Kansas Bans Driving While Trans
As of today, transgender Kansans whose driver's licenses denote their gender identity rather than their sex assigned at birth (as was previously permitted under Kansas law) commit the offense of driving without a valid license thanks to a new state law enacted by overriding the governor's veto. Here is the critical language:
(1) Any driver's license issued prior to July 1, 2026, that identifies the gender of the individual named on such license in a manner that is contrary to the definition of such term as defined in K.S.A. 2025 Supp. 77-207, and amendments thereto, shall be invalid. (2) The director shall correct any driver's license records that identify the gender of the individual named in such record [except via sex assigned at birth]. The director shall send written notice to each such individual notifying such individual that such license is invalid and to surrender such license to the division of vehicles. Upon the surrender of any such license, the director shall issue a new driver's license to such individual with the correct gender identification for such individual.
In addition to the animus reflected in the law's substantive provisions (about which more in a moment), the rollout has been procedurally unfair. As reported by one Kansan, transgender Kansans began receiving their written notices only yesterday. They were informed (correctly) that the law has no grace period. Thus, many people who came home after work yesterday (after their closest DMV office had closed) and opened their mail to discover that their licenses would be invalid beginning today have no lawful means of complying with the law other than taking public transportation (which is not available in all Kansas counties) or bumming a ride to the DMV, standing in line, subjecting themselves to the humiliation of denying their identity, waiting for a new license that misgenders them, finding a way to get to work or back home to their cars, and, depending on how long that whole process takes, either reporting late for work or missing the day entirely.
That's just the procedural unfairness, however. As a matter of substance, the new law is an exercise in spite. It applies to birth certificates as well as driver's licenses. It includes provisions forbidding the use of sex-segregated restrooms by persons whose sex assigned at birth does not match the sex designated for the restroom. It defines not only "sex" but "gender" as sex assigned at birth--although, of course, it doesn't use the phrase "sex assigned at birth," which would be way too woke for the Republican-dominated Kansas legislature. It authorizes sex segregation in restrooms, athletics, locker rooms, and other contexts pursuant only to those definitions. And it provides for both official enforcement by the Attorney General and private bounties of $1,000 for any person who is "aggrieved" by seeing a trans person using a public restroom designated for their gender identity but not their sex assigned at birth.
Is the new law constitutional? It contains a severability clause, so parts of it probably will be deemed valid. After all, last month's oral arguments in West Virginia v. B.P.J. and Little v. Hecox indicate that the Supreme Court is likely to uphold state laws barring transgender female athletes from participating in girls' and women's sports--so the portion of the Kansas law that does the same will almost certainly be upheld.
However, I want to suggest that the law as a whole should be deemed invalid as the product of animus aimed at transgender individuals.
As I acknowledged in my post-oral-argument essay on this blog last month, it is possible that bans on transgender female athletes in girls' and women's sports could satisfy intermediate scrutiny. I didn't go into the details there, but the argument would be that going through male puberty or even having a Y chromosome confers on-average advantages that are too difficult to sort out on a case-by-case basis, thus possibly justifying a blanket ban. Unfortunately, the Supreme Court seems unlikely to require intermediate scrutiny of the trans athlete bans because it seems unlikely to apply the Title VII logic of Bostock v. Clayton County--under which transgender status discrimination is sex discrimination--in the equal protection context and also seems unlikely to hold that transgender status itself is a suspect or semi-suspect classification.
But by whatever means one uses to reach the conclusion that a ban on transgender female athletes in girls' and women's sports is constitutionally permissible, the new Kansas law should be regarded as invalid in toto. Why? Because the driver's license provision reveals that the whole enterprise is driven by impermissible animus against trans Kansans. Even absent a suspect or semi-suspect classification, animus-driven laws are unconstitutional. As the Supreme Court put it in the leading animus case, "if the constitutional conception of 'equal protection of the laws' means anything, it must, at the very least, mean that a bare [legislative] desire to harm a politically unpopular group cannot constitute a legitimate governmental interest" (emphasis in original).
The Kansas legislature's failure to afford any grace period for compliance with the driver's license provision was not an oversight. The last substantive sentence of the law expressly states that it takes effect on "publication in the Kansas Register," which follows so soon after passage as not to afford time for transgender Kansans who want to comply to get themselves to the DMV except by overcoming the obstacles described above.
And that's not to mention the fact that the substance of the driver's license provision is perverse. For example, a driver's license that identifies as "female" a transgender man who presents as a man will lead to confusion about whether the license actually belongs to him. Given that driver's licenses include pictures of their holders, there is no genuine need for a sex or gender identifier at all. As applied to cisgender drivers, the identifier is largely harmless, but as applied to transgender drivers, the Kansas law undermines identification and gratuitously stigmatizes them by denying their identity. Like the lack of a grace period, the provision itself is driven by animus.
Romer v. Evans provides some support for my suggestion that the whole Kansas law should be invalidated due to the animus manifested by some of its provisions. There, the state and the dissent pointed to specific applications of Colorado's Amendment 2--forbidding laws and ordinances treating anti-gay discrimination--that could serve legitimate government interests, but the majority nonetheless invalidated the provision in toto.
To be sure, Amendment 2 was found to be animus-driven because of the mismatch between the law as a whole and any potential valid applications, whereas my analysis above finds animus based on particular provisions, but that fact need not be dispositive. In a related context, the Court puts the burden on the government to show that the impermissible motive of one or more members of a multi-member decision making body did not taint the whole body's decision. I'm suggesting that, likewise here, where some of a law disadvantaging trans Kansans is obviously driven by animus, it ought to be up to the state to show that the rest of the law isn't.
Finally, I offer the foregoing analysis because I think it makes sense, not because I have any confidence that our courts will recognize that half the country is in the grip of an anti-trans panic that explains both the spiteful and cruel enactments and perhaps a few others that, in very different circumstances, might be at least debatable on policy grounds.