SCOTUS Decision: Ban on "Talk" Conversion Therapy is Unconstitutional

[Analytics]

14 hours ago, webbles said:

I don't think "what's the person doing" or if it is "creepy behavior" would work.  That isn't prosecutable.  Because a locker room allows behaviors that would normally be considered creepy.  How do you define "she is hanging out in the locker room more than she needs"?  How do you prosecute that?  That's why I feel like this change is going to limit prosecution to only assault and I guess things that involve external things (like a phone).  But exhibition, voyeurism don't require those.  So they cease to be prosecutable.

Also, maybe I'm misreading you, but telling someone who was a victim of exhibitionism to "get over it" feels a little callous.

There are longstanding laws against voyeuristic conduct and sexual exhibitionism that can apply in locker rooms. The fact that someone has a right to be in the locker room does not give them a right to engage in otherwise illegal conduct once they are there. In Kansas, for example, exposing yourself to a nonconsenting person is criminal if it is done with the intent to arouse or gratify sexual desire; merely being naked while changing or showering obviously isn't enough. Kansas also criminalizes certain invasions of privacy, including surreptitiously observing someone in circumstances where that person is entitled to privacy. (Kansas Secretary of State)

Of course there are fuzzy cases. Incidental looking isn't voyeurism, and incidental nudity isn't exhibitionism. Someone might even get sexual gratification from looking or being looked at and never cross the line into provably criminal conduct. That's an inherent feature of communal locker rooms, not something created by allowing transgender people to use them. But when the line is crossed, these offenses do not suddenly become unprosecutable merely because the defendant was entitled to enter the locker room.

The larger point is that I'm criticizing a Kansas law that went into effect less than six months ago. I've looked for examples in Kansas where a victim or police said that someone was engaging in sexually inappropriate conduct in a restroom or locker room but could not be stopped or prosecuted because Kansas lacked this new sex-at-birth-based entry restriction. I haven't found one, and nobody I've asked has produced one either. No law will prevent every bad act or make every difficult case provable. The relevant policy question is whether this new law solves a demonstrated problem—and whether the problems it creates outweigh whatever benefit it provides.

[smac97]

5 hours ago, Analytics said:

I've done some research on this, and going back to 1926, a federal law that standardizes drivers license doesn't say that "sex" needs to be shown on it. Rather, it says "Every such license shall bear thereon the distinguishing number assigned to the licensee and shall contain the name, age, residence address and a brief description of the licensee for the purpose of identification, also a space for the signature of the licensee."

The 1926 provision you’re citing is from the Uniform Vehicle Code, a model act recommended to the states — not a binding federal statute that standardized driver’s licenses nationwide. Licensing has always been primarily a state function.

Two important points from that era:

1. The application for a license under the 1926 Uniform Vehicle Code explicitly required the applicant’s sex (along with name, date of birth, and address).
2. The license itself was required to contain a “brief description of the licensee for the purpose of identification.” In practice, that description routinely included sex, height, weight, eye color, and similar identifying characteristics. Sex was treated as basic identifying information from the beginning.

More relevant today is current federal law. Under the REAL ID Act regulations (6 CFR § 37.17), a driver’s license or ID card that is to be accepted by federal agencies must include the holder’s "sex" on the face of the card (as determined by the State).

You already have to radically re-define "woman" to make the ideology work.  Your proposal would now require that Kansas also re-define "sex" to include "gender identity."  

So the historical record does not support the idea that sex was ever regarded as irrelevant to identification on a driver’s license. It has been part of the identifying description for a century, and modern federal standards continue to require it. States remain free to decide how they determine and record sex, but the category itself has never been treated as optional for identification purposes.

5 hours ago, Analytics said:

That is the real purpose: to help a police officer ascertain that the person who presents the license in fact the same person who was licensed to drive.

That is certainly one purpose of the identifying information on a license: confirming that the person presenting it is the same individual who was issued the license. Height, weight, eye color, photo, and signature all serve that function.

But it is not the only purpose, and it does not explain why sex has been included from the beginning.

A “brief description for the purpose of identification” has always treated sex as a basic, observable characteristic of the person, just as height or eye color is. It is not merely a temporary password that can be changed at will. When an officer (or anyone else relying on the license) looks at the document, the sex marker is part of the overall description that helps establish who the person is.

If the only goal were photo matching, we would not need height, weight, eye color, or sex on the face of the card. Those fields exist because identification has historically included a set of stable physical descriptors. Sex has been one of them for a century, and current federal REAL ID standards continue to require it.

The question is not whether the license helps an officer confirm identity — of course it does. Rather, the question is whether sex is a legitimate part of that identifying description. History, practice, and current federal rules all treat it as one.  

5 hours ago, Analytics said:

A group of doctors never said the most important piece of information on a medical alert bracelet is the sex listed on your original birth certificate, and therefore that needs to be displayed on everyone's ID.

A group of vital records registrars never got together and said that vital record information needs to be placed on a drivers license and carried around with people. 

And you don't need a drivers license to use public restrooms.

I think those comparisons miss the point.

No one is claiming that a driver’s license = medical alert bracelet or birth certificate. The question is simpler: Is sex a legitimate piece of identifying information on a government-issued ID?

