Kansas is one of only three states that will not allow transgender people to change their birth certificates under any circumstances. Not with a doctor’s letter. Not with proof of sex reassignment surgery. Never.
But a new lawsuit from the LGBT advocacy group Lambda Legal is challenging that prohibition on behalf of four transgender people—two men, two women, all born in Kansas—who say that the inability to change the gender listed on their birth certificates causes them harm and violates their right to equal protection under the law.
“Denying transgender people birth certificates that accurately reflect their sex, consistent with their gender identity, reveals private information in contexts where this information would otherwise remain undisclosed,” the complaint reads.
Simply put: inaccurate birth certificates out transgender people—and in a world where anti-transgender discrimination remains common, that can have consequences.
Nyla Foster, a transgender woman and one of the plaintiffs in the case, “has been required to present her birth certificate during job application processes,” according to the complaint. Luc Bensimon, a transgender man, claims that anyone who “see[s] his birth certificate” discovers he’s transgender “regardless of whether he wishes to share that information with them.”
“By not allowing transgender people like me to correct our birth certificates, the state complicates every aspect of our lives,” Bensimon said in a press release.
Jessica Hicklin, a transgender woman currently incarcerated in Missouri and the third plaintiff in the case, claims that her male birth certificate is in part responsible for the fact that corrections officials “still refer to [her] with male pronouns” even though she has been medically transitioning for the better part of a year.
And C.K., the final plaintiff in the case, says that he experienced “a paralyzing silence from human resources staff” at his current job in Oklahoma due to the fact that his Kansas birth certificate falsely states that he’s a woman.
The lawsuit, filed on Monday in the United States District Court for Kansas, targets the Kansas Department of Health and Environment, the agency tasked with managing the state’s vital records.
The Daily Beast asked the KDHE if the agency had any response to the lawsuit, to which KDHE Deputy Secretary of Public Affairs Theresa Freed responded: “The issue has been previously litigated in a Kansas court. The [KDHE] does not 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.”
However, the KDHE does change birth certificates for cisgender, or non-transgender people, who had their gender incorrectly listed—a fact that Lambda Legal highlights in the lawsuit. The Daily Beast also asked the KDHE about this discrepancy.
“Clerical errors can be corrected with an amendment noting the reason for the correction,” Freed replied.
That disconnect between cisgender people being able to have their correct gender listed on their birth certificates and transgender people being unable to do so lies at the heart of the plaintiffs’ equal protection claims. That policy, Lambda Legal concludes in the complaint, can only be explained in one way: “The Birth Certificate Policy is maintained and motivated by animus towards transgender people.”
Kansas’ birth certificate policy for transgender people is unusually strict. Tennessee and Ohio are the only other two states that categorically bar birth certificate changes in the event of a gender transition.
Slightly more jurisdictions—18 states and D.C.—allow the change without proof of surgery. And some states have “unclear” policies but seem to allow gender marker changes in some circumstances.
Complicating matters further is the fact that Kansas currently allows transgender people to change the gender markers on their driver’s licenses without undergoing surgery.
Both Tennessee and Ohio—the other two states that categorically deny accurate birth certificates to transgender people—also allow for gender marker changes on driver’s licenses, although Tennessee does require sex reassignment surgery in that case.
On a federal level, too, a transgender person born in Kansas would be able to change their passports and Social Security information without surgery.
“Such practice is consistent with mainstream medical organizations, which support the correction of the gender marker in transgender people’s identity documents, and oppose any requirement of specific medical care, including surgeries, in order for transgender people to make such corrections,” the lawsuit notes.
But when it comes to birth certificates, transgender Kansans are out of luck.
“By denying people the ability to correct their gender marker on their birth certificates, Kansas is forcing transgender people in effect to lie about who they are and to navigate life with inaccurate identity documents,” said Lambda Legal senior attorney Omar Gonzalez-Pagan, in a press release.
Part of the task of the legal challenge will be to make clear that, for transgender people, obtaining an accurate birth certificate is not just a matter of crossing t’s and dotting i’s, but an essential part of life.
The complaint lays out all of the various contexts in which a person might be asked to present the record: “In the ordinary course of life, a birth certificate is often required for determining eligibility for employment, obtaining other identity documents (including driver’s licenses, state identification cards, social security cards, passports, and other state and federal identification documents, enrolling in school, proving age, or enrolling in governmental programs.”
The legal challenge against Kansas’ birth certificate policy comes on the heels of a similar lawsuit in Ohio. In April 2018, four transgender plaintiffs represented by the American Civil Liberties Union and Lambda Legal sued the Ohio Department of Health for the right to accurate birth certificates.
The Kansas birth certificate policy was also previously challenged by a transgender woman named Stephanie Mott, who unsuccessfully sued the KDHE in February 2016.
Three months after Mott filed her lawsuit, the Associated Press reported that Kansas was “pursuing regulations that would give it one of the nation’s toughest policies” on transgender birth certificates—a move that the state’s Republican administration was pushing for even as North Carolina’s “bathroom bill,” which restricted restroom use based on birth certificate, was eliciting national outrage.
“If this is passed, there will be litigation challenging its constitutionality,” Mott’s attorney predicted, as the Associated Press reported.
Two years later, that litigation is here.