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:

Quote

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:

Quote

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 yesterday at 07:50 PM 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 23 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:

Quote

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.

Quote

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!).

Quote

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:

Quote

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.

Quote

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.")

Quote

(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.)

Quote

(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.

Quote

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.

"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")?

Quote

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 18 hours ago by smac97

[Calm]

25 minutes ago, smac97 said:

This type of information" = biological sex? 

No, whether or not the person has transitioned

Quote

it would expose a medical regimen to every officer, employer, or clerk who sees the license

As would putting biological sex on the ID of a person who clearly looks like the opposite of that sex.  At the very least hormonal treatment.

Edited 18 hours ago by Calm

[smac97]

10 minutes ago, Calm said:

Quote

Quote

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?

No, whether or not the person has transitioned

I'm not quite following you.  The driver's license says nothing about "whether or not the person has transitioned."  It just lists the person's biological sex.

10 minutes ago, Calm said:

Quote

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.

As would putting biological sex on the ID of a person who clearly looks like the opposite of that sex.  At the very least hormonal treatment.

The comparison still doesn’t hold.

A person on long-term hormones may look more like the opposite sex, but the license is not a fashion statement or a real-time appearance certificate. It is an identity document that records stable, material facts. We already accept that a license photo may not perfectly match a person’s current hairstyle, weight, facial hair, or clothing. The photo is a snapshot; the data fields (name, date of birth, sex, height, etc.) are meant to be consistent identifiers that do not shift with presentation or medical treatment.

Hormonal treatment does not change the underlying sex recorded at birth, any more than a beard, mastectomy, or heavy makeup does. If the argument is that the marker should be updated whenever appearance changes, then the document stops functioning as a reliable record and becomes a reflection of current self-presentation. That is a different kind of document.

The opioid analogy remains useful here: we do not put “currently appears sedated” or “looks like someone who might be on opioids” on a license. We record facts that are useful for identification and that do not require constant subjective updating. Biological sex is one of those facts. Appearance is not.

Thanks,

-Smac

[Calm]

Somethings had been wiggling in my brain for sometime on this and I think I may have pinpointed what it is.

You keep saying in response to pictures where the person has not only fully transitioned (except perhaps for bottom surgery, with clothes on, one can’t determine that) but truly looks like the opposite of their biological sex…the cases where I believe they should be allowed to use the restrooms of their appearance, not their biology to avoid biological women feeling unsafe because an apparent male had invaded women’s only spaces, that edge cases should not decide law.

But why would we need to indicate biological sex on IDs except for those edge cases? Those are the cases where the IDs provide information one’s eyes do not.

Serious question, not a gotcha as I am trying to understand the reasoning.

Edited 17 hours ago by Calm

[smac97]

43 minutes ago, Calm said:

Somethings had been wiggling in my brain for sometime on this and I think I may have pinpointed what it is.

You keep saying in response to pictures where the person has not only fully transitioned (except perhaps for bottom surgery, with clothes on, one can’t determine that) but truly looks like the opposite of their biological sex…the cases where I believe they should be allowed to use the restrooms of their appearance, not their biology to avoid biological women feeling unsafe because an apparent male had invaded women’s only spaces, that edge cases should not decide law.

But why would we need to indicate biological sex on IDs except for those edge cases? Those are the cases where the IDs provide information one’s eyes do not.

Serious question, not a gotcha as I am trying to understand the reasoning.

That’s a fair question, and it helps separate two different issues.

Bathroom and changing-room policies are about access to sex-separated spaces. In those settings, the practical problem is overwhelmingly created by males who retain male physical advantages or male patterns of behavior, not by the tiny number of people who “pass” so completely that no one can tell. Edge cases do not justify rewriting the rule that the spaces are organized by sex. The rule exists to protect the privacy, safety, and dignity of the female sex class as a whole; it is not contingent on every single male being visually obvious.

An identity document serves a different purpose. It is a durable record of stable identifying characteristics for use by government agencies, law enforcement, medical providers, and others who need reliable information when appearance is ambiguous, when the person is unconscious, when records must be matched across time, or when visual inspection is impossible or insufficient. The fact that most people are visually congruent with their sex does not make the recorded fact useless. Height, date of birth, and eye color are also listed even though they are usually obvious; we still record them because documents are meant to be consistent and independent of momentary appearance.

In short:

• Sex-separated spaces are organized by sex because sex itself is the relevant category for privacy and safety. The existence of people who pass does not erase that category.
• Sex is recorded on IDs because identity documents need stable, non-appearance-based data. The fact that the marker is most useful in ambiguous cases does not mean it is only justified by those cases.

The two contexts answer different questions. One is about who may enter a space reserved for one sex. The other is about what facts an identity document should reliably contain. Treating them as the same argument confuses the purpose of the rule with the purpose of the record.

Thanks,

-Smac

[Analytics]

17 hours ago, smac97 said:

In effect, you are obliterating sex-segregated facilities.  Anyone can go into women's bathrooms for any reason or no reason at all.

That is the opposite of what I said. I said people should only go into the bathroom that is most appropriate.

[smac97]

3 hours ago, Analytics said:

Quote

Quote

I believe people have the right to choose which restroom to use...

In effect, you are obliterating sex-segregated facilities.  Anyone can go into women's bathrooms for any reason or no reason at all.

That is the opposite of what I said. I said people should only go into the bathroom that is most appropriate.

I do not understand your point.  Your position is that anyone can go into any bathroom ("people have the right to choose which restroom to use").  Ipso facto, no segregation by sex. 

"{P}eople have the right to choose which restroom to use" = "{N}o segregation by sex."