For a century it has been treated as one. The 1926 Uniform Vehicle Code required sex on the application and a “brief description” on the license itself. Modern REAL ID regulations still require sex to appear on the face of the card. Height, eye color, and date of birth are also on the license even though no committee of ophthalmologists or vital-records officials demanded it. They are there because they help describe who the person is.

You are correct that a driver’s license is not required to use a public restroom. That is beside the point. The license is an official identity document used for countless purposes — police encounters, age verification, air travel, financial transactions, and more. When the state issues an ID, it has historically included sex as part of the basic description of the holder. The debate is whether that long-standing practice should be abandoned so the marker can reflect self-identification instead of biological sex.

Saying “doctors never required it on a medical bracelet” or “you don’t need a license to use the restroom” does not answer that question. It simply changes the subject.

5 hours ago, Analytics said:

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A driver’s license or birth certificate is not intended as an expression of private identity. It is a government document that records biological sex for a range of public purposes—law enforcement, medical emergencies, vital statistics, and access to sex-separated spaces. Requiring those documents to reflect biological sex does not “out” someone in the sense of forcing private disclosure; it declines to make the state itself rewrite an official record to match an individual's subjective "gender identity."

Yes, it does. 

I respectfully disagree.  

Simply saying “Yes, it does” doesn’t engage the distinction.

A government ID that records biological sex is not “outing” someone in the ordinary sense of the word. "Outing" implies revealing private information that the person has chosen to keep hidden. Biological sex is not private information of that kind — it is an observable, documented fact that has long been recorded on official documents for public purposes (identification, law enforcement, medical response, vital statistics, and access rules for sex-separated spaces).

What would be novel is what you are proposing, namely, that the state rewrite its own records to reflect a subjective identity claim instead of the underlying biological fact. Declining to do that is not the same as forcing a private disclosure. It is the state declining to falsify its own records.

If the argument is that any official record of biological sex constitutes “outing,” then every birth certificate, every passport, and every driver’s license that has ever listed sex has been “outing” people. That is not how the term has traditionally been understood, and it collapses the difference between recording a verifiable fact and compelling the disclosure of something genuinely private.

5 hours ago, Analytics said:

Actually, it defeats the original purpose. The NYT article that was too long to read tells the story of somebody who was pulled over and the cop was quite confident the drivers license was invalid because it said "Female" with the driver was obviously "Male." The real purpose is to help cops verify that the driver that presents the license is the one licensed. It isn't a vital record. That's why it doesn't show weight at birth, name at birth, place of birth, and have a baby photo. 

Insisting that the licence contain biological sex rather than an accurate description of what the person looks like is a radical departure from the explicit original purpose. 

The original purpose was identification, that is, confirming that the person presenting the license is the same individual who was issued it. That purpose has always included a set of relatively stable physical descriptors, not a real-time description of current appearance or presentation.

Sex has been one of those descriptors from the beginning, alongside height, eye color, and (historically) weight. It was never intended to be a field that changes with clothing, hairstyle, or self-identification. The fact that a mismatch can occur when someone presents differently from their recorded sex does not mean the category itself was a mistake. It means the person’s presentation has changed relative to a longstanding identifying marker.

A driver’s license is not a vital record, but it is still an official identity document. It has never been designed to function as a continuously updated physical description. If it were, we would update height, weight, eye color, and photographs far more frequently than we do. We don’t, because the document records relatively fixed identifying characteristics rather than momentary appearance.

Requiring the sex marker to reflect biological sex is therefore not a radical departure from the original purpose. Treating sex as mutable self-identification is the departure. The older approach treated sex as a basic, observable fact about the person; the newer approach treats it as a statement of identity that the state is expected to affirm. Those are different theories of what the document is for.

5 hours ago, Analytics said:

If that were the case, then you should oppose the Kansas Law. Emily Quinn is, objectively, a male. She he has testicles and XY chromosomes. When she he was born, her his doctor incorrectly put "female" on the birth certificate, not knowing she he is really a male with androgen insensitivity syndrome.

But now in Kansas, it is against the law for Emily Quinn--a biological man--to use the men's restroom because of a mistake made by a doctor about 35 years ago. 

This is the rare developmental condition argument, and it does not do the work being asked of it.  Also, I have repeatedly acknowledged that there may be some need for exemptions to account for DSDs:

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I have spent many pages talking about "limiting principles," and Walter is a good example of why such principles are needed.  in my view, the only coherent and workable limiting principle is biological sex (with, perhaps, some narrowly-drawn exceptions for persons with DSDs).

Androgen insensitivity syndrome (AIS) is a disorder of sex development. In complete AIS, the person has XY chromosomes and testes, but the body does not respond to androgens, so the external phenotype develops along female lines. These are medical exceptions — extremely uncommon — that have always existed and have always been handled as such. They do not redefine the ordinary categories of male and female, nor do they turn sex into a matter of self-identification.

A law that records sex on the basis of biological sex is not “defeated” by the existence of rare DSDs any more than the category “height” is defeated by people with rare skeletal disorders. Hard cases and developmental anomalies are real; they are not a warrant for discarding the underlying binary or for treating ordinary males who identify as female as equivalent to people with AIS.

