Foster et al v. Andersen et al

Filing 1

COMPLAINT with trial location of Kansas City ( Filing fee $400, Internet Payment Receipt Number AKSDC-4607669.), filed by C. K., Nyla Foster, Jessica Hicklin, Luc Bensimon, Kansas Statewide Transgender Education Project.(Lawrence, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KANSAS CITY DIVISION

NYLA FOSTER; LUC BENSIMON;
JESSICA HICKLIN; C.K.; and KANSAS
STATEWIDE TRANSGENDER
EDUCATION PROJECT,
Civil Action No.
Plaintiffs,
v.
JEFF ANDERSEN, in his official capacity as
Secretary of the Kansas Department of Health
and Environment; ELIZABETH W. SAADI,
in her official capacity as State Registrar for
the State of Kansas; and KAY HAUG, in her
official capacity as Director of Vital Statistics
for the State of Kansas,
Defendants.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Plaintiffs Nyla Foster; Luc Bensimon; Jessica Hicklin; C.K.1 (collectively, “Individual
Plaintiffs”); and Kansas Statewide Transgender Education Project (together with the “Individual
Plaintiffs,” the “Plaintiffs”), by and through their attorneys, file this Complaint for Declaratory
and Injunctive Relief against Defendants Jeff Andersen, in his official capacity as Secretary of the
Kansas Department of Health and Environment; Elizabeth W. Saadi, in her official capacity as
State Registrar for the State of Kansas; and Kay Haug, in her official capacity as Director of Vital
Statistics for the State of Kansas (collectively, “Defendants”), and respectfully allege as follows:

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Plaintiff C.K. has filed a motion to proceed using his initials, rather than his full name, in order
to protect his privacy regarding his transgender status and his medical condition and treatment.
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INTRODUCTION
1.

Plaintiffs are transgender persons born in Kansas and a Kansas-based organization

that represents transgender people and their families in their efforts to foster a society free of
discrimination.
2.

Individual Plaintiffs and transgender members of the Kansas Statewide

Transgender Education Project (“K-STEP”) wish to correct their respective Kansas birth
certificates to accurately reflect their sex, consistent with their respective gender identities. They
seek access to birth certificates they can use without the unnecessary and potentially harmful
disclosure of their transgender status and without being exposed to discrimination.
3.

Plaintiffs Nyla Foster and Jessica Hicklin are both women born in Kansas, yet the

Kansas Department of Health and Environment and the Kansas Office of Vital Statistics
incorrectly identifies them as male on their birth certificates. Plaintiffs Luc Bensimon and C.K.
are both men born in Kansas, yet the Kansas Department of Health and Environment and the
Kansas Office of Vital Statistics incorrectly identifies them as female on their birth certificates.
K-STEP’s transgender members also have incorrect gender markers on their birth certificates.
4.
through life.

Accurate identity documents are essential to every person’s ability to navigate
Access to employment, education, housing, health care, banking, travel, and

government services often depend on having documentation that accurately reflects a person’s
identity. A birth certificate is a basic and ubiquitous identity document routinely relied upon in
many of these settings to verify a person’s identity.

Indeed, birth certificates are such a

foundational identity document that they are not only used for many of these purposes, they are
relied upon to obtain other essential identification documents.

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5.

While the State of Kansas provides non-transgender (i.e., cisgender) people born in

Kansas with accurate birth certificates—birth certificates that reflect their true sex, consistent with
their gender identity—the State of Kansas categorically bars transgender people from obtaining
birth certificates that reflect their true sex, consistent with their gender identity (hereinafter the
“Birth Certificate Policy”). To be sure, understanding the importance of having an accurate birth
certificate for purposes of identification, the State of Kansas permits cisgender persons born in
Kansas to correct the sex listed on their birth certificates, but specifically prohibits transgender
persons born in Kansas from doing the same.
6.

In practical terms, Kansas’s Birth Certificate Policy denies transgender persons

born in Kansas access to birth certificates they can use. This absolute refusal to issue accurate
birth certificates to transgender persons, consistent with their gender identity, erects a significant
barrier to the full recognition, participation, and inclusion of transgender people in society and
subjects them to discrimination, invasions of privacy, harassment, humiliation, stigma, harm to
their health, and even violence.
7.

The State of Kansas refuses to correct the gender marker on transgender people’s

birth certificates regardless of what steps a person may have taken (medically, socially, or legally)
to live in a manner consistent with their gender identity.
8.

Kansas’s Birth Certificate Policy stands in sharp contrast to the current approach of

nearly every state in the United States (except Tennessee and Ohio, whose similar policy is
presently being challenged in court), Puerto Rico, and the District of Columbia, all of which allow
transgender persons to correct their birth certificates so that they accurately reflect their sex,
consistent with their gender identity. This categorical bar is also inconsistent with Kansas’s own

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policy of permitting transgender persons to correct the gender marker on their driver’s licenses to
match their gender identity.
9.

Kansas’s Birth Certificate Policy, which each Defendant enforces, violates the

United States Constitution’s guarantees to equal dignity, equal protection of the laws, liberty,
privacy, freedom of expression, and freedom from compelled speech.
10.

As confirmed by the practices adopted by nearly every other state or jurisdiction in

this country, as well as Kansas’s own policy permitting corrections to the gender marker on
driver’s licenses, there is no compelling, important, or even legitimate governmental justification
to support Kansas’s categorical refusal to provide transgender people with accurate birth
certificates, consistent with their gender identities.
JURISDICTION AND VENUE
11.

This action arises under 42 U.S.C. §§ 1983 and 1988 to redress the deprivation,

under color of state law, of rights secured by the United States Constitution.
12.

This Court has original jurisdiction over the subject matter of this action pursuant

to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the laws and the
Constitution of the United States and address the deprivation, under color of state law, of rights
secured by the United States Constitution.
13.

Venue is proper in this Court under 28 U.S.C. § 1391(b) because all Defendants

reside within the District of Kansas, Defendants reside and have offices within the District of
Kansas, and/or a substantial part of the events that gave rise to Plaintiffs’ claims occurred, and will
continue to occur, within the District of Kansas.

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14.

This Court has the authority to enter a declaratory judgment and to provide

preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of
Civil Procedure and 28 U.S.C. §§ 2201 and 2202.
15.

This Court has personal jurisdiction over Defendants because they are domiciled in

Kansas and/or have otherwise made and established contacts with Kansas sufficient to permit the
exercise of personal jurisdiction over them.
PARTIES
Plaintiffs
16.

Plaintiff Nyla Foster (“Ms. Foster”) is a 30-year-old woman who was born in

Kansas City, Kansas and currently resides in Kansas City, Missouri. She is transgender. Ms.
Foster wishes to correct her Kansas birth certificate, which currently indicates her sex as male, to
accurately reflect her sex as female, as determined by her gender identity.
17.

Plaintiff Luc Bensimon (“Mr. Bensimon”) is a 46-year-old man who was born and

currently resides in Topeka, Kansas. He is transgender. Mr. Bensimon wishes to correct his
Kansas birth certificate, which currently indicates his sex as female, to accurately reflect his sex
as male, as determined by his gender identity.
18.

Plaintiff Jessica Hicklin (“Ms. Hicklin”) is a 39-year-old woman who was born in

Medicine Lodge, Kansas and is currently incarcerated at the Potosi Correctional Center in Mineral
Point, Missouri. She is transgender. Ms. Hicklin wishes to correct her Kansas birth certificate,
which currently indicates her sex as male, to accurately reflect her sex as female, as determined by
her gender identity.
19.

Plaintiff C.K. is a 29-year-old man who was born in Wichita, Kansas and currently

resides in Tulsa, Oklahoma. He is transgender. C.K. wishes to correct his Kansas birth certificate,

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which currently indicates his sex as female, to accurately reflect his sex as male, as determined by
his gender identity.
20.

