Does Kansas's Women's Bill of Rights law require driver's licenses and birth certificates to show a person's sex at birth?

Plain-English summary

A state representative asked the Attorney General three questions about 2023 Senate Bill 180, Kansas's "Women's Bill of Rights," which the Legislature passed over the Governor's veto. The bill defines "sex," "male," and "female" by reference to biological, reproductive characteristics at birth, and separately requires any agency that collects "vital statistics" to record each person in its data as male or female at birth. The representative wanted to know whether the bill requires driver's licenses to list biological sex, whether it dictates which prisons can house which inmates, and whether it requires birth certificates to reflect biological sex.

On driver's licenses, the opinion concluded that K.S.A. 8-243(a)'s existing requirement that licenses show a person's "gender" has long been treated by the Department of Revenue as synonymous with "sex," and SB 180's definition of sex now controls that term, meaning licenses must show biological sex at birth. Because Revenue also counts as an agency that collects "vital statistics" (it keeps birth dates and other data), the opinion concluded the bill imposes an ongoing duty: if Revenue's records show a sex different from the person's biological sex at birth, perhaps because a license was previously changed to reflect a gender identity, the agency must update its underlying data and future licenses to reflect biological sex at birth. On prisons, the opinion drew back: SB 180's definitions only apply "with respect to the application of an individual's biological sex pursuant to any state law or rules and regulations," and the Department of Corrections' inmate-housing practices are agency procedures, not formally adopted "rules and regulations" under Kansas's Rules and Regulations Filing Act, so SB 180 does not itself dictate how KDOC assigns most inmates. The one exception the opinion identified is a separate, older statute, K.S.A. 75-52,134, which already specifically requires the former state correctional-vocational training center portion of the Topeka Correctional Facility to house only biological female inmates; SB 180's definition of "female" governs that specific statute. Finally, on birth certificates, the opinion concluded the Department of Health and Environment likewise collects vital statistics and must record and issue birth certificates reflecting biological sex at birth, including restoring any birth certificate previously modified to list something else.

What this means for you

Kansas Department of Revenue officials processing driver's licenses: the opinion holds you must list a licensee's biological sex at birth on licenses, and where your existing records show something different because of a prior change, SB 180 requires updating the underlying data set and future licenses to reflect biological sex at birth.

Kansas Department of Health and Environment officials handling birth certificates: the opinion concludes the same ongoing duty applies to birth certificates: any previously modified certificate must be restored to reflect the person's biological sex at birth.

Kansas Department of Corrections administrators: the opinion clarifies that SB 180 does not, by itself, dictate your general inmate-housing practices, since those are agency procedures rather than formally adopted rules and regulations; the one place SB 180's definitions do bind KDOC is the specific statute requiring the relevant portion of Topeka Correctional Facility to house only biological female inmates.

Common questions

Does SB 180 change what "gender" means on a Kansas driver's license?
The opinion concludes K.S.A. 8-243's existing "gender" requirement already meant "sex" as commonly understood by the Department of Revenue, and SB 180's definition of biological sex now controls what that term means going forward.

Do all Kansas prisons have to separate inmates strictly by biological sex under this law?
No, according to the opinion, except for one specific statute covering part of the Topeka Correctional Facility; general inmate housing is governed by KDOC's own practices and procedures, which the opinion found are not "rules and regulations" subject to SB 180's definitions.

What happens to a birth certificate or driver's license that was previously changed to reflect a different gender identity?
The opinion concludes SB 180 imposes an ongoing duty on both KDOR and KDHE to correct their records, and any documents they issue going forward, to reflect the person's biological sex at birth.

Background and statutory framework

2023 Senate Bill 180 defines an individual's "sex" as the person's biological sex, male or female, at birth, and separately requires any state agency, school district, or political subdivision that collects "vital statistics" for anti-discrimination compliance or public health, crime, or economic data purposes to identify each person in its records as male or female at birth. K.S.A. 8-243(a) requires the Department of Revenue to include a licensee's "gender" on driver's licenses, and K.S.A. 8-249(a)(4) requires the agency to maintain records of all data fields on licenses it issues.

The opinion's key structural finding was that SB 180's biological-sex definitions apply "with respect to the application of an individual's biological sex pursuant to any state law or rules and regulations," a phrase that only reaches formally adopted rules and regulations as defined by Kansas's Rules and Regulations Filing Act (K.S.A. 77-415 et seq.), not informal agency practices or procedures. Because the opinion found no KDOC rule or regulation governing inmate housing by sex, general prison-housing decisions fall outside SB 180's reach, leaving only the narrower, pre-existing statute specific to part of the Topeka Correctional Facility. By contrast, KDHE's vital-statistics recordkeeping duties under K.S.A. 65-2401 and related statutes squarely fall within SB 180's vital-statistics provision, requiring biological sex at birth on birth certificates.

