Republican legislators in Kansas have enacted a sweeping law that threatens transgender people in the state with an array of legal punishments for participating in public life while trans. House Substitute for Senate Bill 244 invalidates the driver’s licenses and birth certificates of trans people if the identity documents accurately reflect their gender identity, rather than their sex assigned at birth. SB 244 also bans trans people from using bathrooms that match their gender identity in public buildings, and empowers anyone to sue people they suspect of using the “wrong” bathroom.
Democratic Governor Laura Kelly vetoed SB 244 a few weeks ago, but the Republican supermajority overrode the veto. This caused the law to take immediate effect on February 26, and caused chaos for trans residents with a corresponding quickness. At least 380 Kansas drivers updated the gender marker on their licenses in the 15 years prior to SB 244. Driving with those lawfully-issued licenses now carries the risk of up to six months in jail, and up to $1,000 in fines. Using the bathroom consistent with their gender exposes trans people to similar civil and criminal penalties. And the bounty hunter provision creates a financial incentive for surveilling and harassing trans people.
The same day the law went into effect, two transgender Kansans sued exclusively on state constitutional grounds, alleging in the Douglas County District Court that SB 244 “violates the Kansas Constitution’s guarantees of personal autonomy, privacy, equality under the law, due process, and free expression.”
It’s not just the state Constitution: SB 244 violates the U.S. Constitution, too. The Fourteenth Amendment of the Constitution prohibits states from denying the “equal protection of the laws” to any person, and further bans states from depriving anyone of “life, liberty, or property, without due process of law.” The Kansas legislature flouted both clauses when it made residents’ eligibility for a driver’s license and their ability to pee in peace legally contingent on whether or not they’re transgender.
Kansas’s law also plainly conflicts with Supreme Court precedent: In the 1971 decision Bell v. Burson, the Court unanimously acknowledged that driver’s licenses can be “essential in the pursuit of a livelihood,” and explicitly held that “licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment.”
It is clear that Kansas’s law cannot be reconciled with the rights guaranteed to all Americans under the federal Constitution. But in all likelihood, sticking to state court is a wise decision. Federal courts cannot be trusted to protect the constitutional rights of trans Americans.
Last summer, in United States v. Skrmetti, the Supreme Court rejected a Fourteenth Amendment challenge to a Tennessee law that banned gender affirming care for trans youth. According to the Court’s Republican majority, the law only turned on age and medical use of the treatment, so there was no need for federal courts to trouble themselves with claims of unconstitutional discrimination against trans people.
When the Supreme Court agreed to hear Skrmetti, it also limited its review to claims under the Equal Protection Clause. It did not bother to consider the argument that banning healthcare for trans youths violated parents’ rights under the Due Process Clause to “to make decisions concerning medical care for their minor children.” But Monday, the Court’s Republicans reinstated a district court ruling that requires California schools to disclose students’ gender identities to their parents. Without a hint of irony, the Court declared in Mirabelli v. Bonta that letting children socially transition without parental consent likely violates parents’ rights under the Due Process Clause to make “decisions regarding their children’s mental health.” As LGBTQ rights activist Gillian Branstetter observed, the Court effectively created a regime in which “parents can force their trans children back into the closet but cannot help them out of it.”
Skrmetti and Bonta are not the Supreme Court’s only overtly anti-trans decisions. Last May, for instance, the Court’s Republicans summarily granted the Trump administration’s “emergency” request to kick transgender servicemembers out of the military while a lawsuit challenging the purge is pending, providing no reasoning for their decision. A few months afterwards, in another thinly-reasoned shadow docket order, the Court’s Republicans allowed the Trump administration to implement another anti-trans policy, requiring that all new passports reflect the holder’s sex assigned at birth, regardless of their gender identity. Later this term, the Supreme Court will decide two cases about state laws that prohibit transgender women and girls from playing school sports on women’s and girls’ teams. The oral argument in January suggested the Court’s Republicans will seize the opportunity to inflict further harm on trans people.
Against this grim federal backdrop, the prospect of state court litigation can be much more promising. States have their own constitutions with their own interpretive traditions, and do not need to move in lockstep with federal courts. Kansas’s Constitution, for example, protects residents’ “equal and inalienable natural rights.” And the Kansas Supreme Court ruled in 2019—years before the U.S. Supreme Court rescinded the federal right to abortion—that ending a pregnancy is one of the fundamental rights protected by the state constitution’s provisions. “At the core of the natural rights of liberty and the pursuit of happiness is the right of personal autonomy, which includes the ability to control one’s own body, to assert bodily integrity, and to exercise self-determination,” said the court in Hodes & Nauser v. Schmidt. Trans Kansans’s new lawsuit cites that same decision in support of their argument that SB 244 is unconstitutional.
Trans safety should not depend on state-by-state legislative idiosyncrasies. The federal constitution, properly understood, should protect transgender people across state lines. But in the face of a hostile federal judiciary, a turn to state courts and state constitutions may offer some hope of fair treatment under law.