Several months ago I attended a hearing at which the attorneys were arguing about the enforceability of a settlement agreement.  In Utah, an unsigned settlement agreement can be enforceable where there is clear evidence the parties assented to it.  In this case, the settlement agreement called for a large initial payment of $20K starting in a given month, followed by monthly payments of $1,000.  The defendant (the niece of the plaintiff) did not dispute that she had seen the agreement and that she had made the $20K payment followed by 8 monthly payments of $1,000, and then she stopped.  With this in mind, I watched the following exchange between the judge and the defendant's attorney (more or less) :

• Judge: So counsel, we have a settlement agreement that calls for an initial payment of $20,000, followed by monthly payments of $1,000.  And your client does not dispute that she made a payment of $20,000, followed by eight monthly payments of $1,000.  Is that correct?
• Attorney: Yes.
• Judge: But your client is saying that she did not sign the settlement agreement, so it's not enforceable, even though case law in Utah is very clear that unsigned settlement agreements are enforceable where there is a course of conduct indicating acceptance of the agreement?
• Attorney: That's correct.  The agreement is unenforceable because although she gave that money to the plaintiff, she did not do so based on the settlement agreement.
• Judge: Then why did she make those payments?
• Attorney: They weren't "payments."  She gave her aunt the money out of the goodness of her heart because they are family.
• Judge: Counsel, she gave money to hear aunt "out of the goodness of her heart," and those payments, or whatever you are calling them, just happened to be in amounts and timing which perfectly match the terms of the settlement agreement?  That is your argument?
• Attorney: Yes.
• Judge: Counsel, are you sure you want to advance that argument?
• Attorney: Yes.
• Judge: How do you account for the match between the agreements payment requirements and your client's conduct?
• Attorney: It's just a coincidence, your honor.  The settlement agreement is unenforceable.
• Judge: Okay.  Anything else?
• Attorney: No.
• Judge: I'm ready to rule...

As you can imagine, I won the case.

I spoke with the attorney at some length after the hearing.  He was pretty sheepish, and acknowledged that he fully anticipated losing, but that he had to make that argument because it was the only one available to him.

Except that's not the only thing he could have done.  What he could and should have done was comply with Rule 3-3.3 of the Utah Rules of Professional Conduct ("Candor toward the tribunal").  From a "Comment" on that rule:

Quote

This Rule sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process. A lawyer acting as an advocate in an adjudicative proceeding has an obligation to present the client’s case with persuasive force. Performance of that duty while maintaining confidences of the client, however, is qualified by the advocate’s duty of candor to the tribunal. Consequently, although a lawyer in an adversary proceeding is not required to present an impartial exposition of the law or to vouch for the evidence submitted in a cause, the lawyer must not allow the tribunal to be misled by false statements of law or fact or evidence that the lawyer knows to be false.

Of course, this rule has no real application to an informal discussion on a message board.  But "candor" was that that lawyer was really missing.  He was focused on presenting hic client's case "with persuasive force," to the effective exclusion of his corollary obligation to be candid with the judge.

Here, you are advocating a particular policy regarding sex-segregated bathrooms, and that policy, in your own words, is that "people have the right to choose which restroom to use."  The practical effect and consequence of this policy will be the obliteration of sex-segregated bathrooms (and, apparently, all other sex-segregated spaces as well).  You are denying this practical reality, but until and unless you elaborate on how it does not result in obliteration, I am reminded of the above attorney.  He did his client no favors by doggedly sticking to an argument that was facially absurd and other-than-candid.

What the attorney could and should have done is been candid with the judge.  Yes, it would have injured his client's case, but I think he injured it worse by advancing a specious argument and refusing to be candid about it.  This sort of thing aggravates judges a lot.  A lot.  The courts are, after all, supposed to be a venue in which the parties, using rules of procedure and evidence, survey and determine the facts of the case and then ascertain how the law applies to those facts.

Demonstrating "candor toward the tribunal" means that his client would lose, but at least the loss would have been honest.  By advancing a specious argument, the loss came not only to the detriment of the attorney (whose reputation, at least with that judge, took a beating that day), and also the client (the judge did not do any sort of "split the baby" thing in his ruling, as is often the case, and rather gave my client everything she had asked for, including substantial interest amounts that were a maybe-yes-maybe-no sort of thing).

I am open to hearing what you have to say about your perspective.  I hope you will lay out your reasoning, with candor, as to why your policy preference would not result in the obliteration of sex-segregated bathrooms (as opposed to a "biological sex"-based policy, which preserves them).

Thanks,

-Smac

Edited 5 hours ago by smac97

[webbles]

22 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.

How is this prosecutable?  You said that we would still be able to prosecute exhibitionism, voyerism, etc.  That's my issue.  How do we protect victims?  If we could trust everyone to be reasonable, we wouldn't need criminal laws.  But we can't trust everyone to be reasonable.

Edited 7 hours ago by webbles

[SeekingUnderstanding]

1 hour ago, webbles said:

How is this prosecutable?  You said that we would still be able to prosecute exhibitionism, voyerism, etc.  That's my issue.  How do we protect victims?  If we could trust everyone to be reasonable, we wouldn't need criminal laws.  But we can't trust everyone to be reasonable.

I’m curious why this is different than other difficult to prove cases like stalking, harassment, and many cases of rape including marital rape. Cases where there exists a great deal of plausible deniability?

[Analytics]

19 hours ago, smac97 said:

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....

Let's look at a recent, real-world example. Three months ago, Kris Ripper was pulled over in Johnson County Kansas for not turning on her headlights when it started to rain. The officer told her her drivers license was invalid because it contained false information: the officer explained that Kris was observably, obviously a woman, but that her DL said she was Male. That was false information, making the drivers license invalid and making her guilty of driving without a valid license.

She explained to the officer the private information that she would rather keep hidden: despite how she looked to everyone around her, her birth certificate said "Male" on it. One would think this private information is irrelevant to cashing a check, voting, or receiving a traffic citation. But the law requires that she disclose it whenever she needs to present ID. 

After Kris Ripper explained to the officer the law and what was on her birth certificate and why her license said she was a male, the cop still didn't believe she was a male, and cited her for driving with an invalid license.  

https://www.kwch.com/2026/07/01/transgender-kansan-speaks-out-after-facing-charge-amid-license-law-confusion/

19 hours ago, smac97 said:

The original purpose was identification, that is, confirming that the person presenting the license is the same individual who was issued it.