In the specific example you raise, someone with complete AIS is typically raised as female, has a female phenotype, and has been treated as female for practical purposes. That is a medical and social accommodation to a developmental condition. It is not the same thing as a male with typical male development who later claims a female identity. Conflating the two is the error, and apparently a deliberate one.  This isn't the first time where advocates have conflated people with DSDs with men whose sex is unambiguous but who nevertheless "identifies" as a "woman," and vice versa.

Sex-segregated spaces exist because of the material reality of the two sexes in the overwhelming majority of cases. Rare disorders of sex development require careful, individualized handling. They do not supply a general rule that sex is whatever is written on a birth certificate by mistake, nor do they require the law to treat self-identified sex as the operative category.

5 hours ago, Analytics said:

I've tried to illustrate with photos why the place where you want to draw the line is in fact defective, and why drawing the line there creates more problems than it solves. We have to weirdly agree to disagree about whether the people I've shown belong in the men's room or the women's room.

My point in this post and the last is about Constitutional scrutiny. If "sex" is defined as biological sex or the sex assigned at birth (things that aren't necessarily the same), it is a violation of privacy to put that personal medical information on a document that needs to be shown to others every time you vote or cash a check. I'm arguing that regularly requiring this disclosure to others in contexts that are totally unrelated to bathrooms is a violation of the individual's personal autonomy. That doesn't mean the state doesn't have an interest in putting birth certificate information on a driver's license, but it does mean that this need needs to withstand strict Constitutional scrutiny. 

Two separate claims are being mixed together.

First, the privacy claim: This is a new argument from you, which appears to be made up out of whole cloth, apparently so that you can fit it under a rubric of heightened constitutional scrutiny.  As it is, though, I think this argument is of the "pounding a round peg into a square hole" variety.  Sex has appeared on driver’s licenses and similar identity documents for a century. It has never been treated as sensitive medical information on the order of a diagnosis, treatment history, or private health condition. It is a basic identifying descriptor, like height or eye color. Calling it a “privacy violation” that triggers strict scrutiny simply because the document is shown in ordinary transactions rewrites the longstanding understanding of what these documents contain. Height and date of birth are also revealed every time a license is shown; no one seriously argues those disclosures require strict scrutiny.

AFAICS, courts have not treated the sex marker on a driver’s license as a disclosure of intimate medical information subject to strict scrutiny.  I think one of the many reasons I think you just made it up, but I am certainly open to correction, so feel free to point to case law where courts have "treated the sex marker on a driver’s license as a disclosure of intimate medical information subject to strict scrutiny."

I found a case that sort of touches on this: Corbitt v. Sec'y of the Ala. L. Enf't Agency, 115 F.4th 1335 (11th Cir. 2024).  A Grok summary:

Quote

Case background

Three transgender women (born male, identifying as female) challenged Alabama’s Policy Order 63. That policy allows a person to change the sex marker on an Alabama driver’s license only by submitting either:

• An amended birth certificate reflecting a changed sex designation, or
• A letter from the physician who performed gender-reassignment surgery.

The plaintiffs had not undergone (or did not want to undergo) the surgery Alabama required and sought to change their license sex markers without it. They claimed the policy violated the Equal Protection Clause, Due Process Clause, and First Amendment.

The district court ruled for the plaintiffs, held the policy unconstitutional under intermediate scrutiny, and ordered Alabama to issue them licenses with a female sex designation.

11th Circuit holding (reversed)

The Eleventh Circuit reversed.

Equal Protection

• Policy Order 63 does not impose a sex-based classification.
• It applies the same objective conditions to everyone who wants to change the sex marker.
• It does not single anyone out because of their sex or rely on sex stereotypes.
• Under the circuit’s decision in Eknes-Tucker, only rational-basis review applies.
• The policy survives rational-basis review because it rationally advances Alabama’s legitimate interest in maintaining consistent requirements for changing sex on state identity documents (driver’s licenses and birth certificates) and in providing reliable information for law-enforcement and administrative purposes.

Due Process

• The policy does not violate any right to informational privacy.
• It does not infringe a right to refuse unwanted medical care; it simply sets conditions for amending a government document.

First Amendment

• A driver’s license is government speech, not private speech.
• Requiring a particular sex marker on the license does not compel the license holder to express a message about gender identity.

Bottom line

The court upheld Alabama’s surgery-or-amended-birth-certificate requirement for changing the sex marker on a driver’s license and rejected the constitutional challenges.

I think Corbitt v. Secretary of the Alabama Law Enforcement Agency is fairly on point (though in a different circuit, and analyzing federal - not Kansas State - constitutional arguments). It upholds a state policy that ties the sex marker on a driver’s license to biological/surgical criteria (amended birth certificate or proof of sex-reassignment surgery) rather than self-identification. The court held that the policy is not a sex-based classification triggering heightened scrutiny, applies the same objective rules to everyone, and survives rational-basis review because the state has legitimate interests in consistency of identity documents and reliable information for law enforcement. It also rejected due-process and First Amendment challenges, treating the license as government speech.

This supports the position I am advancing fairly well: the sex marker is an official identifying descriptor grounded in biological sex (or a closely related medical standard), not a vehicle for affirming subjective gender identity, and requiring it does not violate equal protection, privacy, or free-speech rights in the way opponents claim.