The Kansas Statewide Transgender Education Project (“K-STEP”) is a leading

organization in Kansas advocating for a society free of discrimination against transgender, gender
queer, gender nonconforming, and gender questioning individuals and their families through
education, networking, and empowerment of leaders. Many transgender members of K-STEP,
including Plaintiff Luc Bensimon, wish to correct their Kansas birth certificates to accurately
reflect their sex, consistent with their gender identities.
Defendants
21.

Defendant Jeff Andersen is sued in his official capacity as Secretary of the Kansas

Department of Health and Environment. In his capacity as Secretary of Health and Environment,
Mr. Andersen enforces Kansas’s vital statistics laws. As part of his duties, pursuant to Kan. Stat.
Ann. § 65-2402, Mr. Andersen directs and supervises Kansas’s system of vital records; prescribes
the forms for collection, transcription, compilation, and preservation of vital statistics; and directs,
supervises, and controls the activities of all persons pertaining to the operation of Kansas’s system
of vital records. Mr. Andersen has knowingly encouraged, condoned, and acquiesced in the acts
barring Plaintiffs from correcting their birth certificates to accurately reflect their sex, consistent
with their gender identity. Mr. Andersen’s administration and enforcement of Kansas’s vital
statistics laws are actions under color of state law. Mr. Andersen is a person within the meaning
of 42 U.S.C. § 1983 and has acted under color of state law at all times relevant to this Complaint.
22.

Defendant Elizabeth W. Saadi, Ph.D. is sued in her official capacity as State

Registrar for the State of Kansas. In her capacity as State Registrar, Dr. Saadi enforces Kansas’s
vital statistics laws. As part of her duties, pursuant to Kan. Stat. Ann. § 65-2406, Dr. Saadi is

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charged with the collection of vital statistics and is the custodian of all files and records, and with
the obligation to enforce Kansas’s vital statistics laws and their respective rules and regulations.
Dr. Saadi has knowingly encouraged, condoned, and acquiesced in the acts barring Plaintiffs from
correcting their birth certificates to accurately reflect their sex, consistent with their gender
identity. Dr. Saadi’s administration and enforcement of Kansas’s vital statistics laws are actions
under color of state law. Dr. Saadi is a person within the meaning of 42 U.S.C. § 1983 and has
acted under color of state law at all times relevant to this Complaint.
23.

Defendant Kay Haug is sued in her official capacity as Director of Vital Statistics

for the State of Kansas. In this role, Ms. Haug exercises direct authority over the issuance,
collection, processing, amendment, and correction of Kansas birth certificates. Ms. Haug has
knowingly encouraged, condoned, and acquiesced in the acts barring Plaintiffs from correcting
their birth certificates to accurately reflect their sex, consistent with their gender identity. Ms.
Haug’s administration and enforcement of Kansas’s vital statistics laws are actions under color of
state law. Ms. Haug is a person within the meaning of 42 U.S.C. § 1983 and has acted under color
of state law at all times relevant to this Complaint.
STATEMENT OF FACTS
Background Information Regarding Sex, Gender Identity, and Gender Dysphoria
24.

A person has multiple sex-related characteristics, including hormones, external and

internal morphological features, external and internal reproductive organs, chromosomes, and
gender identity. These characteristics may not always be in alignment.
25.

Gender identity—a person’s fundamental, internal sense of their gender—is a core

characteristic of human identity and the primary factor in determining a person’s sex. Gender
identity is innate and typically fixed at an early age. Every person has a gender identity.

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26.

The phrase “sex assigned at birth” refers to the sex recorded on a person’s birth

certificate at the time of birth. Typically, a person is assigned a sex on their birth certificate solely
on the basis of the appearance of external reproductive organs at the time of birth. Other sexrelated characteristics (such as a person’s chromosomal makeup or gender identity, for example)
typically are not assessed or considered at the time of birth.
27.

For the majority of people, their gender identity matches their sex assigned at birth.

That is not the case, however, for transgender people.
28.

Transgender persons are people whose gender identity diverges from the sex they

were assigned at birth. A transgender man’s sex is male (even though he was assigned the sex of
female at birth) and a transgender woman’s sex is female (even though she was assigned the sex
of male at birth).
29.

Cisgender persons are people whose gender identity aligns with the sex they were

assigned at birth. A cisgender man’s sex is male (and was assigned the sex of male at birth) and a
cisgender woman’s sex is female (and was assigned the sex of female at birth).
30.

External reproductive organs are not always determinative of a person’s sex.

31.

Where a person’s sex-related characteristics are not in typical alignment with each

other, gender identity is the critical determinant of that person’s sex.
32.

Gender identity and transgender status are thus inextricably linked to one’s sex and

are sex-related characteristics.
33.

Attempts to change a person’s gender identity to bring it into alignment with the

person’s assigned sex at birth are not only unsuccessful but also unethical and dangerous to the
individual, risking psychological harm and even suicide.

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34.

Living in a manner consistent with one’s gender identity is critical to a person’s

health and well-being. The discordance between one’s gender identity and sex assigned at birth
can sometimes cause clinically significant distress, a serious medical condition known as gender
dysphoria. Gender dysphoria, if improperly treated, can have serious health consequences,
including psychological distress, anxiety, depression, suicidal ideation, and self-harm. Gender
dysphoria is recognized by the American Psychiatric Association’s Diagnostic and Statistical
Manual of Mental Disorders, Fifth Ed. (2013) (“DSM-V”) and other leading medical and mental
health professional groups, such as the American Medical Association and the American
Psychological Association. As such, treatment for gender dysphoria is governed by internationally
recognized standards of care.
35.

The process by which transgender people come to live in a manner consistent with

their gender identity, rather than their sex assigned at birth, is known as transition. The refusal to
treat a person in a manner consistent with their gender identity is harmful to that person’s dignity
and well-being.
36.

The steps that transgender people take to transition vary with each individual’s

specific needs, but these steps generally include one or more of the following: social transition,
gender-affirming medical treatment, and/or gender-affirming surgical treatment.
37.

Social transition is defined as living in a manner consistent with one’s gender

identity, including one’s presentation and social functioning. For example, for a transgender
woman, social transition might include changing her first name to one typically associated with
women, changing her identity documents to indicate her sex as female, wearing clothing and
adopting grooming habits typically associated with women, and otherwise presenting herself
publicly as a woman in all aspects of her life.

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38.

Social transition is a part of necessary medical treatment for many transgender

people with gender dysphoria. While social transition is adequate treatment for gender dysphoria
for some transgender people, others may require medical care as well.
39.

Whether other treatment is medically necessary or even appropriate, however,

depends on a person’s individualized needs and health. A person’s ability to access treatment—
particularly gender-affirming surgery—may also be limited by financial resources, insurance
coverage, provider availability, and other barriers to health care access.
40.

The various components associated with transition—social transition and gender-

affirming medical care—do not change a person’s sex, but instead bring a person’s physical
appearance and lived experience into better alignment with their true sex, as determined by their
gender identity.
41.

From a medical and scientific perspective, there is no basis for refusing to

acknowledge a transgender person’s true sex, as determined by their gender identity, based on
whether that person has undergone particular surgeries or any other medical treatment.
42.

Depriving transgender people of birth certificates that match their gender identity

harms their health and well-being. This deprivation also interferes with the international standards
of care for gender dysphoria by impeding a transgender person’s ability to live in a manner
consistent with their gender identity, and can aggravate symptoms of gender dysphoria.
The Need for Accurate Birth Certificates Matching One’s Gender Identity
43.

A birth certificate is more than a piece of paper. A birth certificate is a trusted and

essential government-issued document that serves as proof of a person’s identity. For this reason,
the government makes a copy of a birth certificate available to the person reflected on the birth
certificate, rather than merely reserving for the government’s own use.

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44.

The birth certificate also reflects the government’s recognition of a person’s

identity, including the person’s sex, just as a marriage certificate reflects government recognition
of a person’s relationship.
45.

The use of birth certificates to demonstrate a person’s identity is ubiquitous in our

society. Birth certificates are commonly used in a wide variety of contexts and are one of the
primary ways of proving citizenship, for example. In the ordinary course of life, a birth certificate
is often required for determining eligibility for employment, obtaining other identity documents
(including driver’s licenses, state identification cards, social security cards, passports, and other
state and federal identification documents), enrolling in school, proving age, or enrolling in
governmental programs.
46.