Thank you! That is exactly my point. That is why the description on your driver license is supposed to describe what you look like.

I had my KS license renewed a few weeks ago. They took a new photo as they do every five years, because people's appearance changes over time. They asked me if my weight had changed, because that changes too. Over the long haul, people's height changes and when it does, that information is updated. That's the point: in order to facilitate an officer to confirm the person presenting the license is the same person who was issued it, it should match what the person looks like. 

The new Kansas law that you say you support goes against this time-honored purpose. Rather than describing the individual with the license, it now reflects something on an old vital record, even if that record is objectively wrong (e.g. Emily Quinn), and even if that results in an inaccurate description of the appearance of the holder (e.g. Kris Reaper).

19 hours ago, smac97 said:

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:

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.

Two points.

First, the Kansas law you support does not make any allowances for any exceptions, full stop. That is why I think it is a bad law. I agree that historically our society has made exceptions for this kind of thing, but right-wing Christians want a black-and-white world without exceptions, thus are radically changing the laws to take away the ability of exceptions of any kind to be handled as exceptions.

Second, I don't understand your position. Emily Quinn, is objectively a biological male. You are now telling me that in some situations such as "his", we can perhaps put objectively false information on a driver license? Are you also going to tell me that we should sometimes let objectively biological males such as Emily Quinn use the female restroom? Doesn't that defeat the entire purpose of having sex-distinct restrooms? You've been emphasizing forever that sex is strictly binary, and that an extremely clear and sharp line must be drawn right there, no exceptions.

But now you are agreeing with the liberals that there are exceptions?

If this were the Church, the First Presidency would reserve the authority to make exceptions. But in the real world, who would you grant with the authority to allow males to have female driver licenses and go into female spaces?

And if you are willing to allow Emily Quinn, who is objectively a male, to use the female restroom, would you be willing to consider allowing Marquise Vilsón (below) to use the men's room, or do you think "she" must be required to use the female restroom because "she" is objectively a woman? You seem to be conceding that for purposes of choosing restrooms or identifying yourself on a driver license there are exceptions to the correlation between those things and the male/female biological binary.

If you really are conceding that there are exceptions, where and how do you draw the line?

p.s. In today's news, I presume that you're happy that Kansas has a "Compliance Crew" to make sure that men don't go into women's restrooms:

https://kansaspublicradio.org/statehouse-news/2026-08-20/transgender-men-in-kansas-compliance-crew-use-womens-bathrooms-to-protest-state-law

 

[smac97]

3 hours ago, webbles said:

Quote

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.

How is this prosecutable? 

With purely reactive and after-the-fact measures.  No preventive mechanism at all.  

There is no limiting principle here.  Per @Analytics' preference, anyone can go into any women's bathroom, and do so entirely legally.  This includes not just the men who "pass" as women, but also the bad actors.  Both law enforcement and any persons in the bathroom have no recourse to prevent misconduct, but can instead only react after it has happened.

In contrast, a sex-segregated bathroom policy does have preventive measures, and effective ones (not totally effective, but no measure is).

If there is a limiting principle whereby some men can legally enter into women's bathrooms and others cannot, I would like to see it.  We've had a lot of pages of discussion, with nothing so far.

3 hours ago, webbles said:

You said that we would still be able to prosecute exhibitionism, voyerism, etc.  That's my issue.  How do we protect victims? 

Reactively.  Wait until after women and girls are victimized by an opportunistic bad actor who but for Analytics' policy would have broken the law the minute he entered into the bathroom, and could therefore have been summarily and immediately excluded from it on that basis.

3 hours ago, webbles said:

If we could trust everyone to be reasonable, we wouldn't need criminal laws.  But we can't trust everyone to be reasonable.

We can trust a law that has prophylactic effect, such as categorically excluding men from women's bathrooms.

Again, if there is a limiting principle whereby some men can legally enter into women's bathrooms and others cannot, I would like to see it. 

Thanks,

-Smac

Edited 3 hours ago by smac97

[Analytics]

5 hours ago, smac97 said:

I do not understand your point.  Your position is that anyone can go into any bathroom ("people have the right to choose which restroom to use").  Ipso facto, no segregation by sex. 

"{P}eople have the right to choose which restroom to use" = "{N}o segregation by sex."

Several months ago I attended a hearing at which the attorneys were arguing about the enforceability of a settlement agreement.  In Utah, an unsigned settlement agreement can be enforceable where there is clear evidence the parties assented to it.  In this case, the settlement agreement called for a large initial payment of $20K starting in a given month, followed by monthly payments of $1,000.  The defendant (the niece of the plaintiff) did not dispute that she had seen the agreement and that she had made the $20K payment followed by 8 monthly payments of $1,000, and then she stopped.  With this in mind, I watched the following exchange between the judge and the defendant's attorney (more or less) :

• Judge: So counsel, we have a settlement agreement that calls for an initial payment of $20,000, followed by monthly payments of $1,000.  And your client does not dispute that she made a payment of $20,000, followed by eight monthly payments of $1,000.  Is that correct?
• Attorney: Yes.
• Judge: But your client is saying that she did not sign the settlement agreement, so it's not enforceable, even though case law in Utah is very clear that unsigned settlement agreements are enforceable where there is a course of conduct indicating acceptance of the agreement?
• Attorney: That's correct.  The agreement is unenforceable because although she gave that money to the plaintiff, she did not do so based on the settlement agreement.
• Judge: Then why did she make those payments?
• Attorney: They weren't "payments."  She gave her aunt the money out of the goodness of her heart because they are family.
• Judge: Counsel, she gave money to hear aunt "out of the goodness of her heart," and those payments, or whatever you are calling them, just happened to be in amounts and timing which perfectly match the terms of the settlement agreement?  That is your argument?
• Attorney: Yes.
• Judge: Counsel, are you sure you want to advance that argument?
• Attorney: Yes.
• Judge: How do you account for the match between the agreements payment requirements and your client's conduct?
• Attorney: It's just a coincidence, your honor.  The settlement agreement is unenforceable.
• Judge: Okay.  Anything else?
• Attorney: No.
• Judge: I'm ready to rule...