Citations and references

Statutes:
- K.S.A. 8-243(a); 8-249(a)(4)
- K.S.A. 65-2401(a); 65-2402; 65-2405; 65-2406; 65-2409a; 65-2417
- K.S.A. 65-6710(a)(3); 65-6726
- K.S.A. 75-52,134
- K.S.A. 77-415 (incl. (b)(1), (c)(4)); 77-420; 77-421
- 2023 Senate Bill 180

Source

• Landing page: https://www.ag.ks.gov/reports-resources/ag-opinions
• Original PDF: https://www.ag.ks.gov/home/showpublisheddocument/10516/638460984385170000

Original opinion text

June 26, 2023

ATTORNEY GENERAL OPINION NO. 2023- 2

The Honorable Carrie Barth
State Representative, 5th District
State Capitol, Room 167-W
Topeka, KS 66612

Re: Women's Bill of Rights

Synopsis: SB 180, in conjunction with K.S.A. 8-243(a), requires that driver's
licenses issued by the Kansas Department of Revenue (KDOR) list the
licensee's biological sex at birth. If KDOR knows that the sex listed on
an existing license does not reflect the licensee's biological sex at birth
(such as when KDOR has previously changed the sex on a person's
driver's license), SB 180 requires KDOR to update its data set to reflect
the licensee's sex at birth and include that sex on any licenses it issues
to that individual in the future.

         K.S.A. 75-52,134 requires that the Kansas Department of Corrections
         (KDOC) house only biological females in the specified portion of the
         Topeka Correctional Facility. Section 1(a) of SB 180 does not apply to
         agency policies and procedures that do not constitute rules and
         regulations and therefore does not restrict KDOC's placement of
         inmates more generally.

         Section 1(c) of SB 180 requires that the Kansas Department of Health
         and Environment (KDHE) list a person's biological sex at birth on the
         person's birth certificate. This is an ongoing requirement, so if KDHE
         has previously modified a birth certificate to list a sex other than the
         person's biological sex at birth, SB 180 requires KDHE to restore the
         birth certificate to its original form.

         Cited herein: K.S.A. 8-243; 65-2401; 65-2402; 65-2405; 65-2406; 65-
         2409a; 65-2417; 75-52,134; 77-415; 2023 Senate Bill 180.

                               *      *      *

Dear Representative Barth:

As State Representative for the Fifth District, you ask the following questions about
2023 Senate Bill 180 (SB 180):

  (1) Whether SB 180 requires a person's biological sex to be listed on a
  driver's license issued by the State of Kansas;

  (2) Whether SB 180 prohibits women's corrections facilities, such as
  Topeka Correctional Facility, from housing any individual who does
  not meet the statutory definitions for "female" established by SB 180,
  subsection (a)(2) and, relatedly, whether men's prisons are prohibited
  from housing a biological female, as defined by SB 180, who identifies
  as male and requests placement in a men's prison; and

  (3) Whether birth certificates issued in the State of Kansas must
  indicate the person's biological sex at birth.

SB 180 establishes a Women's Bill of Rights. It was adopted on April 27, 2023, when
the Legislature overrode the Governor's veto of the bill, and is scheduled to take
effect on July 1, 2023.

As relevant here, section 1(a) of SB 180 provides:

      (a) Notwithstanding any provision of state law to the contrary, with
  respect to the application of an individual's biological sex pursuant to
  any state law or rules and regulations, the following shall apply:
      (1) An individual's "sex" means such individual's biological sex,
  either male or female, at birth;
      (2) a "female" is an individual whose biological reproductive
  system is developed to produce ova, and a "male" is an individual
  whose biological reproductive system is developed to fertilize the ova of
  a female;
      (3) the terms "woman" and "girl" refer to human females, and the
  terms "man" and "boy" refer to human males;
      (4) the term "mother" means a parent of the female sex, and the
  term "father" means a parent of the male sex;

      (5) with respect to biological sex, the term "equal" does not mean
   "same" or "identical";
      (6) with respect to biological sex, separate accommodations are not
   inherently unequal; and
      (7) an individual born with a medically verifiable diagnosis of
   "disorder/differences in sex development" shall be provided legal
   protections and accommodations afforded under the Americans with
   disabilities act and applicable Kansas statutes.

In addition, section 1(c) of the bill, which is also relevant to your inquiry, requires
that:

   Any school district, or public school thereof, and any state agency,
   department or office or political subdivision that collects vital statistics
   for the purpose of complying with anti-discrimination laws or for the
   purpose of gathering accurate public health, crime, economic or other
   data shall identify each individual who is part of the collected data set
   as either male or female at birth.