Put simply, all people need access to a birth certificate that accurately reflects their

identity. However, transgender people born in Kansas, unlike cisgender people born in Kansas,
do not have access to accurate birth certificates.
47.

For transgender people, the gender markers originally placed on their birth

certificate are inaccurate because they are based on visual assumptions about their sex made at the
time of their births.
48.

Many transgender people are perceived by others in accordance with their gender

identity. Denying transgender people birth certificates that accurately reflect their sex, consistent
with their gender identity, reveals private information in contexts where this information would
otherwise remain undisclosed (e.g., at a new job), regardless of whether a person’s transgender
status may otherwise be known to others (e.g., to friends and family), and regardless of a person’s
desire not to disclose that personal information. Transgender people denied accurate birth
certificates are thus deprived of significant control over the circumstances surrounding disclosure

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of their transgender status (and sometimes medical condition), including when, where, how, and
to whom their transgender status is disclosed.
49.

A perceived mismatch between a transgender person’s gender identity and the

information on their birth certificate can often subject that person to invasions of privacy. A
person’s transgender status (and for some, medical diagnosis of gender dysphoria) constitute
deeply personal and sensitive information over which a transgender person has a reasonable
expectation of privacy, and disclosure of which can jeopardize a person’s safety and risk bodily
harm.
50.

A mismatch between the gender marker on a person’s birth certificate and the

information on that person’s other identity documents can also subject that person to harms such
as interference with the person’s ability to pass background checks and to obtain benefits that
persons without a mismatch routinely enjoy. In some circumstances, such a mismatch may
constitute a total barrier to obtaining such benefits.
51.

More generally, transgender people experience substantial discrimination and

harassment in a wide variety of settings, including employment, public accommodations, health
care, and interactions with government employees and officials, including those in law
enforcement. Transgender people are disproportionately targeted for hate crimes. These realities
make the involuntary disclosure of a person’s transgender status particularly harmful and
dangerous.
52.

Furthermore, denying transgender persons accurate birth certificates, consistent

with their gender identity, undermines, rather than serves, the purpose of verifying that a
transgender person is, in fact, the same person reflected on that person’s birth certificate.

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For

example, forcing a transgender man to use a birth certificate that inaccurately states that he is
female will cause others to question whether he is the same person reflected on the birth certificate.
Kansas’s Birth Certificate Policy
53.

Vital records, including birth, death, marriage, and divorce records, in Kansas are

not public records.
54.

Pursuant to the Uniform Vital Statistics Act, the Kansas Office of Vital Statistics

receives and preserves vital records for events that occur in Kansas, such as births, deaths,
marriages, and divorces. As such, the Office of Vital Statistics exercises responsibility for the
registration, issuance, correction, and changes to Kansas birth certificates.
55.

Pursuant to the Uniform Vital Statistics Act and Defendants’ policies and

procedures, Kansas birth certificates include, inter alia, the given name and surnames of the
newborn child, the date of birth, the names of the child’s parents, and the sex of the child.
56.

Upon information and belief, it is the practice of the State of Kansas to determine

the sex of newborns, for purposes of their birth certificates, based solely on external genitalia.
57.

Recognizing that the information in a birth certificate may sometimes be inaccurate

or need updating, the Uniform Vital Statistics Act and the regulations promulgated and enforced
by Defendants permit the correction of errors and updating of birth certificate records.
58.

For example, pursuant to K.S.A. 65-2422a, in cases in which a person has lawfully

changed their name, such person may present a duly authenticated copy of the court order changing
their name and request a new certificate of birth.
59.

Similarly, pursuant to K.S.A. 25-2423(a), following the adoption of a child, a birth

certificate reflecting only the names of the adoptive parents and in the new name of the adopted
child must be substituted for the original registered birth certificate. The original registration

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certificate of the birth of the adoptee, decree of adoption, and other documents are kept under seal
and can only be opened upon the demand of the adopted person if of legal age or by an order of
court.
60.

And, pursuant to K.S.A. 65-2422c, Defendants may prescribe procedures for

making minor corrections to birth certificates or records.
61.

Pursuant to Kan. Admin. Regs. 28-17-20, the sex listed on a person’s birth

certificate may be corrected if the change is substantiated with that person’s affidavit, or a parent’s
affidavit if the person is under the age of 18, that the sex was incorrectly recorded and with medical
records substantiating the registrant’s sex at the time of birth.
62.

Indeed, on its public website, the Office of Vital Statistics states, “If your sex was

listed incorrectly at the time of your birth, you need to provide our office with a notarized statement
requesting that your sex or gender be corrected.”
63.

However, Defendants enforce a policy, custom, or practice that categorically

prohibits transgender persons born in Kansas from correcting the sex listed on their birth
certificates so that it matches their true sex, consistent with their gender identity (the “Birth
Certificate Policy”). No specific statute or regulation prohibits the correction of the gender marker
on a birth certificate in order to accurately reflect the sex of a transgender person.
64.

So while Defendants have promulgated rules and regulations permitting the

Defendants ability to correct the sex listed on a person’s birth certificate in order to accurately
identify the sex of such person, Defendants categorically prohibit transgender persons from
correcting the sex listed on their birth certificates in a manner consistent with their gender identity.
65.

Kansas’s Birth Certificate Policy stands in sharp contrast to the approach taken by

forty-seven (47) other states, the District of Columbia, and Puerto Rico, all of which permit

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transgender people to correct the gender marker on their birth certificates to accurately reflect their
sex, consistent with their gender identity. These states typically do not require transgender persons
to undergo particular medical procedures, such as surgery, in order to correct the sex listed on their
birth certificates.
66.

Similarly, the U.S. Department of State permits corrections to the gender marker

on a person’s passport.

Likewise, other federal agencies, such as the Social Security

Administration, permit the correction of a transgender person’s gender marker in their records.
67.

Kansas’s Birth Certificate Policy also stands in stark contrast with Kansas’s own

policy permitting transgender people to correct the gender marker on their driver’s licenses and
state identification cards to accurately reflect their sex consistent with their gender identity. The
Kansas Division of Motor Vehicles permits transgender persons to correct their driver’s licenses
and state identification cards so that these identification documents accurately reflect their sex
consistent with their gender identity. Like the federal government, the Kansas Division of Motor
Vehicles does not require transgender persons to have any particular medical procedure, such as
surgery, to do so. Such practice is consistent with mainstream medical organizations, which
support the correction of the gender marker in transgender people’s identity documents, and
oppose any requirement of specific medical care, including surgeries, in order for transgender
people to make such corrections.
Plaintiff Nyla Foster
68.

Plaintiff Nyla Foster is a 30-year-old African-American woman who was born in

Kansas City, Kansas and currently resides in Kansas City, Missouri. Ms. Foster wishes to correct
her Kansas birth certificate, which currently indicates that her sex is male, to accurately reflect her
sex as female, as determined by her gender identity.

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69.

Ms. Foster is a community advocate who has dedicated much of her career to

working with lesbian, gay, bisexual, transgender, and queer people who have experienced
violence. Ms. Foster is a former Project Coordinator & Advocate for the Kansas City Anti
Violence Project, a non-profit organization dedicated to providing advocacy for LGBTQ people
who have experienced domestic violence, sexual assault, hate crime, and neglect. In addition, Ms.
Foster is part of the leadership of the Trans Women of Color Collective, where she works to
advance the transgender community through the art of pageantry, health advocacy, and service.
70.

Currently, Ms. Foster works at a Kansas City-based non-profit committed to

providing housing and supportive services to homeless children, youth, families, men, and women
with the goal of helping them move toward independence and self-sufficiency, and ending
homelessness in the Kansas City community.
71.

Ms. Foster is transgender. Although Ms. Foster was assigned male at birth, she is

female. Ms. Foster’s identity as a woman is just as valid as that of women who were assigned
female at birth.
72.

