University of St. Thomas Law Journal

Couriers of Their Own Oppression: Kansas Law SB 244 Unconstitutionally Compels the Speech of Transgender People

By Bec Stokes*

Expressing oneself through outward appearance, and the ability to do so legally and socially, is something many of us take for granted. However, this expression is currently stripped from transgender people across the country.1 For example, in February 2026, Kansas passed SB 244 over the Governor’s veto.2 The law targets trans people by: 1) restricting their access to restrooms and other sex-separated areas in government facilities; 2) creating civil and criminal penalties for violating these restrictions; 3) prohibiting trans people from updating their gender on their driver’s licenses; and 4) retroactively invalidating driver’s licenses with gender markers contradicting that which is on their birth certificate.3

Creating a horrifying reality for trans Kansans, SB 244 violates basic rights granted to all people under both the federal and Kansas constitutions. Specifically, both constitutions have been interpreted to protect against compelled speech, and Kansas’s SB 244 blatantly violates those protections.

Kansas’s Free Speech Doctrine

State constitutions are able to grant their citizens greater protections than those in the federal Constitution.4 Therefore, it is important to continue using state law to advocate for individual liberties, “for without it, the full realization of our liberties cannot be guaranteed.”5 The Kansas Constitution includes a right that “all persons may freely speak, write or publish their sentiments on all subjects, being responsible for the abuse of such rights.”6 In State v. Limon, the Kansas Supreme Court found a criminal sodomy law to be unconstitutional under both the United States Constitution and the Kansas Constitution.7 The decision was guided by the US Supreme Court’s decision in Lawrence v. Texas, specifically emphasizing that “moral disapproval of a group cannot be a legitimate governmental interest.”8 While this decision was on Equal Protection grounds, the Kansas Supreme Court has stated the speech protections in their constitution are “at a minimum, coextensive with the First Amendment.”9 Therefore, what violates the speech protections of the United States Constitution also violates the Kansas Constitution.

Compelled Speech Under the Federal Constitution

As a part of First Amendment jurisprudence, the doctrine of compelled speech protects individuals and entities from being forced to express messages of the government.10 In West Virginia State Board of Education v. Barnette, the US Supreme Court held that the state cannot force children to recite the Pledge of Allegiance.11 The opinion emphasized that “if there is any fixed star in our constitutional constellation, it is that no official . . . can prescribe what shall be orthodox . . . or force citizens to confess by word or act their faith therein.”12 In Wooley v. Maynard, the Supreme Court held New Hampshire’s requirement of displaying the state motto “Live Free or Die” on all noncommercial license plates violated the First Amendment.13 The Court stated, “where the State’s interest is to disseminate an ideology, no matter how acceptable to some, such interest cannot outweigh an individual’s First Amendment right to avoid being a courier for such message.”14 SB 244 forces individuals to convey the state’s interpretation of gender identity, despite both the federal and Kansas protections against such requirements.

SB 244 And Its Effect on Transgender People

On February 26, 2026, people impacted by this law filed a petition in the Seventh Judicial District of Douglas County alleging many violations of the Kansas constitution—including, but not limited to, compelled speech arguments.15 The main issue with SB 244 is that “transgender Kansans will be restricted to using driver’s licenses that indicate their sex assigned at birth and not their gender identity as reflected in their everyday lives.”16 Therefore, they must choose whether to convey this message or have no government ID, the latter of which involves many difficulties in everyday life.17 When the law took effect, it invalidated about 1,700 licenses,18 meaning each of those individuals faces this lose-lose decision. Additionally, the law will impact any trans people wishing to obtain a driver’s license in the future. The petition raises the claim that the Kansas Constitution prohibits the State “from forcing transgender Kansans to express the State’s beliefs about sex and gender.”19 Specifically, that the Act compels transgender people to “communicate the government’s belief about their sex” and forces these individuals to obtain documents aligning with the government’s view that a person’s gender is equivalent to their sex assigned at birth.20 By enacting laws pushing transgender people to “identify with and appear as their sex assigned at birth,” the state is disfavoring transgender people.21

SB 244 Violates The Rational Basis Test

Laws violating the First Amendment are subject to, at a minimum, the rational basis test.22 While there is a strong argument for heightened scrutiny in this case, SB 244 violates even the least stringent of these tests. The purpose of a driver’s license is to show that the owner has legal rights to operate a motor vehicle and to include information that identifies the holder of the license.23 Despite the political push to require sex on identification documents, the application of the gender marker, for the government’s purposes, has no relation to one’s sex. The purpose of the gender marker is to accurately identify the individual who holds the license. In no instance does law enforcement check one’s biological sex when they check their license; they look at one’s appearance.24 Therefore, the purpose of gender markers is to indicate how one appears, or their gender expression. It would be in the government’s best interest that gender markers accurately display how one appears. Imagine an individual who was born female but has since transitioned to be male. They live their life as a man and appear to everyone as such. Having their ID include the “M” gender marker would be an accurate identifier. However, under SB 244 this individual would be forced to have an “F” gender marker. This would make identifying the individual more difficult, since their appearance and their gender marker would contradict each other. Therefore, such a requirement is the exact opposite of the government’s interest in accurately identifying individuals; meaning, SB 244 fails the rational basis test.