The more ordinary framework is rational-basis or intermediate scrutiny for sex-based classifications, not strict scrutiny for the mere presence of the marker.

Second, the line-drawing claim: Rare disorders of sex development create difficult edge cases. I acknowledge this now, and have done so many times in the past.  But the old legal idiom has some relevance: "Hard cases make bad law."  Edge cases do not erase the underlying binary or make the ordinary category unworkable. Almost every legal classification has hard cases at the margin. The existence of those cases does not require the state to abandon biological sex as the operative category in favor of self-identification, nor does it convert a longstanding identity field into a constitutional privacy violation.

The state’s interest in recording sex on an identity document is the same interest it has always had: basic identification and the administration of sex-based rules where they exist. That interest does not disappear because a small number of developmental conditions require careful handling, and it does not elevate ordinary disclosure of the sex marker to a strict-scrutiny event.

5 hours ago, Analytics said:

You don't put birth length, birth weight, and baby photos on a driver's license. That is because the purpose of the drivers license isn't to summarize vital records about an individual. The purpose is to help police officers ascertain that the person presenting the license is the person who is in fact licensed to drive. 

I think your argument here overstates both points.

Yes, a driver’s license is not a full vital-records extract. It does not carry birth weight, birth length, or a baby photo. No one is claiming it should. But that does not mean every field on the license must be limited to whatever helps an officer match a face to a photo in the moment of a traffic stop.

The license has always contained a short set of relatively stable physical descriptors — height, eye color, and sex among them — precisely because identification is not limited to a single snapshot comparison. Officers use the listed information when querying databases, checking warrants, making arrests, booking people, and determining housing or search procedures. Sex has been part of that identifying description for a century, and current federal REAL ID standards still require it.

The claim that the only purpose is “ascertain that the person presenting the license is the person who is licensed to drive” is too narrow. If that were truly the sole purpose, height, eye color, and even the address could be omitted once a current photo is on the card. They are not omitted, because the document serves broader identification and administrative functions. Sex has historically been treated as one of those basic descriptors.

Insisting that the marker must instead reflect current self-identification (or appearance) is the newer claim. The traditional approach treated sex as a stable identifying characteristic, not a field to be updated whenever presentation or identity claims change. That is the distinction at issue — not whether the license should also display birth weight.

5 hours ago, Analytics said:

Again, "sex" is on drivers licenses to help an officer ascertain that the person presenting the license is the person licensed to drive. The Federal 1926 law I linked to above says it is intended to be a "description of the licensee for the purpose of identification." If we are going to meet that explicit, original purpose, an accurate description of this person is a man, not a woman.

You are treating “description of the licensee for the purpose of identification” as if it means “whatever the person currently looks like or claims to be.” That is not how the field has ever functioned.

The 1926 Uniform Vehicle Code and the long practice that followed treated sex as one of a short list of relatively stable physical descriptors (alongside height and eye color) not as a real-time appearance field. Those descriptors were chosen because they are objective and do not change with clothing, hairstyle, or self-description. An officer (or a database query) can rely on them as fixed reference points.

If the standard is simply “what does this person look like right now,” then height, weight, and even the photograph itself would need constant updating. We do not do that. We accept that the license records durable identifying characteristics rather than a continuously revised physical description.

Calling the biological-sex entry “objective data” and a self-identified marker “because-I-say-so” is therefore accurate in this context. One is a recorded biological fact that has long served identification purposes; the other is a subjective claim that the state is being asked to treat as controlling. Nothing in the original “description for identification” language requires the state to substitute the latter for the former.

Although we continue to disagree, I appreciate both the vigor and the generalized civility with which you have participated in this thread.

Thanks,

-Smac

ETA:

I just found a Kansas Court of Appeals case that may have some relevance: State ex rel. Kobach v. Harper, 65 Kan. App. 2d 680 (Kan. App. 2025).  A Grok summary:

Quote

Summary of the Kansas Court of Appeals decision (State ex rel. Kobach v. Harper, June 13, 2025)

This is the intermediate appellate decision reviewing the Shawnee County District Court’s temporary injunction that had barred the Kansas Department of Revenue (KDOR) from changing sex markers on driver’s licenses except to reflect biological sex at birth under SB 180 / K.S.A. 77-207.

Holding: The Court of Appeals reversed the temporary injunction and remanded.

Key reasons:

1. No irreparable harm shown. The Attorney General failed to establish a reasonable probability of irreparable injury. The court rejected the claim that any alleged violation of a statute automatically constitutes irreparable harm. It also found no concrete evidence that sex-marker changes had hindered law-enforcement identification, booking, housing, or warrants in the 16+ years KDOR had allowed them. Testimony from law-enforcement witnesses showed essentially zero documented problems. Speculative future harm was insufficient.
2. No substantial likelihood of success on the merits (at the preliminary stage). The court held that the Attorney General had not shown a substantial likelihood of prevailing on the statutory-interpretation question. It treated the interplay between “sex” in K.S.A. 77-207 and “gender” in the driver’s-license statutes (K.S.A. 8-240 and 8-243) as at least ambiguous. Competing plausible readings existed, including the view that KDOR could maintain biological-sex data in its internal records while allowing a different marker on the physical license, and that the Legislature had not clearly equated “gender” with the new biological-sex definition. Later 2023 and 2025 statutes treating “sex” and “gender” as distinct concepts reinforced the ambiguity. Because the likelihood-of-success showing was insufficient, the extraordinary remedy of a temporary injunction was improper.