Ever since she was a young child, Ms. Foster knew that she was girl. Not only was

she uncomfortable with being identified and treated as a boy, as a young child, Ms. Foster was
interested in toys and activities that were stereotypically associated with girls, including playing
with dolls and acting and presenting in a typically feminine manner.
73.

By the time Ms. Foster was a teenager, Ms. Foster knew that she was transgender.

Ms. Foster knew she was a woman and identified as such. She was “outed” as transgender to her
mother by a family friend, and Ms. Foster’s mother was supportive of her and her need to live her
truth as a woman.

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74.

Since beginning to live openly as a woman over fifteen years ago, Ms. Foster has

taken steps to bring all aspects of her life into conformity with her gender identity, including steps
to socially and medically transition.
75.

Ms. Foster has been diagnosed with gender dysphoria and has undergone clinically

appropriate medical treatment. These steps she has taken in her transition have brought Ms.
Foster’s body characteristics and outside appearance into alignment with her female gender
identity.
76.

The general public perceives Ms. Foster as the woman she is.

77.

In addition to the medical transition steps Ms. Foster has taken, at the age of 14

years old, Ms. Foster began to live openly as a woman and was perceived as such by members of
her community and family.
78.

However, after she began living openly as a girl, Ms. Foster was forced by her

public school to take night classes, separate from the other students, because school officials
considered her “transgender presence” to be disruptive to the learning environment. As a result,
Ms. Foster was forced to drop out of school. Notwithstanding the discrimination she faced in
school, Ms. Foster was able to obtain her high school diploma in 2007 after attending a local
community college.
79.

Ms. Foster also corrected the gender marker on her driver’s license. She later

legally changed her name from the traditionally male name she was given at birth to her current
and traditionally female name, Nyla Foster, in 2008. After obtaining a court order legally changing
her name, Ms. Foster updated the name on her driver’s license and with the Social Security
Administration.

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80.

Ms. Foster also sought to correct both her name and the gender marker on her birth

certificate. However, as a result of Kansas’s Birth Certificate Policy, Ms. Foster has not been able
to do so. Because of Kansas’s Birth Certificate Policy, Ms. Foster is prohibited from correcting
the gender marker on her birth certificate. Thus, for Ms. Foster, changing her name on her birth
certificate would be futile as the birth certificate would still disclose her transgender status.
81.

Because of the Birth Certificate Policy, Ms. Foster’s birth certificate still incorrectly

identifies her as male, as she is currently prohibited from correcting the gender marker on this
essential identity document. As a result, Ms. Foster’s birth certificate is inconsistent with her other
identification documents.
82.

Ms. Foster reasonably fears that possessing a birth certificate that fails to accurately

reflect her sex, consistent with her gender identity, increases the chances that she will be subjected
to invasions of privacy, prejudice, discrimination, harassment, humiliation, or even violence.
83.

Presenting a birth certificate that incorrectly labels her as male and thus discloses

her transgender identity leaves Ms. Foster susceptible to discrimination, particularly in the
employment context. For example, Ms. Foster has been required to present her birth certificate
during job application processes. Because her birth certificate inaccurately states that she is male,
providing this document has led directly to Ms. Foster being “outed” as transgender, and
subsequently treated suspiciously and disrespectfully by prospective employers.
84.

In addition, Ms. Foster is well aware of and personally familiar with the high

incidence of harassment, discrimination, and violence directed at transgender people, particularly
transgender women of color like herself, in Kansas and Missouri. Indeed, Ms. Foster has firsthand experience with situations in which her physical safety has been threatened after her
transgender identity was disclosed without her consent.

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85.

Ms. Foster is stigmatized and harmed by Kansas’s Birth Certificate Policy.

86.

As a result of Kansas’s Birth Certificate Policy, Ms. Foster’s current Kansas birth

certificate reflects the sex she was incorrectly assigned at birth, erroneously stating that she is male
and forcing her to use an identity document that inaccurately portrays her identity.
87.

The refusal by the State of Kansas to recognize Ms. Foster’s female identity

impedes Ms. Foster’s ability to function successfully as a woman in all aspects of her life.
Presenting an identity document that identifies her as male is not only distressful but also
dangerous, putting her at risk of discrimination and even violence.
88.

Moreover, Ms. Foster objects to the state’s ideological message that sex is

determined solely by the appearance of external genitals at the time of birth, a message that is
inconsistent with the scientific and medical understanding of sex.
89.

Ms. Foster needs her identity documents to be congruent with who she is. She

believes that her identity should be recognized and respected by the State of Kansas.
90.

Being denied a birth certificate that accurately reflects her sex, consistent with her

gender identity, is psychologically and emotionally harmful to Ms. Foster, who is faced with the
persistent reminder that Kansas does not respect her for who she is and does not recognize her
personhood.
Plaintiff Luc Bensimon
91.

Plaintiff Luc Malik Bensimon is a 46-year-old African-American man who was

born and currently resides in Topeka, Kansas. Mr. Bensimon wishes to correct his Kansas birth
certificate, which currently indicates that his sex is female, to accurately reflect his sex as male, as
determined by his gender identity.

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92.

Mr. Bensimon is an activist who advocates on behalf of transgender and gender

nonconforming individuals, as well as for people with disabilities. He is a founding member and
is on the board of K-STEP, and is the Kansas representative for Black Transmen, Inc. Mr.
Bensimon lives with a mild form of cerebral palsy.
93.

Mr. Bensimon is transgender. Although Mr. Bensimon was assigned female at

birth, he is male. Mr. Bensimon’s identity as a man is just as valid as that of men who were
assigned male at birth.
94.

Since a very young age, Mr. Bensimon has identified and presented in more

stereotypically masculine ways. However, it was not until he was nearly in his thirties that Mr.
Bensimon finally could verbalize and understand how he felt—that he is a man.
95.

Since then, Mr. Bensimon has taken steps to bring all aspects of his life into

conformity with his gender identity. These steps have included clinically appropriate medical
treatment, which have brought Mr. Bensimon’s body characteristics and outside appearance into
alignment with his male gender identity.
96.

The general public perceives Mr. Bensimon as the man he is.

97.

In addition to undergoing medical steps to bring his body into alignment with his

male identity, Mr. Bensimon has taken several steps to socially transition in order to align his lived
experience with his male gender identity.
98.

In 2010, Mr. Bensimon changed his name from the traditionally female name he

was given at birth to his current and traditionally male name, Luc Malik Bensimon. After obtaining
a court order legally changing his name, Mr. Bensimon updated the name and corrected the gender
marker on his Kansas driver’s license and with the Social Security Administration.

20

99.

Mr. Bensimon also updated the name listed on his Kansas birth certificate and

attempted to correct the gender marker. However, under Kansas’s Birth Certificate Policy, Mr.
Bensimon was only able to update his name on his birth certificate and was not able to correct the
gender marker.
100.

Because of the Birth Certificate Policy, Mr. Bensimon’s birth certificate still

incorrectly identifies him as female, as he is currently prohibited from correcting the gender marker
on this essential identity document. As a result, Mr. Bensimon’s birth certificate is inconsistent
with his other identification documents.
101.

Mr. Bensimon reasonably fears that possessing a birth certificate that fails to

accurately reflect his sex, consistent with his gender identity, increases the chances that he will be
subjected to invasions of privacy, prejudice, discrimination, harassment, humiliation, or even
violence.
102.

Presenting a birth certificate that incorrectly labels him as female and thus discloses

his transgender identity leaves Mr. Bensimon susceptible to discrimination and compounds the
discrimination he already experiences as a person living with a disability.
103.

Mr. Bensimon has been required to present, and has presented, his birth certificate

in a variety of contexts, including employment, and he will continue to be required to do so.
Because people typically perceive Mr. Bensimon as male, those who see his birth certificate learn
from that document that he is transgender regardless of whether he wishes to share that information
with them.
104.

In addition, Mr. Bensimon is well aware of and personally familiar with the high

incidence of harassment, discrimination, and violence directed at transgender people, particularly
transgender people of color like himself, in Kansas and elsewhere.