As you can imagine, I won the case.

I spoke with the attorney at some length after the hearing.  He was pretty sheepish, and acknowledged that he fully anticipated losing, but that he had to make that argument because it was the only one available to him.

Except that's not the only thing he could have done.  What he could and should have done was comply with Rule 3-3.3 of the Utah Rules of Professional Conduct ("Candor toward the tribunal").  From a "Comment" on that rule:

Of course, this rule has no real application to an informal discussion on a message board.  But "candor" was that that lawyer was really missing.  He was focused on presenting hic client's case "with persuasive force," to the effective exclusion of his corollary obligation to be candid with the judge.

Here, you are advocating a particular policy regarding sex-segregated bathrooms, and that policy, in your own words, is that "people have the right to choose which restroom to use."  The practical effect and consequence of this policy will be the obliteration of sex-segregated bathrooms (and, apparently, all other sex-segregated spaces as well).  You are denying this practical reality, but until and unless you elaborate on how it does not result in obliteration, I am reminded of the above attorney.  He did his client no favors by doggedly sticking to an argument that was facially absurd and other-than-candid.

What the attorney could and should have done is been candid with the judge.  Yes, it would have injured his client's case, but I think he injured it worse by advancing a specious argument and refusing to be candid about it.  This sort of thing aggravates judges a lot.  A lot.  The courts are, after all, supposed to be a venue in which the parties, using rules of procedure and evidence, survey and determine the facts of the case and then ascertain how the law applies to those facts.

Demonstrating "candor toward the tribunal" means that his client would lose, but at least the loss would have been honest.  By advancing a specious argument, the loss came not only to the detriment of the attorney (whose reputation, at least with that judge, took a beating that day), and also the client (the judge did not do any sort of "split the baby" thing in his ruling, as is often the case, and rather gave my client everything she had asked for, including substantial interest amounts that were a maybe-yes-maybe-no sort of thing).

I am open to hearing what you have to say about your perspective.  I hope you will lay out your reasoning, with candor, as to why your policy preference would not result in the obliteration of sex-segregated bathrooms (as opposed to a "biological sex"-based policy, which preserves them).

Thanks,

-Smac

From its founding in 1861 until February of 2026, Kansas had exactly the laissez faire policy that I propose. I've looked for evidence that it wasn't working. I came up empty. I asked you to provide evidence that it wasn't working. You couldn't provide anything, either.

Here is my reasoning, with candor. My "policy preference would not result in the obliteration of sex-segregated bathrooms" because my policy preferences worked perfectly fine from 1861 until 2026. 

With candor, why do you think sex-segregated bathrooms survived in Kansas until February of 2026 without laws that said who can and cannot use various restrooms?

[smac97]

11 minutes ago, Analytics said:

Let's look at a recent, real-world example. Three months ago, Kris Ripper was pulled over in Johnson County Kansas for not turning on her headlights when it started to rain. The officer told her her drivers license was invalid because it contained false information: the officer explained that Kris was observably, obviously a woman, but that her DL said she was Male. That was false information, making the drivers license invalid and making her guilty of driving without a valid license.

She explained to the officer the private information that she would rather keep hidden: despite how she looked to everyone around her, her birth certificate said "Male" on it. One would think this private information is irrelevant to cashing a check, voting, or receiving a traffic citation. But the law requires that she disclose it whenever she needs to present ID. 

After Kris Ripper explained to the officer the law and what was on her birth certificate and why her license said she was a male, the cop still didn't believe she was a male, and cited her for driving with an invalid license.  

https://www.kwch.com/2026/07/01/transgender-kansan-speaks-out-after-facing-charge-amid-license-law-confusion/

The Kris Ripper case does not show that recording biological sex on a government ID is “outing.”  Again, “outing” means disclosing private information that a person has deliberately chosen to keep hidden—typically something like sexual orientation or gender identity that is not otherwise apparent or documented. Biological sex is, under the law, not that kind of information, even if this or that individual feels otherwise. It is a material, observable, and already-documented fact recorded on birth certificates, medical records, and (in Kansas under the new law) driver’s licenses. Requiring an ID to state that fact is not the same as forcing someone to reveal a concealed personal secret.

In the actual incident:

• Ripper’s license correctly stated Male, which matched the birth certificate and complied with Kansas law requiring the marker to reflect biological sex.
• The officer’s initial confusion arose from the mismatch between appearance and the marker on the license. That is a predictable consequence of presenting in a way that diverges from the recorded sex; it is not evidence that the recorded sex itself is “private.”  Some months ago I was working on an a protective order (against a tenant who had threatened the property manager, my client).  The police called me and said they were having difficulty identifying the guy (in the housing complex).  They had his DL photo, but it turns out the guy had, since taking the photo on this DL, gained weight, shaved his head, and grew a beard.  The police's initial difficulty was immediately resolved.  They found the guy a few minutes later in the common area.  This is not an uncommon thing.
• According to Ripper’s own account, the officer ultimately returned the license and issued only a verbal warning at the scene. The later charge appears to have been an administrative error or processing failure that the prosecutor dismissed once the facts were clarified. A bureaucratic mistake does not redefine the nature of the information on the ID.

The claim that the birth-certificate sex is “private information [Ripper] would rather keep hidden” inverts the categories. The state is not requiring disclosure of internal identity, medical history, or preferred presentation. It is requiring the license to state a factual attribute that the government already maintains for identification purposes—exactly as it requires name, date of birth, and photograph. Those attributes are also “disclosed” every time the ID is presented; we do not treat them as outing.

If the objection is that the law creates friction when appearance and documented sex diverge, that is a different (and debatable) policy argument. It does not convert the recording of biological sex into “outing” in the ordinary sense of the word.

