Judge Grants Kansas AG's Request to Modify Consent Judgment Requiring Nondiscriminatory Transgender Birth Certificate Policy

A federal judge granted AG Kobach's request to modify a consent judgment secured by Lambda Legal in 2019 that allowed transgender people to correct the gender markers on their birth certificates.

(Kansas City, Kansas - August 31, 2023) Today a federal judge granted a request from Kansas Attorney General Kris Kobach to vacate parts of a consent judgment entered by the court in 2019, at the request of the parties in Foster v. Andersen.

In Foster v. Andersen, Lambda Legal, along with the law firm Bryan Cave Leighton Paisner LLP, represented four transgender people born in Kansas who were unable to obtain accurate birth certificates, consistent with their gender identity, because of Kansas's then-discriminatory birth certificate policy, and a Kansas-based organization. The consent judgment secured the right of transgender people born in Kansas to correct their birth certificates to accurately reflect who they are.

The lead lawyer of the case, Omar Gonzalez-Pagan, Counsel and Health Care Strategist at Lambda Legal, responded: "We are disappointed that the court has saw fit to reopen the consent judgment, which has been in place for four years and operated without incident. Let us be clear, however, today's decision does not approve of SB180, as interpreted by the Kansas Attorney General, but simply holds that the circumstances have changed. Indeed, the court went to great lengths to specify that it was not opining on SB 180's constitutionality.

"The interpretation of SB180 advocated by Kris Kobach and his ilk is as unlawful as the policies we first challenged in our lawsuit in 2018. Access to accurate identity documents is vital; without accurate identity documents, transgender people face even greater threats of discrimination, harassment, and even violence. We will evaluate next steps to determine how best to continue to secure the right of transgender Kansans to have identity documents consistent with who they are."

Background

On June, Kansas Attorney General, Kris Kobach, filed a motion in the U.S. District Court for the District of Kansas seeking to nullify the 2019 consent judgment that resulted from Lambda Legal's 2018 challenge to Kansas's then-discriminatory birth certificate policy, Foster v. Andersen.

Kobach alleged that the consent judgment conflicts with Kansas Senate Bill 180, the recently enacted law, which requires state agencies that collect vital statistics to identify within their records each individual who is part of the collected data set by the sex assigned at birth. Kansas Gov. Laura Kelly vetoed SB180 in April, but her veto was overridden by the Kansas legislature a few weeks later.

In response, Lambda Legal stated then that "SB 180, while misguided and discriminatory, does not conflict with the Consent Judgment approved by the Court in 2019. And even if it did, SB 180 does not present a sufficient basis for the State of Kansas to escape its obligations under a federal judgment. We have a supremacy clause for a reason."

Foster v. Andersen was filed by Lambda Legal in October 2018 in the U.S. District Court for the District of Kansas on behalf of four transgender individuals born in Kansas - Nyla Foster, Luc Bensimon, Jessica Hicklin and a transgender man identified by his initials, C.K. - as well as the Kansas Statewide Transgender Education Project, Inc. (K-STEP), as an organizational plaintiff. K-STEP was founded by transgender Kansas advocate Stephanie Mott, who spearheaded the group until her death in March 2019.

Under the consent judgment entered by the U.S. District Court for the District of Kansas, the court ordered the Secretary for the Kansas Department of Health and Environment and other Kansas government officials to provide accurate birth certificates that reflect their true sex, consistent with their gender identity, and agrees that the policy prohibiting gender marker corrections to birth certificates violated the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment.

Read about the lawsuit Foster v. Andersen: https://lambdalegal.org/case/foster-v-andersen/

Read more about the plaintiffs here: https://legacy.lambdalegal.org/in-court/cases/foster-v-andersen

Read the decision here: https://lambdalegal.org/legal_document/foster_ks_20230831_memorandum-and-order/

Find the digital version of the press release here: https://lambdalegal.org/newsroom/foster_ks_20230831_judge-grants-ag-request-to-modify-consent-judgment/

Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and everyone living with HIV through impact litigation, education and policy work. www.lambdalegal.org