A new regulation by the Kansas Health Department will effectively make it impossible for transgender individuals to change the gender on their birth certificates.
Changes to KS Birth Certificate policy here -Will make it essentially impossible for Transgender people to amend 1/2 pic.twitter.com/4lCTTFhpJ9
— Brian Abel (@BrianAbelTV) May 19, 2016
Previously, if a person underwent a physiological or anatomical change, they could amend their birth certificate to reflect that change after presenting proof to a court.
The transgender community's right to amend their birth certificates has come under increasing scrutiny in the wake of a North Carolina law that says people in the state must use the bathroom that coincides with the gender on their birth certificate.
“Kansas is trying to take it one step further in trying to stop people from amending their birth certificate so that they can effectively discriminate,” said Madeline Johnson, a transgender woman and partner at the Kansas City-based law firm Edelmen, Liesen & Myers.
“My belief is that such a law would be unconstitutional," she said. "I think this is going to come up through the court system and eventually to the Supreme Court within the next few years; we’re going to see it."
In a statement, Kansas Health Department spokesperson Carrie Sparks said, “The existing regulation is not in compliance with Kansas law. With these changes, the regulation will be brought into compliance.”
Kansas officials are using a 2002 state Supreme Court decision as the base of their position. AP reporter John Hanna reports:
“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 actual mistake.”
“What it is, is thinly veiled religious bigotry,” said Johnson.
Will the same-sex marriage ruling apply to transgender rights?
Johnson said the Supreme Court’s Obergefell vs. Hodges decision would likely play a role in the Kansas case if it were to reach the highest court.
“[Justice Kennedy’s opinion] opens right up with wonderful language talking about the person's right to identity and to identify themselves and to define who they are for themselves, and I think that language that he used in writing the Obergefell opinion will lend itself tremendously to the transgender issue and the issue of identity in the birth certificates and bathroom access issues,” she said.
Brian Abel can be reached at email@example.com.