11 minutes ago, Analytics said:

Quote

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.

Thank you! That is exactly my point. That is why the description on your driver license is supposed to describe what you look like.

Hmm.  You seem to overlook the point I was making.

11 minutes ago, Analytics said:

I had my KS license renewed a few weeks ago. They took a new photo as they do every five years, because people's appearance changes over time. They asked me if my weight had changed, because that changes too. Over the long haul, people's height changes and when it does, that information is updated. That's the point: in order to facilitate an officer to confirm the person presenting the license is the same person who was issued it, it should match what the person looks like. 

The new Kansas law that you say you support goes against this time-honored purpose. Rather than describing the individual with the license, it now reflects something on an old vital record, even if that record is objectively wrong (e.g. Emily Quinn), and even if that results in an inaccurate description of the appearance of the holder (e.g. Kris Reaper).

The comparison doesn’t hold.  A driver’s license contains two different kinds of information.

Appearance fields (photo, height, weight, eye/hair color) exist to help an officer confirm that the person standing in front of them is the same person the license was issued to. Those fields are updated because appearance changes. That is their sole purpose.

Sex is not an appearance field. It has never functioned primarily as a current visual description. It records a stable biological classification—rooted in reproductive anatomy and development—that serves identification and medical and legal and statistical and security purposes across many systems. It is not analogous to “has this person’s weight changed since the last renewal?”

Updating a photo every few years does not convert the sex marker into a field whose job is to match current presentation. If that were the rule, the license would also need to track breast development, facial hair, voice pitch, or any other secondary sex characteristic that can be altered. No jurisdiction treats the sex marker that way, and for good reason: it would cease to function as a reliable classifier.

On the examples you cite:

• In the ordinary transgender case (Kris Ripper), the “M” marker is not an “inaccurate description of appearance.” It accurately records biological sex. The visual mismatch is the result of presentation or medical intervention, not an error in the vital record.
• Emily Quinn has Complete Androgen Insensitivity Syndrome (XY chromosomes, internal testes, female external phenotype). That is a genuine disorder of sex development. Such cases are rare, medically complex, and do not turn the binary classification system into something “objectively wrong” for the 99.98%+ of people whose sex development is unambiguous. Treating a rare developmental anomaly as proof that the sex marker on everyone’s license should track self-perception or current appearance confuses the exception with the rule.

The Kansas law requires the license to state biological sex. That is consistent with the marker’s historical and practical function. It is not a rejection of the idea that a photo should look like the holder. Those are different data fields doing different jobs.

11 minutes ago, Analytics said:

Two points.

First, the Kansas law you support does not make any allowances for any exceptions, full stop.  That is why I think it is a bad law.

And your policy preference is to abolish women's spaces, full stop.  I think that is a bad idea.

Also, if the Kansas Legislature were to amend the statute to provide some limited exceptions pertaining to persons with DSDs, you would still find it a bad law, right?  So the presence or absence of exceptions does not seem to be determinative.  The law is bad because you want men to have the legal right to enter women's bathrooms, changing rooms, and so on.  Anything other than that is, in your view, "a bad law."  Am I correct on this surmise?

11 minutes ago, Analytics said:

I agree that historically our society has made exceptions for this kind of thing, but right-wing Christians want a black-and-white world without exceptions, thus are radically changing the laws to take away the ability of exceptions of any kind to be handled as exceptions.

Second, I don't understand your position. Emily Quinn, is objectively a biological male.  You are now telling me that in some situations such as "his", we can perhaps put objectively false information on a driver license? Are you also going to tell me that we should sometimes let objectively biological males such as Emily Quinn use the female restroom? Doesn't that defeat the entire purpose of having sex-distinct restrooms? You've been emphasizing forever that sex is strictly binary, and that an extremely clear and sharp line must be drawn right there, no exceptions.

But now you are agreeing with the liberals that there are exceptions?

No. Recognizing that a tiny number of people have disorders of sex development is not the same as abandoning the binary or adopting the liberal position.

Sex in humans is binary: male or female, defined by the type of gamete the body is organized to produce (sperm or ova). Disorders of sex development (DSDs) such as Complete Androgen Insensitivity Syndrome are medical conditions in which development is disrupted. They are not a third sex, a spectrum that dissolves the categories, or proof that the categories are optional. They are exceptions within the binary, not exceptions to it.

As I understand it, Emily Quinn has CAIS: XY chromosomes and testes, but the body cannot respond to androgens, so external development followed the female pathway.  Per this article, this condition has a prevalence of of 2:100,000 to 5:100,000.  In other words, it is an exceedingly rare condition, one which which makes the person biologically male with a specific developmental disorder, not “objectively female” and not a third category. The existence of such conditions does not mean sex is a spectrum any more than the existence of people born without legs means humans are not bipedal.

On the driver’s license point: the sex marker records biological sex, not current appearance or self-identification. In the overwhelming majority of cases this is straightforward. Rare DSDs create edge cases that medical systems and governments have historically handled by looking at the full developmental picture (chromosomes, gonads, phenotype). That is not “putting objectively false information” on the license; it is dealing with a medical anomaly. It does not require, and does not justify, letting ordinary males who identify as female - and I think you must concede that this is the group for which you are really advocating in terms of putting them in women's bathrooms - change the marker.

On restrooms: sex-segregated spaces exist because of the average physical differences and privacy/safety interests between the two sexes. A person with CAIS who has a fully female external phenotype and has been raised and lived as female is not the same situation as a typical male who identifies as a woman. Policy can (and long has) treated genuine DSDs as the rare medical exceptions they are without opening the category to anyone who claims an identity. Conflating the two is the actual radical move.

The position is not “no exceptions ever” or “exceptions for anyone who wants one.” It is that sex is binary, DSDs are rare developmental disorders that do not erase the binary, and policy should be grounded in that reality rather than in the claim that sex itself is a spectrum or a feeling.