The court expressly declined to decide the ultimate merits of the mandamus action or the constitutional arguments raised by the intervenors. Those issues remain for the district court on remand (before a new judge). Kansas Supreme Court review was later denied.

This decision does not hold that biological sex may not be required on driver’s licenses, nor does it endorse self-identification as the controlling standard. It is a narrow ruling on the standards for a temporary injunction: the Attorney General failed to make the required preliminary showings of irreparable harm and substantial likelihood of success. The underlying statutory question (whether K.S.A. 77-207 forces the sex marker on the face of the license to be biological sex at birth) remains open for a full merits determination.

In this conversation, this case may be seen as a procedural setback for the biological-sex position at the preliminary-injunction stage of a lawsuit.  I'm not sure that's much.  And it leaves the substantive policy and statutory arguments (consistency of identity documents, law-enforcement utility, privacy/safety interests in sex-separated spaces, etc.) still live. It does not resolve the deeper dispute we have been addressing about whether the marker should track biological sex or self-identified gender.

Thanks,

-Smac

Edited 7 hours ago by smac97

[smac97]

4 hours ago, Analytics said:

I certainly don't want to tell people to disregard real threats or potential assaults. While I believe people have the right to choose which restroom to use, I also think they also have a responsibility to take other people's sensibilities into consideration. I think a "reasonable person" test can be applied here, and the right to choose the most appropriate space for a urinary emergency isn't a license to assault or intimidate others.

In effect, you are obliterating sex-segregated facilities.  Anyone can go into women's bathrooms for any reason or no reason at all.  And if challenged, they can just say "I have the right to choose which restroom to use, and I have taken other people's sensibilities into consideration, and I am a 'reasonable person.'"

And since there is no functional limiting principle in your regime, they'll get away with it.

Thanks,

-Smac

[smac97]

4 hours ago, Analytics said:

There are longstanding laws against voyeuristic conduct and sexual exhibitionism that can apply in locker rooms. The fact that someone has a right to be in the locker room does not give them a right to engage in otherwise illegal conduct once they are there. In Kansas, for example, exposing yourself to a nonconsenting person is criminal if it is done with the intent to arouse or gratify sexual desire; merely being naked while changing or showering obviously isn't enough. Kansas also criminalizes certain invasions of privacy, including surreptitiously observing someone in circumstances where that person is entitled to privacy. (Kansas Secretary of State)

Of course there are fuzzy cases. Incidental looking isn't voyeurism, and incidental nudity isn't exhibitionism. Someone might even get sexual gratification from looking or being looked at and never cross the line into provably criminal conduct. That's an inherent feature of communal locker rooms, not something created by allowing transgender people to use them. But when the line is crossed, these offenses do not suddenly become unprosecutable merely because the defendant was entitled to enter the locker room.

The larger point is that I'm criticizing a Kansas law that went into effect less than six months ago. I've looked for examples in Kansas where a victim or police said that someone was engaging in sexually inappropriate conduct in a restroom or locker room but could not be stopped or prosecuted because Kansas lacked this new sex-at-birth-based entry restriction. I haven't found one, and nobody I've asked has produced one either. No law will prevent every bad act or make every difficult case provable. The relevant policy question is whether this new law solves a demonstrated problem—and whether the problems it creates outweigh whatever benefit it provides.

Two different questions are being collapsed (that seems to be happening a lot in this discussion).

First, existing criminal laws against voyeurism and exhibitionism address conduct. They do not address the prior question of who is entitled to be present, unclothed, in a space that exists precisely because of sex-based differences in privacy and vulnerability. A rule that keeps intact males out of the women’s locker room is not redundant of a statute that punishes someone only after they have already exposed themselves or surreptitiously watched others. The entry rule is preventive; the criminal statutes are reactive and require proof of specific intent or conduct that is often difficult to establish in the moment.

Second, the ongoing demands for documented, prosecuted “examples” in Kansas before the law took effect sets an unrealistic bar. Sex-separated spaces exist because the material differences between male and female bodies create predictable privacy and safety interests. Those interests do not suddenly become illegitimate the moment someone asks for a pre-law incident report. We do not require a body count before recognizing that prisons, shelters, and locker rooms have long been separated by sex for reasons that predate any particular statute.

The claim that “no law will prevent every bad act” is both true and irrelevant. The same could be said of every entry restriction, age limit, or sex-based classification.

Rather, the policy question is whether the classification is rationally related to the privacy and safety interests that justify sex-separated spaces in the first place. Recording and applying biological sex is directly related to those interests. Treating self-identification as the operative criterion is not. Existing criminal laws remain available either way; they do not make the classification itself unnecessary.

Thanks,

-Smac

[Calm]

6 hours ago, Analytics said:

Insisting that the licence contain biological sex rather than an accurate description of what the person looks like is a radical departure from the explicit original purpose. 

Excellent point, imo.  Especially with the real world example of the confusion it caused.  
 