Having provided this statutory background, we now turn to your specific questions
about SB 180.

                                     Driver's Licenses

K.S.A. 8-243(a) requires that driver's licenses issued by the Kansas Department of
Revenue (KDOR)'s Division of Vehicles "shall bear" the licensee's "gender," among
other information. Although this statute uses the term "gender," rather than "sex,"
"gender" is often used to mean "sex." Contemporary dictionaries commonly offer
"sex" as one definition of "gender,"1 and "gender" is used to refer to "sex" in several
other Kansas statutes.2 While more recently, some people have begun using

1 See, e.g., Gender, American Heritage Dictionary of the English Language (5th ed. 2015); Gender,

Merriam-Webster's Collegiate Dictionary (11th ed. 2003); Gender, Webster's Third New
International Dictionary (1993); see also Gender, Webster's New World College Dictionary (5th ed.
2014) ("either of the two sexual divisions, male or female, into which human beings are divided"). See
generally Gender, Garner's Dictionary of Legal Usage (3d ed. 2011) (attributing the rise of "gender"
as a synonym for "sex" to the "distracting duality" of the latter word; "'When men see or hear the
word sex, they think of only one thing.'" (quoting Transcript of Interview of U.S. Supreme Court
Associate Justice Ruth Bader Ginsburg, 70 Ohio St. L.J. 805, 817 (2009))).
2 In particular, K.S.A. 65-6710(a)(3) provides for printed materials informing pregnant women that

"[g]ender, eye color and other traits are determined at fertilization," a clear reference to sex rather
than gender identity. And K.S.A. 65-6726, which prohibits abortion based on the "sex of the unborn
child," is titled "Abortion based on gender; prohibited." While that title was editorially supplied by
the Office of Revisor of Statutes, which drafts bills for the Legislature, this indicates that both the
Legislature and the office that performs the service of legislative drafting for the Legislature use
"gender" and "sex" synonymously.

"gender" to refer to a "gender identity" apart from one's biological sex at birth, we
believe that the Legislature in K.S.A. 8-243 used "gender" in its traditional sense to
mean "sex."

This conclusion is buttressed by the fact that KDOR itself has used the terms
"gender" and "sex" interchangeably. In carrying out K.S.A. 8-243's gender-
identification requirement, KDOR uses the word "sex" on driver's licenses,3
indicating that KDOR has always understood "gender" in K.S.A. 8-243 to mean sex.
Since the Legislature adopted SB 180 against this backdrop, we believe the
Legislature would have understood its definition of "sex" in SB 180 to govern the
meaning of "gender" as used in K.S.A. 8-243.

Consequently, we conclude that section 1(a) of SB 180, in conjunction with K.S.A. 8-
243(a), requires KDOR to list the licensee's "biological sex, either male or female, at
birth" on driver's licenses that it issues.

This raises questions about existing driver's licenses that list a gender identity
different that the person's biological sex at birth. Under section (1)(c) of SB 180,
"any state agency . . . that collects vital statistics . . . for the purpose of gathering
accurate public health, crime, economic or other data shall identify each individual
who is part of the collected data set as either male or female at birth." We believe
that KDOR is subject to this provision. Although "vital statistics" is not defined in
SB 180, the term is frequently used to refer to data about births,4 and at minimum
KDOR collects licensees' birth dates.5 Thus, references to sex or gender in the "data
set" maintained by KDOR must reflect a licensee's biological sex at birth.6 A driver's
license is not simply a physical card issued to a licensed driver; it is reflection of a
data set that is continually maintained and updated to ensure its accuracy.7
Updated addresses and photographs exemplify the nature of the driver's license as
a data set that is maintained through time. Accordingly, if KDOR knows that the
sex listed in its data set does not reflect the licensee's biological sex at birth (such as
when KDOR has previously changed the sex on a person's driver's license), SB 180
requires KDOR to update its data set to reflect the licensee's sex at birth and
include that sex on any licenses it issues to that individual in the future.8

3 https://www.ksrevenue.gov/dovrealid.html (providing sample images of REAL ID and non-REAL ID

licenses).
4 See K.S.A. 65-2401(a); Vital Statistics, Merriam-Webster Dictionary, https://www.merriam-

webster.com/dictionary/vital%20statistics.
5 KDOR also collects information about licensees' sex, height, weight, and eye color, among other

items.
6 SB 180, § 1(c).
7 K.S.A. 8-249(a)(4) (requiring KDOR to "maintain suitable records from which information showing

the following may be obtained: . . . all data fields printed on drivers' license and identification cards
issued by the state").
8 In the case of a person who seeks to identify and present himself or herself as a member of the

opposite sex, that person is entitled to reflect that new image in the manner the person presents

                                  Correctional Facilities

Turning to your question about prisons, we note that section 1(b) of SB 180 states
that "distinctions between the sexes with respect to . . . prisons or other detention
facilities . . . are substantially related to the important governmental objectives of
protecting the health, safety and privacy of individuals in such circumstances."
While this section declares that these distinctions are justified, it does not mandate
that the Kansas Department of Corrections (KDOC) make these distinctions.