11 minutes ago, Analytics said:

If this were the Church, the First Presidency would reserve the authority to make exceptions. But in the real world, who would you grant with the authority to allow males to have female driver licenses and go into female spaces?

You’re treating this as if the question is “who gets to hand out special exemptions so males can be treated as female.” I think that is the wrong framing.

Genuine DSDs are medical facts, not privileges granted by some authority. A person is not male becA person with Complete Androgen Insensitivity Syndrome has a documented developmental condition: XY chromosomes and testes, but a body that did not respond to androgens and therefore developed a female external phenotype. Doctors diagnose it; it is not a policy preference or an identity claim. We already handle rare medical anomalies through medicine and existing legal processes without needing a central “exception committee.”

That is altogether different from the current demand that any male who identifies as a woman must be allowed to change the sex marker on a driver’s license or enter female spaces. One is a documented developmental disorder. The other is an ideological claim that sex is subordinate to identity. Conflating the two is the error.

So the answer is not “we need a First Presidency equivalent to approve males into female categories.” The answer is that sex remains the classification, rare medical DSDs are handled as the (exceedingly) rare medical exceptions they are, and ordinary males do not get reclassified as female by declaration, feeling, or bureaucratic permission. No new authority is required to invent that reclassification, and none should be created.

11 minutes ago, Analytics said:

And if you are willing to allow Emily Quinn, who is objectively a male, to use the female restroom,

A male who has a diagnosed DSD.  

11 minutes ago, Analytics said:

would you be willing to consider allowing Marquise Vilsón (below) to use the men's room, or do you think "she" must be required to use the female restroom because "she" is objectively a woman?

You seem to be conceding that for purposes of choosing restrooms or identifying yourself on a driver license there are exceptions to the correlation between those things and the male/female biological binary.

You keep asking questions to which you already know the answer.  Marquise Vilsón is a biological woman who has taken cosmetic, medical and sartorial measures to deliberately appear and "identify" as a man.  

Absent some viable limiting principle that avoid the obliteration of sex-segregated spaces, yes, she would need to use the women's bathroom.

 

I am not conceding that sex-based rules have open-ended exceptions for subjective "self identity."

The teenage boy I met at Encircle House "identifies" as a dog, but he's not really a dog, and our society is not (yet) ready to actually treat him like one.  When he gets sick, his parents don't take him to the vet.  He doesn't eat dog foot or sleep outside or relief himself on the lawn.  And just as a teenage boy does not "become" a species he is not by "identifying" as one, a man does not "become" a woman by identifying as one.

Emily Quinn has a documented disorder of sex development (CAIS): XY chromosomes and testes, but a body that could not respond to androgens and therefore developed a female external phenotype. That is a medical condition that produced a female appearance and secondary sex characteristics. It is not a claim that sex is a feeling or that males become female by declaration.

Marquise Vilsón is a biological female who identifies as male and presents as such. That is an identity claim layered on top of an intact female developmental pathway.

The two situations are not symmetrical, and treating them as equivalent is a category error.   That is, "a semantic or ontological error in which things belonging to a particular category are presented as if they belong to a different category, or, alternatively, a property is ascribed to a thing that could not possibly have that property."

A man is not a woman, even if he chooses to dress and act like one.  Ipso facto, men are in the "male" category, including those who dress and act like women.

Sex-segregated spaces exist because of the average physical differences and privacy/safety interests between the two sexes. A person whose body developed along the female pathway due to a rare developmental disorder is not the same case as a person of the opposite sex who adopts the appearance or identity of the other sex. One is a medical anomaly in development; the other is not.

I am not inventing a system of discretionary exceptions that lets males into female spaces (or vice versa) based on identity. I am saying that rare disorders of sex development are medical facts that do not erase the binary, and that ordinary policy based on sex remains the correct default. Conflating those rare developmental cases with transgender identity claims is how the binary gets dissolved in practice.

11 minutes ago, Analytics said:

If you really are conceding that there are exceptions, where and how do you draw the line?

Again, you keep asking questions to which you already know the answer.

From my prior posts:

Quote

• The world is certainly more complicated than slogans and declarations, and rare developmental conditions (DSDs) certainly exist. That does not mean the underlying binary is arbitrary, or that every boundary drawn on the basis of sex is therefore illegitimate, or that biological males who subjectively "identify" as women have no material distinction from those few people with DSDs.
• I think we as a society can acknowledge some (very few) edge cases exist, but also differentiate those edge cases (people with DSDs) from people who are wholly male but who claim to be women based on purely subjective self-identity. 
• I would be in favor of some provision for people with clearly-diagnosed DSDs, but I'm not sure if that is present in the current NCAA guidelines or not.
• Putting aside the question for potential exemptions for persons with DSDs, I think this policy works, and is reasonable.
• 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).
• However, most legislative enactments are intended to address an issue as it applies broadly, not as it applies to situations at the extreme edges.  For those extreme edges, some exceptions can be made, such as people with DSDs. 
• “There are way too many variables to simply judge by a birth certificate” is a reason some people prefer self-ID or case-by-case appearance judgments. It is not a demonstration that sex is an irrational or purely aesthetic criterion for these spaces. Sex is the characteristic the facilities were separated on. Edge cases (including people with DSDs and people whose appearance is ambiguous) can be handled with ordinary judgment and fair process. They do not require abandoning the category that organizes the rule for everyone else.
• So the general rule of biological sex is reasonable.  I also think that some particularized exemptions/exceptions for people with DSDs would be reasonable.
• I have repeatedly acknowledged that there may be some need for exemptions to account for DSDs.
   

I am not sure how much more clear I can be.

I am not conceding a system of discretionary exceptions that lets people opt out of sex-based rules by identity or appearance.

The line is drawn by biological sex and by the medical reality of disorders of sex development.

Sex is binary: male or female, defined by the type of gamete the reproductive system is organized around. That classification holds for the overwhelming majority of people and is the proper basis for sex markers on identification and for sex-segregated spaces.

