Pedro Irgonegaray, the attorney who represented Stephanie Mott two years ago in her unsuccessful effort to amend her birth certificate, described Kansas’ LGBT policies as “regressive, abusive, uneducated and misguided.”
“We need to be more enlightened in how we deal with transgender individuals,” he said. “Unfortunately, transgender individuals, females, in particular, are the subject of abuse, violence, for no other reason than that their gender identity is incongruent with their sexual organs. And until we evolve as a state to set aside superstitions about transgender individuals and recognize the science involved, I fear that these abuses are going to continue.”
Dan Margolies is a senior reporter and editor at KCUR. You can reach him on Twitter @DanMargolies. Kansas News Service stories and photos may be republished at no cost with proper attribution and a link back to kcur.org.
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