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Lawsuit challenges Kansas birth certificate policy for transgender people

Posted at 1:05 PM, Oct 15, 2018
and last updated 2018-10-15 18:58:19-04

KANSAS CITY, Kan. — National LGBTQ organization Lambda Legal filed a lawsuit Monday to challenge a Kansas policy that prohibits transgender people from changing their birth certificates.

The suit was filed on behalf of four transgender people born in Kansas who have been able to change all of their forms of identification, except their birth certificates, to accurately reflect the gender with which they identify. 

Nyla Foster, who has identified as a woman for the past 16 years, is one of the plaintiffs. Foster said having a birth certificate with the wrong gender has led to issues with education and healthcare. In one instance, she was accused of committing identity theft.

"When your identification doesn't line up and match up, you're kind of looked at as suspicious," Foster said.

According to the lawsuit, no specific statue prohibits the Kansas Department of Health and Environment Office of Vital Statistics from making the change, but the defendants “enforce a policy, custom or practice that categorically prohibits transgender persons born in Kansas from correcting the sex listed on their birth certificates.”

Omar Gonzales-Pagan, a senior attorney for Lambda Legal, emphasized just how much hinges on having an accurate birth certificate. 

"It can determine access to education, employment, healthcare, banking, travel, obtaining other identity documents and even voting. It must reflect a person's identity," he said. 

The KDHE website states that "if your sex was listed incorrectly at the time of your birth," a person can provide the office with a notarized statement requesting the sex or gender be corrected.

However, KDHE Deputy Secretary of Public Affairs Theresa Freed clarified the department does not have the authority to change a certificate for gender identity. 

In a statement to 41 Action News, Freed wrote:

“This issue has been previously litigated in a Kansas court. The court in that case determined that the amendment of a birth certificate regarding gender is not required. We would not be able to speak to the allegations of this particular lawsuit, as we have not yet been served.”

Kansas, Tennessee and Ohio are the only three states that do not allow transgender people to amend their birth certificates, according to Lambda Legal. The organization is also currently pursuing a case in Ohio. 

The law firm of Bryan Cave Leighton Paisner is also working on the case in Kansas.