A tiny number of people have disorders of sex development—medically diagnosable conditions in which the usual developmental pathway is disrupted (for example, Complete Androgen Insensitivity Syndrome). These are not a third sex, a spectrum that dissolves the binary, or a license for self-identification. They are rare developmental anomalies. When they produce a clear mismatch between chromosomal/gonadal sex and external phenotype, medical systems have long treated them as the medical exceptions they are. That is not the same as rewriting the categories so that anyone who identifies as the opposite sex, or who has altered their appearance, is reclassified.

The distinction is straightforward:

• A documented disorder of sex development is a medical fact.
• A transgender identity claim is not.

I do not support a process in which ordinary males (or females) are allowed to change the sex marker on a driver’s license or enter opposite-sex spaces because they identify as the other sex. That is not an “exception” within the binary; it is a rejection of the binary. Rare medical DSDs do not require, and do not justify, that rejection.

The line is therefore not drawn by feelings, self-declaration, or visual presentation alone. It is drawn by sex, with genuine, diagnosed disorders of sex development recognized as the narrow medical anomalies they are.

11 minutes ago, Analytics said:

p.s. In today's news, I presume that you're happy that Kansas has a "Compliance Crew" to make sure that men don't go into women's restrooms:

https://kansaspublicradio.org/statehouse-news/2026-08-20/transgender-men-in-kansas-compliance-crew-use-womens-bathrooms-to-protest-state-law

The name “Compliance Crew” is doing the rhetorical work for them. These are biological females who identify as male. Under the Kansas law, that means they are required to use the women’s facility. So they put on masculine presentation, walk into the women’s room in groups, and call it “compliance.”

The point of the stunt is to create exactly the visual and social mismatch the law is designed to - and generally will prevent (people who look and present as male occupying a female space) and then treat the resulting discomfort as proof that the law is absurd. It is not a demonstration that sex-based rules are incoherent. It is a demonstration that when people adopt the appearance of the opposite sex, friction occurs. That friction is the reason sex-segregated facilities exist in the first place.

Calling it “compliance” does not change the underlying reality: the law is sorting by sex, not by identity or presentation. Their protest confirms why that sorting is necessary.

Thanks,

-Smac

[smac97]

44 minutes ago, Analytics said:

From its founding in 1861 until February of 2026, Kansas had exactly the laissez faire policy that I propose.

Which makes you kind of wonder whether things have changed in recent years, such that a laissez fair policy that was previously sufficient has ceased being so.

Perhaps in the past Kansans axiomatically valued considerations that protect women's interests, and so prioritized those interests, and that prioritization was sufficient to allow a laissez faire policy to work.  Nothing more was needed because there was no effort in years past to do what you are trying to do now, namely, obliterate sex-segregated spaces and let anyone and everyone enter into women's bathrooms.

44 minutes ago, Analytics said:

I've looked for evidence that it wasn't working. I came up empty. I asked you to provide evidence that it wasn't working. You couldn't provide anything, either.

Here is my reasoning, with candor. My "policy preference would not result in the obliteration of sex-segregated bathrooms" because my policy preferences worked perfectly fine from 1861 until 2026. 

With candor, why do you think sex-segregated bathrooms survived in Kansas until February of 2026 without laws that said who can and cannot use various restrooms?

Sex-segregated bathrooms survived for over a century without detailed statutory rules because almost everyone shared the same basic understanding: sex is binary, real, and the relevant category for those spaces. The norm was enforced by social expectation, facility design, and ordinary common sense, not by a thicket of statutes.

When virtually no one was claiming a right to enter the opposite-sex facility on the basis of identity, formal legal lines were unnecessary.

But things have changed.  That background consensus has been deliberately contested. Once institutions, activists, and some governments began treating sex as secondary and subordinate to self-identification, and once people began entering opposite-sex spaces on that basis, the informal equilibrium no longer held.

The new statutes are a response to that change, not the cause of it.

Pointing to the long period without explicit statutory language does not prove that sex-based boundaries are optional. It proves that shared recognition of sex made detailed legal enforcement largely unnecessary. When that recognition is rejected, the prior arrangement stops working on its own, and clearer rules become necessary to preserve the same spaces.

The difficulties arising from the persistent lack of candor about the purpose of these spaces are substantial. Sex-segregated facilities for women were created to protect the privacy, safety, and dignity of women as a sex class. They were never designed to accommodate males who subjectively identify as women. That original purpose is routinely and vigorously obscured and ignored.

The lack of candor appears in several recurring patterns, several of which are manifest in this thread:

• Conflating rare medical DSDs with identity claims. Treating disorders of sex development as if they justify self-identification policies, while refusing to distinguish the two.
• Selective concern for “safety.” Emphasizing the vulnerability of males who identify as women while downplaying or dismissing or ignoring the safety and privacy concerns of women and girls in the same spaces.
• Moving the goalposts on evidence. Demanding exhaustive proof that problems occur under self-ID regimes, while treating anecdotal or institutional accommodations as sufficient evidence that no problems exist.
• Euphemism and linguistic capture. Preferring terms like “gender-affirming,” “assigned sex,” or “sex assigned at birth” in ways that obscure the underlying biological distinction rather than clarify it.
• Asymmetry in application. Insisting that sex is irrelevant when males seek access to female spaces, but treating sex as highly relevant when discussing medicalization, sports performance, or criminal pattern data.
• Refusal to define terms operationally. Avoiding clear, falsifiable definitions of “woman,” “man,” or “gender identity” that could be applied consistently in law, policy, or data collection.
• Treating dissent as "harm." Framing disagreement about sex-based rules as inherently bigoted or dangerous, which short-circuits substantive debate about trade-offs and consequences.
• No limiting principles.  The refusal to state any coherent limiting principle that would prevent the category from expanding without end; and the corresponding unwillingness to acknowledge the predictable result—that women’s single-sex spaces are steadily eroded or eliminated once sex ceases to be the operative criterion.