Smac, do you have any actual examples, not just hypotheticals where having the sex on a driver’s license helped clarify anything other than someone’s biological sex?  I remember some general hypotheticals you posted, but can’t remember specific real world examples.  If you have posted them, no need to repost as extremely long posts actually make it harder for me to remember details.  I would prefer just a link to your post that has that info.

The medical info is the only one I can think of that might be helpful due to the person being unconscious and unable to supply info themselves.

I asked Chat if a biological sex marker on an id could prevent confusion for first responders in an emergency.  Blood type seems more relevant to me to have on an ID to save crucial time, so it doesn’t seem like medical necessity is a valid reason lawmakers insisted a biological sex marker be on an ID or they would be including blood type as well.  

Quote

The key distinction is between knowing relevant medical facts and knowing a sex classification.

 

For example, in an emergency, clinicians might need to know:

 

• whether the patient is pregnant or could be pregnant;
• whether the patient has a uterus, ovaries, testes, or other relevant anatomy;
• medications and hormone therapy;
• relevant laboratory history;
• kidney/liver function, weight, age, etc.;
• blood type;
• allergies and medical history.

 

 

A sex marker on an ID doesn’t reliably provide most of that information. A female sex marker doesn’t tell a paramedic whether the person is pregnant, has a uterus, is taking estrogen, has undergone a hysterectomy, or has particular anatomy. Likewise, a male marker doesn’t tell them whether the person is taking testosterone or has had particular reproductive anatomy removed.

 

And there’s an important practical point: first responders generally don’t establish treatment by looking at a driver’s license and then deciding what medical treatment is appropriate based on the sex marker. They assess the patient and obtain medical information when it matters.

 

[Calm]

2 hours ago, smac97 said:

This is a new argument from you, which appears to be made up out of whole cloth,

I am pretty sure it’s not in terms of at least links either he or others have posted.  I have recently read an article or two (can’t remember if one article contain multiple stories or each article had one) where the individual describe where every case now they share the experience of others seeing their ID now and recognizing they are transgender and has transitioned, etc.   I don’t believe I went looking for articles on this on my own lately, so it would have been here I got them.  
 

Quote

It has never been treated as sensitive medical information on the order of a diagnosis, treatment history, or private health condition

The number of transgenders who has access to medical treatment wasn’t that high in the past and just because society didn’t care at the time to protect this type of information doesn’t mean we shouldn’t.  
 

There is more reason to have my opioid use marked on my license as that could affect driving and issues with incarceration if I didn’t have access to my medication.  I still don’t want that info to be on my license as I get enough looks from doctors and other medical professionals when they learn that I take them.  If doctors have had a problem with seeing me like a drug addict (thankfully none of my long term ones treat me that way…they probably would not be long term if they did, then I really don’t want anyone else who has no clue on why or how I take them (20years at same prescribed or lower dose, tried every other med recommended and a few just suggested as possible for my disorder that my doctors offered me).

I am sharing the above as an example of why I don’t believe sensitive and/or controversial medical information should be required on a license if the more relevant medical info like blood type and drug that affect driving use isn’t.  

Edited 5 hours ago by Calm

[smac97]

4 hours ago, Calm said:

Quote

Quote

My point in this post and the last is about Constitutional scrutiny. If "sex" is defined as biological sex or the sex assigned at birth (things that aren't necessarily the same), it is a violation of privacy to put that personal medical information on a document that needs to be shown to others every time you vote or cash a check.

This is a new argument from you, which appears to be made up out of whole cloth, apparently so that you can fit it under a rubric of heightened constitutional scrutiny.

I am pretty sure it’s not in terms of at least links either he or others have posted.  

Well, I am certainly open to correction on that point.

I would be surprised if an attorney tried, with a straight face, and on a legal filing submitted to a court with his name on it, to argue that a driver's license inclusion of the individual's sex is a constitutional violation, even under the rubric of the somewhat unique and heightened "personal autonomy" jurisprudential thought arising from the Kansas State Constitution.

Consider, for example, the Corbit decision.  The attorneys in that case probably threw in every argument they could file in good faith.  Some excerpts:

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We also consider and reject Plaintiffs’ due process and First Amendment challenges. Because Policy Order 63 deals only with when and how the State will revise information on state documents, Policy Order 63 neither violates Plaintiffs’ right to informational privacy, nor infringes their right to refuse medical care like sex-change surgery, under our due process precedents.  For similar reasons, Policy Order 63 does not compel Plaintiffs to speak the government’s message about their sex or gender identity in violation of the First Amendment—after all, driver’s licenses are government speech, not private speech. 

This case originated out of Alabama, but I think the same principles and outcome will apply.

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In 2018, Darcy Corbitt, Destiny Clark, and Jane Doe4 sued the following Alabama officials in their official capacities: Hal Taylor, the Secretary of the ALEA; Charles Ward, the Director of Public Safety; Deena Pregno, the Chief of the Driver License Division; and Jeannie Eastman, a Medical Unit supervisor.  Plaintiffs challenged Policy Order 63 under 42 U.S.C. § 1983, claiming it violated the Free Speech Clause of the First Amendment, the Fourteenth Amendment’s Equal Protection Clause, and their right to informational privacy and interest in refusing unwanted medical treatment under the Fourteenth Amendment’s Due Process Clause.5 Plaintiffs alleged that Policy Order 63 “serve[s] no legitimate governmental interest” and is “directed solely at transgender people [to] discriminate against them on the basis of sex, as well as on the basis of transgender status.”

