Kansas AG Kris Kobach uses transgender people’s social media posts to defend forcibly outing them

In court this week to challenge the state’s driver’s license and restroom restrictions, intersex and transgender Kansans are having to explain some of their social media posts as the state’s defense turns to them as part of its strategy.

As The Advocate has reported, plaintiffs in Doe v. Kansas are seeking to block Senate Bill 244, a sweeping law that invalidated driver’s licenses bearing gender markers that differ from a person’s sex assigned at birth and restricts restroom use in government buildings. The ID requirement has exposed them to scrutiny in ordinary interactions, even after they complied with the law, plaintiffs told The Washington Post.

Related: Kansas voided 1,700 licenses. Now its anti-trans law is being tested in court

The ACLU of Kansas is backing the lawsuit.

Republican Attorney General Kris Kobach, who has a history of supporting anti-LGBTQ+ views and legislation, argues that the plaintiffs have not shown the law harmed them. To challenge their claims that the law could effectively out them as transgender or intersex, state attorneys have turned to the plaintiffs’ own social media posts, some of them years old, arguing that public disclosures undermine their expectation of privacy.

The Topeka Capital-Journal reports Kobach cross-examined one of the plaintiffs challenging the law – Dakota West, an intersex woman who previously lived in Reno County and is now a resident in Tennessee – about a Facebook post where West spoke about being intersex.

“Why would you post something that’s had 2 million views?” Kobach said, questioning her concern about being outed while having a public figure profile. West said she considered the post a “situational difference” from encountering someone in real life. “I’ve never seen anyone in person that’s followed me,” she said. “Sometimes, I think of it as numbers on a page.”

West, who was born with XY chromosomes but whose body does not respond to male hormones, had held a driver’s license identifying her as female for just five months when the state told her in February that it was invalid. She never went through male puberty.

Related: Kansas anti-trans law forced her license to say male. Then a cop questioned it and she was charged

Daniel Doe, another plaintiff in the case, testified that his social media posts are now archived, emphasizing the distinction between choosing to disclose his identity and being compelled to do so. “I made all of these posts on my own terms,” they said. “I can’t necessarily control when I have to produce my identification.”

State attorneys, however, pointed to the reach of some of Doe’s posts, including their view counts, and questioned how widely screenshots may have circulated or how many people may have seen them.

In an interview with The Capital-Journal, Harper Seldin, staff attorney for the ACLU, said the posts were not relevant to the ongoing case.

“I think the only relevance here is that the state is trying to use that to create pressure on anonymous Kansans who have been brave enough to show up in person and in court to tell their stories,” he said. “There’s no reason for this.”

Kobach disagreed, giving reporters a look into the state’s strategy.

"The way they define their right is the right not to disclose to anyone the fact that they are trans. But when one has published thousands of times on social media that one is trans, that undermines one’s claim that you have a constitutional right to privacy to keep that information private,” Kobach said. “If you are proclaiming something to the world, that indicates you don’t have an expectation of privacy on what you just proclaimed.”

Related: Kansas AG says schools must out trans kids to their parents — even without a law requiring it

While three of the five plaintiffs are under pseudonyms and the court agreed to keep their names private, the state is seeking to reveal their faces.

“Our plaintiffs’ primary harm in this case is being forcibly outed against their will,” Seldin told the Capital-Journal. “This is again a continuation of the state’s campaign to intimidate transgender Kansans who are trying to advocate for their freedoms without incurring the very harms that taking away those freedoms causes them."

Kansas legislators passed Senate Bill 244 along party lines in January, and it remained in place after Republicans overrode Democratic Gov. Laura Kelly’s veto in February. State officials said roughly 1,700 intersex and transgender Kansans received notices that their licenses were invalid.

The law has also produced confusion for lawmakers and during traffic stops. Kris Ripper, a transgender woman who obtained a license listing her as male to comply with the law, said an officer questioned whether the ID was real. Law enforcement later dismissed a charge of driving without a valid license. In a separate case, a judge temporarily restored transgender driver Jamie Miller’s driving privileges, finding that the state likely denied her due process when it invalidated her license.