These are not minor rhetorical disagreements. They are systematic efforts to avoid stating, in plain terms, what the policy actually requires and whom it disadvantages.

Thanks,

-Smac

Edited 1 hour ago by smac97

[Calm]

15 hours ago, smac97 said:

Edge cases do not justify rewriting the rule that the spaces are organized by sex.

I don’t see an issue with making exceptions for exceptional cases.  The law doesn’t have to be all or nothing.  There could be a process to be declared an exception by a committee if it turns out that self appraisal of how much one passes is not enough.  This would not make it so anyone who wants to can use any facilities.

[smac97]

4 hours ago, SeekingUnderstanding said:

Quote

How is this prosecutable?  You said that we would still be able to prosecute exhibitionism, voyerism, etc.  That's my issue.  How do we protect victims?  If we could trust everyone to be reasonable, we wouldn't need criminal laws.  But we can't trust everyone to be reasonable.

I’m curious why this is different than other difficult to prove cases like stalking, harassment, and many cases of rape including marital rape. Cases where there exists a great deal of plausible deniability?

Those cases are difficult for a reason, and the difficulty is not treated as a reason to abolish the underlying category.

Stalking, harassment, and rape (including marital rape) remain crimes even though proof is often hard, evidence is contested, and plausible deniability is common. We do not, however, respond to that difficulty by declaring that the prohibited conduct is no longer prohibited, or by redefining the relevant categories so that the conduct becomes harder to identify in the first place. We keep the substantive rule and accept that some cases will be difficult to prove.

The bathroom issue is different in a key respect. When the rule is “no males in the female facility,” the threshold question is relatively concrete: is this person male? That is a factual question about sex. When the rule is replaced by self-identification, the threshold question becomes “does this person identify as a woman?”—a claim that is, by design, difficult or impossible for an outsider to falsify. That is not the same as the ordinary problem of proving intent or non-consent in stalking or rape cases. It is a deliberate shift that makes the boundary itself unverifiable.

Difficult proof is a feature of many criminal laws. It is not a justification for eliminating the sex-based boundary or for making the boundary turn on an unfalsifiable internal state. The two problems should not be conflated.

Thanks,

-Smac

[smac97]

4 minutes ago, Calm said:

Quote

Edge cases do not justify rewriting the rule that the spaces are organized by sex.

I don’t see an issue with making exceptions for exceptional cases.  The law doesn’t have to be all or nothing.  There could be a process to be declared an exception by a committee if it turns out that self appraisal of how much one passes is not enough.  This would not make it so anyone who wants to can use any facilities.

I agree that exceptional cases can be handled as exceptions. The question, I think, is what counts as an "exceptional" case.  As soon as we make an exception to allow women and anyone who in any way subjectively identifies as a woman into women's spaces, the exception swallows the rule, women's spaces are obliterated, and 

A diagnosed disorder of sex development is a medical fact. It is rare, documented, and does not require inventing a new category or a standing committee that evaluates identity claims. That is a narrow, evidence-based exception within a sex-based rule.

What you are describing is different.

A process that lets people apply to be treated as the opposite sex—whether by self-appraisal of “passing” or by committee review of identity—turns the exception into a pathway for reclassification. Once that pathway exists, the rule is no longer “these spaces are organized by sex, with rare medical anomalies handled as medical anomalies.” It becomes “these spaces are organized by sex, except for those who successfully petition to be treated otherwise.” That is not a minor administrative refinement. It is a substantive change in, even an upending of, the organizing principle.

The problem is not the existence of any exception whatsoever. The problem is converting sex-based spaces into spaces that can be entered by the opposite sex through a bureaucratic or identity-based process. Diagnosed DSDs do not require that. Self-identification, even if filtered by a committee, does.

A formal “committee” process for granting exceptions based on gender identity (or related criteria such as “passing,” diagnosis of gender dysphoria, or self-identification) could carry a real Equal Protection risk.

A clean sex-based rule—everyone uses the facility matching biological sex—is a straightforward sex classification. Courts have upheld such rules under intermediate scrutiny when justified by privacy and safety interests tied to physical sex differences. The classification is applied uniformly: males use male facilities, females use female facilities.

Once the government creates a discretionary pathway that lets some people use the opposite-sex facility based on gender identity, the policy is no longer purely sex-based. It now classifies people according to whether their gender identity has been approved by the committee. That introduces an identity-based distinction on top of the sex classification. Plaintiffs can then argue:

• The state is treating similarly situated people differently on the basis of gender identity (those whose identity is recognized versus those whose is not).
• The existence of an identity-based exception undermines the claim that the underlying sex classification is necessary or evenhandedly applied.
• Depending on the circuit and the evolving case law, the policy may trigger intermediate scrutiny (as a sex classification) or, in some views, heightened scrutiny if transgender status is treated as quasi-suspect.

In short, the committee approach converts a relatively clean sex-based rule into a hybrid system that explicitly turns on gender identity for a subset of people. That makes the policy more vulnerable to Equal Protection challenges than a uniform sex-based rule with no identity-based exceptions. Rare, medically diagnosed disorders of sex development can still be handled as medical facts without creating a standing identity-review process that invites these claims.

Thanks,

-Smac

[california boy]

On 8/19/2026 at 12:28 PM, smac97 said:

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.

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.  

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.

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.

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.

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:

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.

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:

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.

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.

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:

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

Almost all of your arguments fall apart when you look at actual transgenders actually look like.  People in public places base their assumptions of sex on appearance and not presenting their license or birth certificates.  

[Doctor Steuss]

3 minutes ago, california boy said:

Almost all of your arguments fall apart when you look at actual transgenders actually look like.  People in public places base their assumptions of sex on appearance and not presenting their license or birth certificates.  

While he apologized after being called out for it, I think it's helpful to remember that he has compared a transgender individual passing as their preferred gender identity as being on par with them committing rape.

When someone passing as their preferred gender is seen as a violent act against you and society, it's easy to minimalize endangering their lives in return.