I surmise that @Analytics agrees with the foregoing claims.  They did not work in the 11th Circuit.  I don't think they would work in the 10th Circuit (Kansas is in that one).  Will it work when presented to the Kansas Supreme Court?  I guess we'll see.  Kobach might give some a glimmer of hope, but I wouldn't hang my hat on it (how's that for a mixed metaphor!).

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Next, Plaintiffs bring claims under the Fourteenth Amendment’s Due Process Clause, arguing that Policy Order 63 violates (1) their right to informational privacy and (2) their right to refuse medical care. Our precedent forecloses Plaintiffs’ first claim, and their second claim also lacks merit. We address each in turn.

The Due Process Clause prohibits “any state” from “depriv[ing] any person of life, liberty, or property, without due process of law . . . .” U.S. Const. amend. XIV, § 1. First, Plaintiffs argue that Policy Order 63 violates their right to informational privacy because it forces Plaintiffs “to disclose their transgender status and assigned sex at birth every time they display their driver’s license.” In other words, “[b]y forcing Plaintiffs to disclose private, intimate information about their transgender status, surgical status, and genitalia, [Plaintiffs argue that] the State violates [their] right to informational privacy.” Plaintiffs ground the existence of this right in Whalen v. Roe, 429 U.S. 589, 599 (1977), which acknowledged an “individual interest in avoiding disclosure of personal matters.” 

This sure sounds like what @Analytics wants to say.

How does it hold up in federal appellate court?  Not very well:

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Taking our cue from Whalen, we have also recognized an individual’s interest in avoiding disclosure of personal matters. See, e.g., James v. City of Douglas, 941 F.2d 1539, 1543–44 (11th Cir. 1991) (recognizing an individual’s privacy interest in avoiding disclosure of personal matters, including a sex tape); Plante v. Gonzalez, 575 F.2d 1119, 1133–34 (5th Cir. 1978) (using a balancing test to weigh the privacy interest of state candidates for public office in their financial records).13 But critically, we have held that there is no right to informational privacy for information contained in motor vehicle records.

This is not binding precedent on constitutional questions based on the Kansas State Constitution.  But I think the Kansas Supreme Court would be hard-pressed to utterly deviate it and come to a contradictory conclusion.

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In Collier v. ****inson, we concluded that a state did not violate the plaintiffs’ constitutional privacy rights when the Department of Highway Safety and Motor Vehicles sold the plaintiffs’ personal information provided to the Department to obtain driver’s licenses and vehicle registrations. 477 F.3d 1306, 308 (11th Cir. 2007). We explained that we were bound by a previous panel opinion, Pryor v. Reno, 171 F.3d 1281, 1288 n.10 (11th Cir. 1999), rev’d on other grounds, 528 U.S. 1111 (2000). Collier, 477 F.3d at 1308. Pryor, in turn, explained that we have “acknowledged a constitutional right to privacy . . . for intimate personal information given to a state official in confidence” but that the “information contained in motor vehicle records is not this sort of information.” Pryor, 171 F.3d at 1288 n.10 (emphasis omitted). As such, “an individual does not have a reasonable expectation that the information [contained on one’s driver’s license] is confidential. Thus, there is no constitutional right to privacy in motor vehicle record information which the [statute at issue] enforces.” Id. 

We are similarly bound by the prior panel precedent rule, and our prior precedents foreclose Plaintiffs’ informational privacy claim. See Morrison v. Amway Corp., 323 F.3d 920, 929 (11th Cir. 2003) (“A prior panel decision of this Court is binding on subsequent panels and can be overturned only by the Court sitting en banc.”). Like the plaintiffs in Collier and Pryor, the information in which Plaintiffs seek to assert a constitutional privacy interest is the information displayed on their driver’s licenses—specifically, their sex designation. Because “there is no constitutional right to privacy in motor vehicle record information” and Plaintiffs have no “reasonable expectation that . . . information [like one’s sex designation] is confidential,” Plaintiffs’ due process claim based on a right to informational privacy fails. Pryor, 171 F.3d at 1288 n.10. 

Perhaps there is other case law touching on this topic.  My search was not exhaustive.  Overall, I think this legal argument is not well-developed in the U.S.  Why it is undeveloped is open for speculation.  My guess is that "the State is constitutionally prohibited from requiring a person's biological sex to appear on his/her driver's license."  Honestly, I have a hard time taking this argument seriously in a legal sense.

But who knows?  Maybe Kansas and the 11th Circuit will end up at different places.

Two Kansas state statutes to keep in mind:

K.S.A. 77-207 ("Biological sex; application thereof to any state law or rule or regulation; application of intermediate constitutional scrutiny standard of review; important governmental objectives; collection of vital statistics.")

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(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” or “gender” 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.