Despite oppressive governments, people like Kansas State Representative Abi Boatman continue to advocate with compassion: “[I have] listened to this entire room debate my humanity and my ability to participate in the most basic functions of society. And from the bottom of my heart, I hope none of you ever have to sit through something like that.”25 To challenge transphobic state laws, advocates have many tools at their disposal, and it is important to use them. As the petition challenging SB 244 demonstrates, compelled speech is one protection violated by anti-trans laws. These arguments should be made under both state and federal constitutions to more effectively advocate for the rights of transgender people. Transgender people deserve the same fundamental liberties granted to cisgender people; we are entitled protection from conveying government messages we fundamentally disagree with.

*Bec Stokes, J.D. Candidate, University of St. Thomas School of Law Class of 2027 (Associate Editor).

  1. See, e.g., Trans Legislation Tracker, 2026 Anti-Trans Bills Tracker, https://translegislation.com/ [https://perma.cc/8QJX-8AQU] (tracking anti-trans legislation across the United States).   ↩︎
  2. ACLU Kansas, Transgender Kansans Challenge State Law Invalidating Their Driver’s Licenses and Allowing Them to Be Sued for Using Public Restrooms, Feb. 27, 2026, https://www.aclu.org/press-releases/tran sgender-kansans-challenge-state-law-invalidating-their-drivers-licenses-and-allowing-them-to-be-sued-for-using-public-restrooms [https://perma.cc/MWH5-WMA4]. ↩︎
  3. ACLU Kansas, Understanding the New Kansas Law Targeting Transgender People, Feb. 27, 2026, https://www.aclukansas.org/publications/underst anding-the-new-kansas-law-targeting-transgender-people/ [https://perma.cc/ZG6R-GUAX]. ↩︎
  4. William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 491 (1977). ↩︎
  5. Id. ↩︎
  6. Kan. Const., Bill of Rights, § 11. ↩︎
  7. State v. Limon, 280 Kan. 275, 283 (2005). ↩︎
  8. Id. ↩︎
  9. League of Women Voters of Kan. v. Schwab, 318 Kan. 777, 787 (2024). ↩︎
  10. Free Speech Center, Compelled Speech Case Archives, https://firstamendment.mtsu.edu/encyclopedia/case/compelled-speech/ [https://perma.cc/G43Q-ZZYG] (last visited Apr. 17, 2026). ↩︎
  11. 319 U.S. 624 (1943); David L. Hudson Jr., Compelled Speech, Free Speech Center (July 31, 2023), https://firstamendment.mtsu.edu/article/compelled-speech/ [https://perma.cc/T9JP-FKVC]. ↩︎
  12. Barnette, 319 U.S. at 642. ↩︎
  13. Wooley v. Maynard, 430 U.S. 705, 707 (1977). ↩︎
  14. Id. at 717 (emphasis added). ↩︎
  15. Petition at 2, Daniel Doe & Matthew Moe v. State of Kansas (Feb. 26, 2026) (Div. No. 7). ↩︎
  16. Id. at 3. ↩︎
  17. “Proof of identity can act as a gatekeeper to many needs, including health care, the library, and the ability to participate in the economy. Performing very basic daily tasks—like enrolling kids in school, filling a prescription, accessing healthcare services, cashing a check, or even reporting a crime to the police—are all much harder to do without government-issued photo ID.” ACLU Kansas, Frequently Asked Questions About Municipal ID, https://www.aclukansas.org/frequently-asked-questions-about-municipal-id/ [https://perma.cc/23RW-68TJ] (last visited Apr. 17, 2026). ↩︎
  18. Sherman Smith & Morgan Chilson, ‘I’m Heartbroken’: Trans Kansans Reckon With Their Driver’s Licenses Being Invalidated (Feb. 27, 2026, at 08:55 CT) https://19thnews.org/2026/02/kansas-drivers-license-law-transgender/ [https://perma.cc/TGL4-UTXR]. ↩︎
  19. Petition, supra note 15, at 3. ↩︎
  20. Petition, supra note 15,at 26 (citing S.B. 244 § 6(a)(1)). ↩︎
  21. Petition, supra note 15, at 26.  ↩︎
  22. The rational basis test requires a statute to have a legitimate state interest and a rational connection between the statute’s means and goals. Cornell Law School Legal Information Institute, Rational Basis Test, https://www.law.cornell.edu/wex/rational_basis_test [https://perma.cc/92C6-LLYP] (last visited Apr. 17, 2026). ↩︎
  23. EBSCO, Driver’s License, https://www.ebsco.com/research-starters/law/drivers-license [https://perma.cc/6G8K-F4N5] (last visited Apr. 17, 2026). ↩︎
  24. For example, “staff cannot conduct strip and pat-down searches solely to assess your genitals.” Transgender Law Center, Transgender People and Law Enforcement Interactions: Rights and Realities, https://transgenderlawcenter.org/resources/transgender-people-and-law-enforcement-interactions-rights-and-realities/#your-rights-during-an-interaction-and-the-realities%5Bhttps://perma.cc/Q8T5-6ZG2%5D. ↩︎
  25. HRC Staff, Kansas Lawmakers Override Gov. Kelly’s Veto of Horrific “Bathroom Bounty” Bill (Feb. 18, 2026) (emphasis added), https://www.hrc.org/press-releases/kansas-lawmakers-override-gov-kellys-veto-of-horrific-bathroom-bounty-bill [https://perma.cc/QU3H-4UYE] (last visited Apr. 17, 2026). ↩︎

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