Kansas judge refuses to block law voiding transgender residents’ drivers’ licenses & policing bathrooms

Douglas County District Judge James McCabria declined Tuesday to pause enforcement of a new state law that invalidated driver’s licenses and criminalizes bathroom use for transgender residents, saying he doesn’t have enough information yet and that he believes Kansans are tolerant.

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In a six-page ruling — which includes a section titled “Who to believe?” — McCabria said attorneys for the American Civil Liberties Union and Attorney General Kris Kobach provided no examples to support their claims that the law will harm transgender people or that the law makes bathrooms more secure.

“In hearing the arguments of each side, the Court is struck by a basic assumption each side makes about the other — that our ‘lesser angels’ drive our choices,” McCabria wrote. “Yet, the very paucity of actual examples that either side has put forward in any of the arguments suggests the opposite — that the vast majority of Kansans are tolerant, understanding, accepting and generally supportive of each other and that the vast majority of transgender persons have experienced this as Kansans.”

Related: Kansas immediately revokes transgender residents’ driver’s licenses

Related: Two transgender men sue Kansas government over law voiding driver's licenses

Two transgender men from Lawrence filed a lawsuit Feb. 26, the day the law took effect, arguing it violates their constitutional rights to due process, privacy, equality and expression. They also argue the law violates a constitutional requirement that bills passed by the Legislature contain only one subject.

Attorneys with the ACLU and the Philadelphia-based Ballard Spahr law firm represent the plaintiffs, who are identified by the pseudonyms Daniel Doe and Mathew Moe. They asked the court to issue a temporary restraining order, which would have paused enforcement of the law for 14 days, with a possible 14-day extension.

McCabria wrote in his decision that the request for a temporary restraining order requires plaintiffs to pass multiple legal tests: they must demonstrate a likelihood of winning the case, show that the law would cause immediate and irreparable harm, and show that a restraining order serves the public interest and that no other remedy is available.

“The conclusion became self-evident — this Court simply does not have the information the law requires to enter a Temporary Restraining Order at this stage of the proceedings,” he wrote.

Plaintiffs can continue to present evidence and arguments in support of an injunction that would block enforcement of the law while the case is being litigated. McCabria scheduled a case management conference for March 18.

“This is a devastating, but hopefully temporary, setback for our clients and transgender people across the state of Kansas,” said Harper Seldin, a senior staff attorney for the ACLU. “The harm of this law has already had sweeping impacts on the lives of transgender people like our clients, threatening their ability to hold a job, go to school, or go about their daily lives.”

The GOP-led Kansas Legislature this year fast-tracked Senate Bill 244, limiting public input and debate at every step. The Legislature overrode Gov. Laura Kelly’s veto of the bill on Feb. 18, and the law took effect as soon as paperwork could be finalized.

Under the law, individuals in public buildings must use bathrooms and other private spaces, such as locker rooms, that align with their sex assigned at birth, rather than their gender. It isn’t clear how governments, schools, universities, libraries, and other entities are supposed to ensure proper bathroom use, but failure to do so will result in a $25,000 fine on first offense and $125,000 fines on subsequent offenses.

Related: Kansas governor passes law requiring ID to view acts of 'homosexuality' online, vetoes anti-LGBTQ+ bill

Individuals who use the “wrong” bathroom will receive a warning on first offense, a $1,000 fine for breaking the law on subsequent offenses, and be charged with a Class B misdemeanor crime on third and subsequent violations. They are also subject to civil lawsuits from anyone “aggrieved” by their bathroom choice.

Proponents said the law will make it safer for cisgender women to use the bathroom, even though there is no evidence to support the claim. They ignore the reality that the law now requires transgender men, who look and sound like men, to use the women’s bathroom.

In his ruling, McCabria said he rejected the assumption “that every restroom visit is fraught with the potential for violence or embarrassment if this law is not immediately suspended. Or, especially, to assume the Legislature intended to promote such negative experiences when the law was passed.”

The law also requires that gender markers on driver’s licenses and birth certificates match an individual’s sex assigned at birth.

Shortly before the law took effect, the Kansas Department of Revenue sent letters to 275 residents who had changed their gender markers to let them know their driver’s licenses had been invalidated.

Kobach said during a court hearing Friday that 138 of the 275 individuals who were affected by the law had already gotten a new driver’s license.

“You can’t take it seriously, the impossibility of complying, when so many already have,” Kobach said.

Trans Liberty, a national advocacy group, announced Monday it was launching Operation Lifeboat to serve transgender Kansans who need support. The organization previously issued a statewide evacuation warning for transgender people.

Operation Lifeboat provides an online portal for trans people to request help with transportation, packing, hauling, and getting settled somewhere else, breaking leases, emergency financial aid, legal guidance, DMV escorts, and other assistance. Allies can offer to help as drivers, hosts, movers and donors.

“Our goal is to meet this moment with both urgency and compassion,” said Brandon Callahan, an incident commander for the operation. “This operation is built to provide real support to people who need it while coordinating the many individuals and organizations stepping forward to help.”

Kansas Reflector is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: info@kansasreflector.com.