(b) Laws and rules and regulations that distinguish between the sexes are subject to intermediate constitutional scrutiny. Intermediate constitutional scrutiny forbids unfair discrimination against similarly situated male and female individuals but allows the law to distinguish between the sexes where such distinctions are substantially related to important governmental objectives. Notwithstanding any provision of state law to the contrary, distinctions between the sexes with respect to athletics, prisons or other detention facilities, domestic violence shelters, rape crisis centers, locker rooms, restrooms and other areas where biology, safety or privacy are implicated that result in separate accommodations are substantially related to the important governmental objectives of protecting the health, safety and privacy of individuals in such circumstances.

(c) 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 only identify each individual who is part of the collected data set as either male or female at birth.

Subsection (b) is very likely to be unconstitutional.  But can the Kansas Supreme Court override the legislature's statutory definition in subsection (a) of "sex" and "gender" (that is, biological sex at birth)?  Not so sure about that.

See also K.S.A. 8-243 (Issuance of licenses; contents; signature; photograph, exception; fee; anatomical gift; distinguishable license for deaf and hard of hearing; distinguishable number for registered offenders; veterans; persons needing assistance with cognition.)

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(a) Upon payment of the required fee, the division shall issue to every applicant qualifying under the provisions of this act the driver’s license as applied for by the applicant. Such license shall bear the class or classes of motor vehicles that the licensee is entitled to drive, a distinguishing number assigned to the licensee, the full legal name, date of birth, gender, address of principal residence and a brief description of the licensee, either: (1) A digital color image or photograph; or (2) a laser-engraved photograph of the licensee, a facsimile of the signature of the licensee and the statement provided for in subsection (b). No driver’s license shall be valid until it has been signed by the licensee.
...
(g)

(1) Any driver’s license issued prior to July 1, 2026, that identifies the gender of the individual named on such license in a manner that is contrary to the definition of such term as defined in K.S.A. 2025 Supp. 77-207, and amendments thereto, shall be invalid.

(2) The director shall correct any driver’s license records that identify the gender of the individual named in such record in a manner that is contrary to the definition of such term as defined in K.S.A. 2025 Supp. 77-207, and amendments thereto. The director shall send written notice to each such individual notifying such individual that such license is invalid and to surrender such license to the division of vehicles. Upon the surrender of any such license, the director shall issue a new driver’s license to such individual with the correct gender identification for such individual.

There it is.  The Kansas Legislature has enacted a statute that requires "gender" to be listed on a driver's license, and has elsewhere defined "gender" as coterminous with "biological sex and birth."

Will the Kansas Supreme Court override this legislative decision?  I am skeptical.  The legislature exceeded its authority when purported to tell the Supreme Court how to analyze constitutional questions.  That was improper.  I think it would likewise be improper for the Supreme Court to tell the legislature that including an individual's biological sex in a driver's license is a constitutional violation.  That seems a few bridges too far, even for a leftist court like this one.

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It has never been treated as sensitive medical information on the order of a diagnosis, treatment history, or private health condition

The number of transgenders who has access to medical treatment wasn’t that high in the past and just because society didn’t care at the time to protect this type of information doesn’t mean we shouldn’t.

"This type of information" = biological sex?  Why should this be "protect{ed}" (by which you mean "not disclosed in the government's official documents, such as driver's licenses")?

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There is more reason to have my opioid use marked on my license as that could affect driving and issues with incarceration if I didn’t have access to my medication.  I still don’t want that info to be on my license as I get enough looks from doctors and other medical professionals when they learn that I take them.  If doctors have had a problem with seeing me like a drug addict (thankfully none of my long term ones treat me that way…they probably would not be long term if they did, then I really don’t want anyone else who has no clue on why or how I take them (20years at same prescribed or lower dose, tried every other med recommended and a few just suggested as possible for my disorder that my doctors offered me).

I am sharing the above as an example of why I don’t believe sensitive and/or controversial medical information should be required on a license if the more relevant medical info like blood type and drug that affect driving use isn’t.  

I understand the concern about sensitive information and the desire to avoid unnecessary stigma or scrutiny. But I think the opioid example actually helps clarify the distinction rather than erase it.

Opioid use is a variable medical treatment. It can change, it can be temporary or long-term, it can affect alertness and reaction time, and it is highly individual. Putting it on a driver’s license would create real practical and privacy problems: it would expose a medical regimen to every officer, employer, or clerk who sees the license, and it would not reliably tell anyone whether the person is currently impaired. That is why we don’t put medication lists on licenses.

Biological sex is not a treatment, a diagnosis, or a variable condition in the same way. It is a basic, binary, and stable physical characteristic that is already used for identification, medical triage, forensic evidence, and the design of sex-separated spaces. Unlike a medication list, it does not change with dosage, tolerance, or new prescriptions. Recording it does not disclose a person’s health history, diagnoses, or treatment decisions; it records a material fact about the body that has identification and safety relevance independent of any medical condition.

In my view, the two are not parallel. One is a private medical regimen that can affect driving performance in complex ways and carries social stigma. The other is a permanent physical characteristic that societies have long used for identification and for maintaining privacy and safety boundaries. Declining to treat them as equivalent is not a refusal to protect privacy, but rather is a recognition that not every fact about a person belongs in the same category.

I appreciate you sharing your perspective.

Thanks,

-Smac

Edited 4 minutes ago by smac97