Kansas officials are pointing to transgender and intersex plaintiffs’ social media activity as part of the state’s defense of a sweeping law restricting gender markers on identification documents and restroom access.
The arguments surfaced during proceedings in Doe v. Kansas, a lawsuit challenging Senate Bill 244. The law invalidated previously issued driver’s licenses when the gender marker differs from the holder’s sex assigned at birth and restricts transgender people from using certain restrooms in government buildings consistent with their gender identity. The law also creates a private cause of action allowing people to seek $1,000 in damages over alleged restroom violations.
Republican Attorney General Kris Kobach has argued that plaintiffs claiming the law threatens to involuntarily disclose their transgender or intersex status have weakened their privacy arguments by previously discussing their identities publicly online.
During questioning, Kobach confronted plaintiff Dakota West, an intersex woman, about a Facebook post discussing her intersex status that received millions of views. West distinguished choosing to discuss herself online from having her identity disclosed during an in-person interaction involving government identification.
Another plaintiff, identified as Daniel Doe, similarly testified that previous online disclosures were made voluntarily.
“I made all of these posts on my own terms,” Doe testified. “I can’t necessarily control when I have to produce my identification.”
That distinction sits near the center of the privacy dispute: whether voluntarily telling some people, or even a large online audience, that someone is transgender eliminates an expectation that the government will not force that disclosure in unrelated situations.
Kobach argues that it does undermine the plaintiffs’ position. He told reporters that publicly proclaiming information about being transgender indicates a person does not have an expectation that the information will remain private.
Attorneys representing the plaintiffs strongly disagree.
Harper Seldin, an attorney involved in the case, argued that the social media posts are irrelevant and accused the state of using them to pressure people who have come forward to challenge the law. Three plaintiffs are proceeding under pseudonyms, and the state has sought to reveal their faces despite the court allowing their names to remain private.
The broader lawsuit challenges a law that has affected roughly 1,700 transgender and intersex Kansans whose licenses were invalidated. Plaintiffs argue SB 244 violates protections involving privacy, personal autonomy, equality, due process, and free speech.
The case also raises a question extending well beyond Kansas: whether choosing when, where, and with whom to disclose being transgender is fundamentally different from having the government make that decision for you.
For the plaintiffs, that difference is precisely the point.