Instead, your question must be answered by reference to section 1(a) of the bill,
which provides definitions "with respect to the application of an individual's
biological sex pursuant to any state law or rules and regulations." No state statute
or Kansas Administrative Regulation requires KDOC to maintain separate
correctional facilities for men and women as a general matter. K.S.A. 75-52,134
does specify that "[t]he part of the Topeka correctional facility which formerly was
known as the state correctional-vocational training center at Topeka, Kansas, shall
be used to confine or house only female inmates having a custody or security
classification of medium or minimum or lower . . . ."9 The definition of "female" in
SB 180 applies to this statute, which therefore requires that KDOC house only
individuals who were biological females at birth in the specified portion of the
Topeka Correctional Facility. But K.S.A. 75-52,134 does not apply more broadly to
other facilities.

Rather, KDOC's placement of inmates appears to be largely a matter of agency
practices and procedures. This raises the question of whether the term "rules and
regulations" in section 1(a) of SB 180 encompasses these practices and procedures.

"Rules and regulations" has an established meaning under Kansas law. The Rules
and Regulations Filing Act, K.S.A. 77-415 et seq., provides that "each rule and
regulation issued or adopted by a state agency shall comply with the requirements"
of the Act.10 The Act defines "[r]ule and regulation," "rule," and "regulation" to mean
"a standard, requirement or other policy of general application that has the force
and effect of law, including amendments or revocations thereof, issued or adopted
by a state agency to implement or interpret legislation."11 Rules and regulations so
defined must go through an administrative process involving several layers of
review, notice, and a public hearing before adoption.12 We have found no rule or

himself in the photograph that is contained in the driver's license data set. However, SB 180
requires that the designation of the person's sex in both the data set and the physical card that
reflects the data set must indicate the person's biological sex at birth.
9 (Emphasis added.)
10 K.S.A. 77-415(b)(1).
11 K.S.A. 77-415(c)(4).
12 K.S.A. 77-420; 77-421.

regulation promulgated by the KDOC addressing the housing of inmates by sex. We
conclude that an agency practice or policy that is not a "'rule and regulation" as
defined in K.S.A. 77-415(c)(4) is not subject to the definitions in section 1(a) of SB
180.

                                    Birth Certificates

Finally, you ask about the listing of biological sex on a person's birth certificate. The
answer to this question turns on section (1)(c) of SB 180, which requires that "any
state agency . . . that collects vital statistics . . . for the purpose of gathering
accurate public health, crime, economic or other data shall identify each individual
who is part of the collected data set as either male or female at birth."

We have no trouble concluding that the Department of Health and Environment
(KDHE) is a "state agency, department or office or political subdivision that collects
vital statistics for the purpose of . . . gathering accurate public health, crime,
economic or other data." Elsewhere, "[v]ital statistics" is defined to include "the
registration, preparation, transcription, collection, compilation, and preservation of
data pertaining to birth[s] . . . ."13 And state law creates an "office of vital
statistics"14 under KDHE's jurisdiction and requires the KDHE Secretary to appoint
a "state registrar of vital statistics"15 who is responsible for registering,
maintaining, and issuing copies of birth certificates.16 Because KDHE collects vital
statistics, SB 180 requires it to "identify each individual who is part of the collected
data set as either male or female at birth."17 Birth certificates maintained by
KDHE, and copies of those certificates issued by KDHE, therefore must indicate the
person's biological sex at birth.

As with driver's licenses, this raises questions about birth certificates that have
previously been modified by KDHE to list a gender identity different that the
person's biological sex at birth. Section (1)(c) of SB 180 indicates an ongoing
requirement, the "data set" maintained by the agency "shall identify each
individual" who is part of that data set as male or female at birth. Accordingly, if
KDHE has previously modified a birth certificate to list a sex different than the
individual's sex at birth, SB 180 requires KDHE to change the birth certificate back
to reflect the individual's sex at birth.

13 K.S.A. 65-2401(a).
14 K.S.A. 65-2402.
15 K.S.A. 65-2405.
16 K.S.A. 65-2406; 65-2409a; 65-2417.
17 SB 180, § 1(c).

         Sincerely,

         /s/ Kris W. Kobach

         Kris W. Kobach
         Attorney General


         /s/ Anthony J. Powell

         Anthony J. Powell
         Solicitor General