TOPEKA, Kan. — Kansas is pursuing regulations that would give it one of the nation’s toughest policies against allowing transgender people to update their birth certificates, prompting anger from advocates and threats of a lawsuit.
State health department officials contend an existing agency regulation allowing amended birth certificates conflicts with state law and needs to be eliminated. The agency has been pursuing changes for months and could impose them within six weeks.
The department’s revised rules would allow a change only if a person or his or her parents could document that the gender was incorrectly recorded at the time of birth.
Three transgender rights advocates called on the department to abandon its proposed changes during a hearing Thursday. The National Center for Transgender Equality says only Idaho and Tennessee have legal policies against changing gender listings on birth certificates, though Ohio also is not allowing it.
“It really stands against where most of the country is on updating identity documents to accurately reflect who people are,” said Arli Christian, the center’s state policy counsel.
But Republican Kansas state Sen. Mary Pilcher-Cook said a birth certificate is “a record for future generations” and shouldn’t be changed lightly. She said the document should reflect the “science” behind a person’s gender and not “political purposes.”
“Men and women are biologically different,” she said. “I don’t think we should become detached from reality.”
Conservative Republican Gov. Sam Brownback’s administration is pursuing the change amid scrutiny of a new law in North Carolina requiring transgender people to use public bathrooms, showers and changing rooms that correspond to the sex on their birth certificate. The U.S. Justice Department and the state’s governor sued each other this week.
Brownback was a strong supporter of the state’s now-invalidated ban on same-sex marriage. Also, in February 2015, he rescinded a Democratic predecessor’s executive order banning anti-LGBT discrimination in hiring and employment in much of state government.
Health department officials contend the issue about birth certificates has arisen because of a 2002 state Supreme Court decision.
The court ruled on the legality of a transgender woman’s 1998 marriage to a man in Leavenworth County, in a dispute over the man’s estate after his death. The court said the marriage wasn’t legal under the state’s same-sex marriage ban because she’d been born male and remained male “for the purposes of marriage.”
The state has interpreted that ruling to mean a person can’t legally change their gender at birth and therefore can’t revise their birth certificate, absent an absent an actual mistake.
Brownback spokeswoman Eileen Hawley said state law allows only minor changes in birth certificates and, “changing the sex designation is not a minor change.”
The health department’s proposed changes would eliminate a regulation allowing transgender people to update the gender listed on their birth records by providing “a medical certificate” documenting “a physiological or anatomical change.”
Former state Rep. Steve Brunk, executive director of the Family Policy Alliance of Kansas, said the health department is “exactly right” to bring its regulations in line with state law.
Christian, with the National Center for Transgender Equality, said Kansas has not appeared to be following the existing regulation because of the 2002 court decision. In February, Stephanie Mott, a transgender Topeka woman, filed a state-court lawsuit against the department for not changing her birth certificate.
Pedro Irigonegaray, a Topeka attorney representing Mott in her lawsuit, said the health department’s proposal reflects only the Brownback administration’s “bigotry.”
“If this is passed, there will be litigation challenging its constitutionality,” he said after the hearing.
Mott predicted during Thursday’s hearing that the regulatory changes will cause more transgender youth to attempt suicide because the state will be rejecting their identities and preventing them from having authentic lives.
And Micah Kubic, executive director of the American Civil Liberties Union of Kansas, said that with the changes, “There is nothing — nothing — that transgender individuals can do short of time travel to ever update or correct the gender markers on their birth certificate.”
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