21

105.

Mr. Bensimon is stigmatized and harmed by Kansas’s Birth Certificate Policy. To

Mr. Bensimon the inability to have an accurate birth certificate consistent with his male gender
identity represents a “mark of differentiation” forced upon him by the State of Kansas.
106.

As a result of Kansas’s Birth Certificate Policy, Mr. Bensimon’s current Kansas

birth certificate reflects the sex he was incorrectly assigned at birth, erroneously stating that he is
female and forcing him to use an identity document that inaccurately portrays his identity.
107.

The refusal by the State of Kansas to recognize Mr. Bensimon’s male identity

impedes Mr. Bensimon’s ability to function successfully as a man in all aspects of his life.
Presenting an identity document that identifies him as female is not only distressing but also
dangerous, putting him at risk of discrimination and even violence.
108.

Moreover, Mr. Bensimon objects to the state’s ideological message that sex is

determined solely by the appearance of external genitals at the time of birth, a message that is
inconsistent with the scientific and medical understanding of sex.
109.

Mr. Bensimon needs his identity documents to be congruent with who he is. He

believes that his identity should be recognized and respected by the State of Kansas.
110.

Being denied a birth certificate that accurately reflects his sex, consistent with his

gender identity, is psychologically and emotionally harmful to Mr. Bensimon, who is faced with
the persistent reminder that Kansas does not respect him for who he is and does not recognize his
personhood.
Plaintiff Jessica Hicklin
111.

Jessica Hicklin is a 39-year-old white woman who was born in Medicine Lodge,

Kansas and is currently incarcerated in Mineral Point, Missouri. Ms. Hicklin wishes to correct her

22

Kansas birth certificate, which currently indicates that her sex is male, to accurately reflect her sex
as female, as determined by her gender identity.
112.

Ms. Hicklin is transgender. Although Ms. Hicklin was assigned male at birth, she

is female. Ms. Hicklin’s identity as a woman is just as valid as that of women who were assigned
female at birth.
113.

From an early age, Ms. Hicklin experienced a marked incongruence between her

internal sense of her own gender and the gender to which she was assigned at birth.
114.

For as long as she can remember, Ms. Hicklin has felt different and uncomfortable

in her skin. She recalls feeling most comfortable when playing dress-up by wearing traditionally
female clothing or playing with her sister’s dolls and with her female classmates.
115.

She felt uncomfortable with the contact sports she was expected to pursue,

including football and basketball. She has always felt that her anatomy was wrong and did not
understand why she did not have the same anatomy as other women.
116.

Since her childhood and teenage years, Ms. Hicklin knew that she was a woman

and identified as such.
117.

Ms. Hicklin has experienced depression and anxiety associated with not being

treated and recognized as a woman, consistent with her gender identity, and has sought treatment
for the same since being incarcerated by the Missouri Department of Corrections (“MDOC”) at
age 16. Mental health providers employed by MDOC officially diagnosed Ms. Hicklin with gender
dysphoria in 2015.
118.

In 2015, Ms. Hicklin began to socially transition in order to align her lived

experience with her gender identity.

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119.

Ms. Hicklin legally changed her name from the traditionally male name she was

given at birth to her current and traditionally female name, Jessica Hicklin. Following that change,
Ms. Hicklin updated her MDOC offender ID card as well as her social security records to reflect
her new name, consistent with her female gender identity.
120.

Ms. Hicklin also attempted to begin her medical transition in order to align her lived

experience and body characteristics with her female gender identity in 2015, but she was
unconstitutionally denied such gender-affirming, medically-necessary health care by MDOC and
MDOC’s contracted medical providers, pursuant to MDOC’s then-in-force “freeze frame” policy,
which permitted for the provision of gender-affirming health care only to those transgender
inmates who were receiving it prior to incarceration.
121.

Following years of self-advocacy and successful litigation seeking to remedy Ms.

Hicklin’s constitutional rights, the U.S. District Court for the Eastern District of Missouri held that
MDOC’s “freeze frame” policy was unconstitutional and ordered that Ms. Hicklin be provided
gender-affirming, medically-necessary health care as treatment for her gender dysphoria and that
she be provided access to gender-affirming canteen items available to all other women at MDOC
facilities.
122.

Accordingly, in February 2018, Ms. Hicklin began to medically transition in order

to align her lived experience and body characteristics with her female gender identity.
123.

In addition to having corrected most of her identity documents, in 2015, Ms.

Hicklin attempted to correct her Kansas birth certificate, which currently indicates her sex as male,
to accurately reflect her sex as female, consistent with her gender identity. However, Defendants
only permitted Ms. Hicklin to update her name on her birth certificate and, pursuant to Kansas’s
Birth Certificate Policy, refused to correct the gender marker in Ms. Hicklin’s birth certificate to

24

accurately reflect her sex as female. Specifically, in a letter dated April 9, 2015, the Chief of the
Registration and Amendment Section of the Kansas Office of Vital Statistics informed Ms. Hicklin
that, “Based on K.S.A. 65-2422c and in re Estate of Gardiner, 29 Kan. App. 2nd 92 (2001), the
Kansas Department of Health and Environment does not have the authority to amend gender,
therefore we are denying your request.”
124.

Accordingly, Ms. Hicklin’s birth certificate fails to accurately reflect who she is

and continues to incorrectly identify her as a male.
125.

As a result of Defendant’s enforcement of the Birth Certificate Policy, Ms. Hicklin

has suffered and continues to suffer harm.
126.

The continued misidentification of Ms. Hicklin as a male in her birth certificate

imposes an undue and substantial burden on her ability to live as the woman she is.
127.

For example, when Ms. Hicklin attempted to correct the gender marker in her social

security records to accurately reflect her sex as female, consistent with her gender identity, she
was (incorrectly) denied the ability to do so because her birth certificate listed her sex as male.
128.

Defendant’s refusal to provide Ms. Hicklin with a birth certificate that accurately

reflects her sex as female has also interfered with her ability to socially transition in the penological
context in which she currently lives. For example, MDOC officials and staff still refer to Ms.
Hicklin with male pronouns notwithstanding her female gender identity. Upon information and
belief, Ms. Hicklin believes that the use of male pronouns by MDOC officials and staff is based,
in part, upon the incorrect designation of her sex as male on her birth certificate. In addition, Ms.
Hicklin reasonably believes that having a birth certificate accurately reflecting her sex as female
would positively affect her rehabilitation and ability to reenter society.

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129.

Ms. Hicklin is also aware of how transgender people regularly suffer

discrimination, violence, and harassment in society, including in Kansas and Missouri, including
when they have inconsistent or inaccurate identity documents. Based in part on this awareness as
well as her own experiences with discrimination and harassment due to her transgender status, Ms.
Hicklin fears that having a birth certificate that inaccurately identifies her as male and outs her as
transgender will interfere with her ability to re-enter society following her incarceration and to live
as a woman.
130.

Defendant’s enforcement of the Birth Certificate Policy also exacerbates Ms.

Hicklin’s gender dysphoria and interferes with her treatment for such medical condition. Indeed,
Ms. Hicklin describes the effect of being forced to possess an identity document that inaccurately
identifies as male, as “being trapped by a piece of paper.”
131.

Ms. Hicklin reasonably fears that possessing a birth certificate that fails to

accurately reflect her sex, consistent with her gender identity, increases the chances that she will
be subjected to invasion of privacy, prejudice, discrimination, distress, harassment, or violence.
132.

As a result of Kansas’s Birth Certificate Policy, Ms. Hicklin’s current Kansas birth

certificate reflects the sex she was incorrectly assigned at birth, erroneously stating that she is male
and forcing her to use an identity document that inaccurately portrays her identity.
133.

Moreover, Ms. Hicklin objects to the state’s ideological message that sex is

determined solely by the appearance of external genitals at the time of birth, a message that is
inconsistent with the scientific and medical understanding of sex.
134.

