Q&A: KSHB 41’s Abby Dodge interviews Kansas AG Kris Kobach about gender identity law

KANSAS CITY, Mo. — KSHB 41’s reporter Abby Dodge interviews Kansas Attorney General Kris Kobach following an opinion he gave on Senate Bill 180, a law that goes into effect July 1 and rescinds the rights of transgender people to legally identify as their gender identity.

This script was lightly edited to reflect correct grammar.

Dodge: You issued an opinion about Senate Bill 180 earlier this week. There are a lot of bills that come through the state of Kansas, but why did you feel it was important to issue an opinion on this bill specifically?

Kobach: Well, this particular bill was the subject of a request from a legislator asking for an opinion. In addition to the request, we also had the broader public interest in this, from much discussion in the media, prior questions from reporters, and it’s the subject of a great deal of public attention.

And then there’s the impending July 1 effective date. The agencies that are affected by this bill needed to know exactly what impact it would have. For all of those reasons, my office issued an attorney general opinion, and did so this week.

Dodge: I’ve heard from some advocates that say the bill itself is a bit unclear. Do you feel that the idea of reverting back to be the sex issued at birth is clear in the bill, or is that something that you clarified with your opinion Monday?

Kobach: I think the bill, in the respects that I described in the attorney general opinion, it’s clear in those respects. The bill is very clear that the state databases, whether it be the driver’s license database or the birth certificate database, that those have to reflect a person’s sex at birth, a person’s biological sex. In those respects, it’s crystal clear.

There are other parts of the bill that are perhaps less obvious as to what they do, but the parts that we opined on this week are quite clear.

Dodge: What do you feel those parts of the bill that still have a bit of muddy waters are, and how do you address that?

Kobach: Well, there’s a section of the bill that talks about how various state agencies, schools, that they — with respect to bathroom policies — have the right to ensure that people of only one biological sex or the other biological sex use those facilities or locker room facilities. We have not been asked to issue a formal opinion on that. The language in that part of the bill is not mandatory, in the sense that the part that we did opine on is mandatory, the state shall do this. That (language) is more permissive, and it gives the schools the authority to move ahead and ensure that the bathrooms are delineated by biological sex. So that part of the bill is just a little bit less mandatory than the sections we opined on.

If a legislator asks us to opine on the remaining sections of the bill, we would. It wouldn’t be just me talking, it would be the team of attorneys here at the Attorney General’s Office looking specifically at whatever question is asked.

Dodge: What does enforcement look like as far as this bill goes, when we’re talking about schools, city and state departments, if they do not revert back to the changes that they’ve made under this 2019 agreement? What is at stake here, if they don’t agree to do so?

Kobach: The language of the new law is mandatory and so these agencies must comply with the law. If for some reason they do not comply with the law, or if the governor’s administration determined that they were not going to comply with the law, then my office, the office of the Attorney General, would take action to ensure that our laws are followed in Kansas.

Dodge: So as I’m understanding, the way that you’re saying, if a school, city, (or) state department decides not to follow this bill, that it would be on you to make them comply to do so?

Kobach: Yes, if an agency said, you know, ‘we’re gonna ignore the law, we don’t like the law,’ then it would fall to the Attorney General’s Office to seek judicial action, to take that agency to court or, again, just speculating how that might lay out. But absolutely, if the governor’s administration decides it doesn’t want to comply with the law, then we would see them in court.

Dodge: And do you plan to do so?

Kobach: Well, I again, they haven’t stated what they intend to do. So, the governor’s office and these agencies have until July 1 to begin their compliance, so the ball is in their court.

Dodge: Right. My last question here is what message does this bill send to transgender Kansans throughout the state?

Kobach: Well, transgender people can live their lives as they see fit, they can present themselves as they wish, they can change their names and change their appearance and do any of the things that they want to do. The bill simply is a directive to the state agencies, and it says that these documents will reflect the truth of a person’s biological sex at birth. If you think about a birth certificate, it’s a certificate of what happened on the day that a child was born; a child of this sex, of this weight was born to this mother at this place.
It’s not a document that should be modified in the legislature’s wisdom, it’s simply stating what happens.

Similarly, a driver’s license is a state created document for state purposes, and it’s not a canvas which one can paint their aspirations and expressions. It serves a purpose to the state, and the fact is these documents reflect biological reality does not mean that a person can’t live their life the way they see fit.

I think there’s been some exaggeration, by people who oppose this law, that somehow one’s birth certificate reflecting one’s sex at birth somehow infringes on their ability to be who they want to be, and I just don’t find that argument convincing.

Dodge: When we’re talking about driver’s licenses, we all grow and move throughout life and changes happen as we grow older, there is a renewal process with driver’s licenses, where addresses and names can change if you get married. Why is it important a state document to not have that gender or sex change in the eyes of the state? I know you’ve referenced a lot of data keeping as a part of your opinion.

Kobach: Well, there are a number of reasons. An important reason is that the driver’s license is based upon the birth certificate. In many cases, when a person gets his or her first driver’s license, they present a birth certificate. So, having consistency so that the birth certificate reflects biological sex, and the driver’s license reflects biological sex is important for that reason.

It’s certainly true that as people grow older, or as they transition, they can change their appearance. Their weight may change, and certainly that the appearance and things in their address may change as well. And the driver’s license is designed to accommodate those changes and allow the officer standing beside the vehicle to assess is this the person in front of me?

Similarly, with respect to SB 180, our office concluded that the state’s dataset has to reflect biological sex at birth. It does not require the individual who got a driver’s license in the last few years with a sex change on that license, it doesn’t require them to surrender that license. It just means that when it expires, and it comes time to get a new license, that new license will reflect biological sex at birth. That’s the state’s decision that it wishes to have consistency and accuracy in those documents.

Dodge: Just to clarify on the part of the birth certificate, since that is not a document that tends to change, although some people have changed it based on that 2019 agreement, what’s the process of that rollback to gender assigned at birth? Is that on part of the state, or does the person who made that change have to act to retroactively change it again despite previously going through that process?

Kobach: Now, the SB 180 directive is directed at the state, so the state has to change its data in cases where it was modified back to the biological sex at birth. The individual doesn’t have to do anything, they don’t have to surrender the paper copy of the data in the form of a birth certificate that was issued in the last couple of years, but the state must maintain the data reflecting the truth about the baby’s sex at birth.

Dodge: Is this conversation about data, or is it about something more than that?

Kobach: That’s a good question. The statute is about data. The statute says that the agencies that maintain this information have to maintain information corresponding to biological sex at birth. But of course, the larger discussion around this bill has been with respect to the trans movement, and what effect this bill has on that movement.

But, the bill itself is pretty narrow, focused and clear that when the state collects this data, the state needs to make sure that sex refers to biological sex at birth. It’s interesting that we’re even having this discussion, because I think if anyone had said five years ago, we’re going to be discussing whether birth certificates can have a a sex modification in the birth certificate, most people would have thought that that’s very unlikely and how would that ever happen? But, here we are, and that’s why I think SB 180 was passed by the legislature to react to these current trends.
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