Being denied a birth certificate that accurately reflects her sex, consistent with her

gender identity, is psychologically and emotionally harmful to Ms. Hicklin, who is faced with the

26

persistent reminder that Kansas does not respect her for who she is and does not recognize her
personhood.
Plaintiff C.K.
135.

C.K. is a 29-year-old white man who was born in Wichita, Kansas and currently

lives in Tulsa, Oklahoma. Plaintiff C.K. wishes to correct his Kansas birth certificate, which
currently indicates that his sex is female, to accurately reflect his sex as male, as determined by
his gender identity. C.K. earned a bachelor’s degree in social work from a university in Oklahoma.
C.K. has been working as a social worker for three years, specializing in serving the needs of youth
aging out of foster care in the Tulsa metropolitan area.
136.

C.K. is transgender. Although C.K. was assigned female at birth, he is male. C.K.’s

identity as a man is just as valid as that of men who were assigned male at birth.
137.

During his early childhood, before he began to cut his hair short and dress in

stereotypically masculine clothing, C.K. was uncomfortable being perceived as a girl.
138.

As early as the age of 8 years old, C.K. knew he was different from the other

children assigned the sex of female at birth. As a young child C.K. was always most interested in
playing with his brother over his sisters and passionately enjoyed joining his father at his place of
work, an auto body repair shop, to work on cars.
139.

By the time he was approximately 21 years old, C.K. had learned language to

identify his experience as transgender and was able to understand the reason for his discomfort
and distress growing up. C.K. is a man who had incorrectly been designated the sex of female at
birth.

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140.

Thereafter, in 2013, C.K. began to socially and medically transition in order to align

his lived experience and body characteristics with his male gender identity. Since then, C.K. has
lived as his true self—a man—in all aspects of his life.
141.

That year, C.K. was diagnosed with gender dysphoria. In consultation with his

medical and mental health professionals, C.K. began to undergo clinically appropriate medical
treatment to relieve his gender dysphoria and bring his body into alignment with his gender
identity. The steps he has taken in his transition have brought C.K.’s body characteristics and
outside appearance into alignment with his male identity.
142.

That same year, C.K. told his girlfriend at the time (now wife) that he was

transgender and she was immediately supportive. Not long after, C.K. shared his identity with his
grandparents, who initially were tentatively accepting of his identity, and who were mostly focused
on learning more about what it meant to be transgender. C.K.’s grandparents now fully recognize
him as the man that he is, including by referring to him with male pronouns, sending him
“grandson” greeting cards, and being present for C.K.’s transition-related surgery.
143.

The general public and community perceive C.K. as the man he is.

144.

Indeed, C.K.’s transgender status is not publicly known, including by most of his

co-workers.
145.

C.K. has sought to align his lived experience with his gender identity.

146.

In early 2014, C.K. legally changed his traditionally female name to a name

traditionally associated with men.
147.

Following his legal name change, C.K. sought to update the name and correct the

gender marker on his personal identity documents.

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148.

C.K. updated his name and corrected his gender marker on his driver’s license. He

also corrected his Social Security records.
149.

Following his legal name change, C.K. sought to correct both his name and the

gender marker on his birth certificate. However, as a result of Kansas’s Birth Certificate Policy,
C.K. has not been able to do so. Because of Kansas’s Birth Certificate Policy, C.K. is prohibited
from correcting the gender marker on his birth certificate. Thus, for C.K., changing his name on
his birth certificate would be futile as the birth certificate would still disclose his transgender status.
150.

Accordingly, C.K.’s current birth certificate fails to accurately reflect who he is. In

addition, as a result of Kansas’s Birth Certificate Policy, C.K.’s birth certificate and his other
identification documents are inconsistent.
151.

Having a birth certificate that incorrectly identifies C.K. as female is a significant

barrier to his ability to function successfully as a man in our society, including in seeking
employment.
152.

For example, prospective employers have asked C.K. to provide his birth certificate

to human resources after he had applied for a job. And although this did not occur with his current
employer, because his birth certificate inaccurately states that he is female, C.K. has been faced
with a paralyzing silence from human resources staff, such that he has felt obligated to explain his
transgender status to them. Such occurrences have led to his being “outed” and disclosure of his
status as a transgender man, as well as invasion of privacy, prejudice, discrimination, distress,
embarrassment, and humiliation. C.K. believes that such disclosure has also negatively impacted
his ability to secure employment.
153.

Further, being forced to show an identity document that identifies him as female

puts C.K. at significant risk of embarrassment and possible violence. It is psychologically and

29

emotionally harmful for C.K. to have a government-issued birth certificate that states incorrectly
that he is female.
154.

C.K. is aware of the high incidence of violence and harassment directed at

transgender persons in Oklahoma as well as the high rates of unemployment and housing
discrimination faced by transgender persons in Oklahoma.
155.

C.K. reasonably fears that possessing a birth certificate that fails to accurately

reflect his sex, as determined by his gender identity, increases the chances that he will be subjected
to invasion of privacy, prejudice, discrimination, distress, harassment, or violence.
156.

As a result of Kansas’s Birth Certificate Policy, C.K.’s current Kansas birth

certificate reflects the sex he was incorrectly assigned at birth erroneously stating that he is female
and forcing him to use an identity document that inaccurately portrays his identity.
157.

Moreover, C.K. objects to the state’s ideological message that sex is determined

solely by the appearance of external genitals at the time of birth, a message that is inconsistent
with the scientific and medical understanding of sex.
158.

Being denied a birth certificate that accurately reflects his sex, as determined by his

gender identity, is psychologically and emotionally harmful C.K., who is faced with the persistent
reminder that Kansas does not respect him for who he is and does not recognize his personhood.
C.K. remains in reasonable fear of what may happen as a result of having to present his birth
certificate. Kansas’s Birth Certificate Policy also subjects C.K. to potential physical harm,
particularly as a transgender man residing in Oklahoma.
Plaintiff Kansas Statewide Transgender Education Project (“K-STEP”)
159.

Plaintiff K-STEP is a non-profit organization incorporated in Kansas. It is one of

the leading organizations advocating for the equality and dignity of transgender, gender queer,

30

gender nonconforming, and gender questioning people and their families in Kansas. It has
members throughout the state and works collaboratively to secure, protect, and defend the equal
civil rights and welfare of transgender people in Kansas.
160.

K-STEP is governed by a board of directors, of which Plaintiff Luc Bensimon is a

member. K-STEP’s board and membership includes transgender persons who were born or reside
within Kansas.
161.

As part of its efforts, K-STEP engages in public education, public advocacy, and

plans events in support of the rights, equality, and dignity of transgender and gender
nonconforming people in Kansas. The promotion, achievement, and protection of the civil rights
of transgender people and their families in Kansas is a priority for K-STEP. As such, K-STEP has
called for the ability of transgender persons born in Kansas to correct the gender marker on their
birth certificates.
162.

As a result of Kansas’s Birth Certificate Policy, transgender members of K-STEP

born in Kansas have birth certificates that reflect the sex they were incorrectly assigned at birth.
163.

Transgender members of K-STEP, including Mr. Bensimon, wish to correct their

Kansas birth certificates to accurately reflect their gender identity.
164.

Being denied birth certificates that accurately reflects their sex, as determined by

their gender identity, is psychologically and emotionally harmful to transgender members of KSTEP, who are faced with the persistent reminder that the state of Kansas does not respect them
for who they are and does not recognize their personhood, and who remain in reasonable fear of
what may happen as a result of having to present their birth certificates. Kansas’s Birth Certificate
Policy also subjects transgender members of K-STEP to potential physical harm, particularly in
Kansas, where there is a high incidence of violence and discrimination against transgender people.

31

Kansas’s Birth Certificate Policy Harms Transgender People, Including Plaintiffs
165.

Kansas’s Birth Certificate Policy violates the fundamental right to privacy of the

Individual Plaintiffs and K-STEP’s transgender members by forcing the disclosure of highly
personal and sensitive information, such as their transgender status and medical condition, to
others whom the Individual Plaintiffs and transgender members of K-STEP might not trust or wish
to know such information.
166.

The forced disclosure of the transgender status of the Individual Plaintiffs and K-

STEP’s transgender members impermissibly exposes them to prejudice, discrimination, distress,
harassment, and even violence. These concerns are particularly acute for transgender people, like
Individual Plaintiffs and K-STEP’s transgender members, who live in states, such as Kansas,
Missouri, and Oklahoma, where transgender people face large amounts of violence and stigma.
For example, according to the 2015 U.S. Trans Survey, twenty-four percent (24%) of transgender
Kansans who have shown an identification document with a name or gender that did not match
their gender presentation were verbally harassed, denied benefits or service, asked to leave, or
assaulted. Similarly, one third (33%) of transgender people in neighboring Missouri and thirtysix percent (36%) of transgender people in Oklahoma who have shown an identification document
with a name or gender that did not match their gender presentation were verbally harassed, denied
benefits or service, asked to leave, or assaulted.
167.

In addition, Kansas’s Birth Certificate Policy unconstitutionally interferes with the

ability of transgender people born in Kansas to participate in civic life. For example, pursuant the
Secure and Fair Elections Act enacted in 2011, the State of Kansas requires Kansas voters to show
photographic identification when casting a vote in person. In order to obtain a non-driver
identification card, a person must present acceptable proof of identity and proof of residence.

32

Thus, transgender individuals who lack other forms of identification and desire to obtain a free
non-driver identification card must obtain a birth certificate from the Kansas Office of Vital
Statistics. As such, some transgender people born and residing in Kansas, including some
members of K-STEP, are forced to disclose their transgender status in order to exercise their
fundamental right to vote. Plaintiff Bensimon recalls the fear and concern expressed by members
of the transgender community at the prospect of being required to disclose their transgender status
in order to exercise their right to vote.
168.

Moreover, transgender people, whether or not they suffer from gender dysphoria,

are harmed when they are prevented from taking steps to align their lived experience with their
true sex, consistent with their gender identity. The bar to having identification documents, such
as a birth certificate, that reflect a transgender person’s true sex, consistent with their gender
identity, not only stigmatizes them, but also inhibits their ability to self-define and express their
identity.
169.

When the government denies recognition of a transgender person’s true sex, it is

necessarily imposing significant harms on that individual. The government’s refusal to recognize
a person’s sex not only denies a transgender person equal dignity and respect by undermining—
indeed denying—their very identity and existence, it also authorizes and invites other public and
private entities to similarly discriminate and deny recognition.
170.

The State of Kansas’s refusal to respect transgender persons’ identities on the

quintessential identity document—birth certificates—serves as a scarlet letter, a reminder that the
States of Kansas considers transgender persons to be second-class citizens, unworthy of
recognition, equal dignity, and respect. Such refusal deprives transgender persons born in Kansas,
including Plaintiffs, of their constitutional rights.

33

171.

At all times relevant hereto, Defendants’ administration and enforcement of the

Birth Certificate Policy are actions under color of state law.
172.

Plaintiffs have been, and continue to be, injured by Defendants’ conduct.
CAUSES OF ACTION
COUNT I – DEPRIVATION OF EQUAL PROTECTION
IN VIOLATION OF THE FOURTEENTH AMENDMENT
OF THE UNITED STATES CONSTITUTION
42 U.S.C. § 1983

173.

Plaintiffs incorporate by reference and reallege all of the preceding paragraphs of

this complaint as though fully set forth herein.
174.

Plaintiffs state this cause of action against all Defendants in their official capacities

for purposes of seeking declaratory and injunctive relief, and challenge Kansas’s Birth Certificate
Policy both facially and as applied to them.
175.

The Fourteenth Amendment to the United States Constitution, enforceable against

Defendants pursuant to 42 U.S.C. § 1983, provides that no state shall “deny to any person within
its jurisdiction the equal protection of the laws.”
176.

Kansas’s Birth Certificate Policy treats transgender individuals differently than

cisgender individuals who are similarly situated.
177.

Under Kansas’s Birth Certificate Policy, cisgender individuals can have birth

certificates that accurately reflect their sex and that are consistent with their gender identity, but
transgender individuals cannot have birth certificates that accurately reflect their sex and that are
consistent with their gender identity.
178.

The Birth Certificate Policy facially and intentionally discriminates against

transgender persons based on sex-related considerations. When the government lists a person’s
sex on their birth certificate, the government literally creates a classification based on sex. In the
34

case of transgender individuals, however, this classification reflects a sex contrary to their true sex,
as determined by their gender identity, causing harm as a result.
179.

Discrimination based on sex includes, but is not limited to, discrimination based on

gender, gender identity, transgender status, gender transition, and nonconformity with sex-based
or gender-based stereotypes.
180.

The Birth Certificate Policy facially and intentionally discriminates based on

transgender status by depriving transgender people who were born in Kansas—and them alone—
of a birth certificate that accurately reflects their sex and that is consistent with their gender
identity.
181.

Discrimination because a person is transgender is both discrimination based on sex,

which requires courts to apply intermediate scrutiny when evaluating the constitutionality of the
government’s discrimination, and discrimination based on transgender status, which requires
courts to apply strict or heightened scrutiny to such discrimination.
182.

Government discrimination against transgender people because of their transgender

status bears the indicia of a suspect classification requiring heightened scrutiny by the courts.
a.

Transgender people have suffered a long history of extreme discrimination

and continue to suffer such discrimination to this day.
b.

Transgender people are a discrete and insular group and lack the political

power to protect their rights through the legislative process. Transgender people have
largely been unable to secure explicit local, state, and federal protections to protect
them against discrimination, and have been and continue to be regularly targeted for
discrimination by legislation, regulations, and other government action.

35

c.

A person’s gender identity or transgender status bears no relation to a

person’s ability to contribute to society.
d.

Gender identity is a core, defining trait and is so fundamental to one’s

identity and conscience that a person cannot be required to abandon it as a condition of
equal treatment. Gender identity generally is fixed at an early age and highly resistant
to change.
183.

The Birth Certificate Policy facially and intentionally discriminates based on sex

and transgender status by depriving transgender persons, and only transgender persons, born in
Kansas of an accurate birth certificate they can use without sacrificing their privacy, health, safety,
dignity, and autonomy.
184.

By enforcing the Birth Certificate Policy, Defendants deny transgender people born

in Kansas, including Individual Plaintiffs and transgender members of K-STEP, of their right to
equal dignity, liberty, and autonomy because, unlike cisgender persons born in Kansas,
transgender persons born in Kansas are deprived of a birth certificate that accurately reflects who
they are. The Birth Certificate Policy, thus, deprives transgender people born in Kansas, including
Individual Plaintiffs and K-STEP’s transgender members, their equality and dignity by
stigmatizing them and branding them as second-class citizens, in violation of the Equal Protection
Clause of the Fourteenth Amendment.
185.

The Birth Certificate Policy is not narrowly tailored to further a compelling state

interest, substantially related to an important government interest, or even rationally related to a
legitimate governmental interest.
186.

The Birth Certificate Policy is maintained and motivated by animus towards

transgender people.

36

187.

Accordingly, Defendants are liable for their violation of Plaintiffs’ Fourteenth

Amendment rights under 42 U.S.C. § 1983 and Plaintiffs are entitled to declaratory and injunctive
relief against Defendants declaring Kansas’s Birth Certificate Policy unconstitutional and
enjoining its enforcement.
COUNT II – DEPRIVATION OF DUE PROCESS
IN VIOLATION OF THE FOURTEENTH AMENDMENT
OF THE UNITED STATES CONSTITUTION
42 U.S.C. § 1983
188.

Plaintiffs incorporate by reference and reallege paragraphs 1 through 172 of this

complaint as though fully set forth herein.
189.

Plaintiffs state this cause of action against all Defendants in their official capacities

for purposes of seeking declaratory and injunctive relief, and challenge Kansas’s Birth Certificate
Policy both facially and as applied to them.
190.

The Fourteenth Amendment to the United States Constitution, enforceable against

Defendants pursuant to 42 U.S.C. § 1983, provides that no state shall “deprive any person of life,
liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.
191.

The Due Process Clause of the Fourteenth Amendment places limitations on state

action that deprives individuals of life, liberty, or property.
192.

The substantive protections of the Due Process Clause, as well as other

constitutional provisions giving rise to a right to privacy, protect information that is highly personal
and intimate as well as information that could lead to bodily harm upon disclosure. Government
infringement of these protections requires courts to apply strict scrutiny to such government action.
193.

The fact that an individual is transgender constitutes highly personal and intimate

information. A reasonable individual would find the involuntary disclosure of one’s transgender
status to be deeply intrusive.
37

194.

The involuntary disclosure of one’s transgender status can also cause significant

harm, including placing one’s personal safety and bodily integrity in jeopardy. This harm burdens
and interferes with the ability of transgender individuals to live in a manner consistent with their
gender identity in all aspects of life, including where doing so is medically necessary.
195.

The Birth Certificate Policy violates transgender individuals’ right to privacy by

causing disclosures of their transgender status and depriving them of significant control over the
circumstances around such disclosure.
196.

There are no adequate safeguards to prevent the harm caused by the involuntary

disclosure of one’s transgender status. For example, an individual may need to disclose his or her
birth certificate directly to third parties, without any of the privacy safeguards that may exist when
the government discloses information to third parties.
197.

The substantive protections of the Due Process Clause also protect the right of every

individual to the possession and control of their own person, and to define and express their
identity. They extend to personal decisions central to individual dignity and autonomy, including
intimate decisions that define personal identity.
198.

The fundamental right to autonomy encompasses the right to define and express

one’s gender identity, including a right not to be treated in a manner contrary to one’s sex, as
defined by one’s gender identity, by the government. The right to define and express one’s gender
identity is indeed among the most intimate imaginable, relating to matters that individuals are
uniquely positioned to understand and define for themselves.
199.

When the government identifies individuals by their sex in official documents, the

constitutional protections that shelter individual and bodily autonomy, dignity, and personhood

38

prohibit the government from interfering with the right to live in accordance with one’s gender
identity.
200.

By enforcing their Birth Certificate Policy, Defendants unduly burden and

unconstitutionally interfere with the fundamental right to autonomy in one’s person and identity
of transgender individuals born in Kansas, including Plaintiffs.
201.

As a result of the Birth Certificate Policy, the Individual Plaintiffs and K-STEP’s

transgender members are deprived of a quintessential identity document that accurately reflects
who they are, thereby infringing on their fundamental liberty in self-definition and autonomy in
their person and identity.
202.

There is no compelling or even legitimate interest justifying the government’s

causing transgender people to involuntarily disclose their transgender status to third parties every
time they present their birth certificate to such individuals.
203.

There is no compelling or even legitimate interest justifying the government’s

interference with the right to autonomy in one’s person and identity of transgender individuals.
204.

Accordingly, Defendants are liable for their violation of Plaintiffs’ Fourteenth

Amendment rights under 42 U.S.C. § 1983 and Plaintiffs are entitled to declaratory and injunctive
relief against Defendants declaring Kansas’s Birth Certificate Policy unconstitutional and
enjoining its enforcement.
COUNT III – ABRIDGEMENT OF FREE SPEECH
IN VIOLATION OF THE FIRST AMENDMENT
OF THE UNITED STATES CONSTITUTION
42 U.S.C. § 1983
205.

Plaintiffs incorporate by reference and reallege paragraphs 1 through 172 of this

complaint as though fully set forth herein.

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206.

Plaintiffs state this cause of action against all Defendants for purposes of seeking

declaratory and injunctive relief, and challenge Kansas’s Birth Certificate Policy both facially and
as applied to them.
207.

The First Amendment to the United States Constitution, enforceable against

Defendants pursuant to 42 U.S.C. § 1983 and applicable to the states through the Fourteenth
Amendment, provides that a state “shall make no law . . . abridging the freedom of speech.” U.S.
Const. amend. I.
208.

The freedom of speech protected by the First Amendment is multifaceted. The First

Amendment protects an individual’s rights to speak and to refrain from speaking.
209.

The Birth Certificate Policy violates the First Amendment right of transgender

people, including the Individual Plaintiffs and K-STEP’s transgender members, to refrain from
speaking. The Birth Certificate Policy forces transgender people to identify with a sex and identity
that was incorrectly assigned to them and that conflicts with who they are.
210.

The Birth Certificate Policy also forces transgender people to disclose their

transgender status, thereby compelling them to disclose private, sensitive, and personal
information that they may not want to be publicly known or that may expose them to
discrimination, harassment, and violence.
211.

The Birth Certificate Policy further violates the First Amendment by forcing

transgender people, including the Individual Plaintiffs and K-STEP’s transgender members, to
endorse the State of Kansas’s position as to their own gender, as well as on the meaning of sex
generally, through a birth certificate they must show to others. The gender marker listed on
Plaintiffs’ birth certificates conveys the state’s ideological message that sex is determined solely
by the appearance of external reproductive organs at the time of birth and never deviates from

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that—a message that is inconsistent with the medical and scientific understanding of sex and to
which Plaintiffs strongly object.
212.

The Birth Certificate Policy violates the First Amendment right of transgender

people, including the Individual Plaintiffs and K-STEP’s transgender members, to speak by
preventing them from accurately expressing their gender.
213.

The Birth Certificate Policy is not narrowly tailored to serve any compelling

governmental interest.
214.

Accordingly, Defendants are liable for their violation of Plaintiffs’ First

Amendment rights under 42 U.S.C. § 1983 and Plaintiffs are entitled to declaratory and injunctive
relief against Defendants declaring Kansas’s Birth Certificate Policy unconstitutional and
enjoining its enforcement.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that the Court enter Judgment in their favor
and against Defendants on all claims as follows:
a.

Enter a declaratory judgment that the actions of Defendants complained of herein,

including the enforcement of Kansas’s Birth Certificate Policy, are in violation of the Equal
Protection Clause of the Fourteenth Amendment to the United States Constitution; the Due Process
Clause of the Fourteenth Amendment to the United States Constitution; and the Free Speech
Clause of the First Amendment to the United States Constitution;
b.

Permanently enjoin Defendants from enforcing the Birth Certificate Policy,

including requiring Defendants to provide birth certificates to transgender individuals that
accurately reflect their sex, consistent with their gender identity, without the inclusion of
information that would, directly or indirectly, disclose an individual’s transgender status on the
face of the birth certificate;
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c.

Award Plaintiffs costs, expenses, and reasonable attorney’s fees pursuant to 42

U.S.C. § 1988 and any other applicable laws; and
d.

Grant such other and further relief in favor of Plaintiffs as this Court deems just,

equitable, and proper.
PLACE FOR TRIAL
Pursuant to D. Kan. Local Rule 40.2, Plaintiff designates Kansas City as the place for trial.
Dated on this 15th day of October, 2018.
Respectfully submitted,
/s/ James D. Lawrence
__
James D. Lawrence (Bar No. KS #22565)
Sarah R. Holdmeyer (Bar No. KS #27584)
BRYAN CAVE LEIGHTON PAISNER LLP
One Kansas City Place
1200 Main Street, Suite 3800
Kansas City, Missouri 64105
t: [phone] | f: [phone]
[e-mail]
[e-mail]
Katherine A. Keating*
BRYAN CAVE LEIGHTON PAISNER LLP
Three Embarcadero Center, 7th Floor
San Francisco, California 94111
t: [phone] | f: [phone]
[e-mail]

/s/ Omar Gonzalez-Pagan
Omar Gonzalez-Pagan*
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
120 Wall Street, 19th Floor
New York, New York 10005
t: [phone] | f: [phone]
[e-mail]
Kara N. Ingelhart*
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
105 West Adams Street, Suite 2600
Chicago, Illinois 60603
t: [phone] | f: [phone]
[e-mail]

Attorneys for Plaintiffs
* Application for admission pro hac vice forthcoming.

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