Kansas anti-discrimination laws lag behind federal statute. Is local action the solution?

For years, Kansas Democrats have unsuccessfully pushed for an expansion of the state’s anti-discrimination law – and year after year, the legislation has failed to gain any traction.

This year, it failed again. The regular session has come to a close, and the bill did not receive a hearing or a debate on the floor.

The bill, which was initially introduced in 2013, would add gender identity, status as a veteran, and sexual orientation as protected classes from housing, employment, and other forms of discrimination. But it has made no headway in over a decade.

Rep. Brandon Woodard, a Lenexa Democrat who is gay, has advocated for the change since taking office in 2019. He said the legislation is important not only to protect more people from discrimination but also to prepare in the case of a major uphaul in federal law.

“The federal Supreme Court has clearly shown they are able to undo settled law,” Woodard said. “If they were to overturn Obgerfell (same-sex marriage) or any other law relating to LGBTQ communities, we would fall back on state law. And state law, right now, has dangerous gaps.”

Action must be taken at the state and local levels to ensure LGBTQ communities are protected no matter what the federal government does, he said.

Kansas activists worry the overturning of some federal laws protecting the rights of LGBTQ+ people could be on the conservative agenda for the 2024 presidential election. Existing loopholes in some federal laws have caused some LGBTQ+ activists to strengthen anti-discrimination laws on the state level.

Activists say they are concerned that if former president Donald Trump returns to the White House, those protections could quickly erode. Trump has promised to remove all references to sexual orientation and gender identity in all current federal laws. This would effectively end any law that protects LGBTQ+ Americans from discrimination.

Iridescent Riffel, a transgender woman who works with LGBTQ+ advocacy group Equality KS, said Trump’s proposed legislative plans are a grim sign of what another conservative administration would do to LGBTQ+ Americans.

“Just like we saw with abortion rights and bodily autonomy, the people who are pushing to take away those rights are the same people who want to take away the rights of LGBTQ people,” Riffel said. “We’ve seen them signal to it already. That is exactly their intention.”

Rep. Will Carpenter, an El Dorado Republican, chairs the House Federal and State Affairs Committee, which allows him to decide which bills are granted a hearing. He said he did not know anything about the bill, and said that no one had brought it up to him.

Fighting back against anti-transgender legislation, such as a bill that would ban gender-affirming care for minors, has also stalled progress, proponents say.

Taryn Jones, a lobbyist with Equality KS, said the legislation has forced them into a defensive role where they are unable to focus wholly on enacting pro-LGBTQ+ legislation.

“We would love to do more pro-LGBTQ legislation,” she said. “But unfortunately most of our time is spent on the defense because of the reality of who is in the Kansas Legislature.”

Federal loopholes

Federal housing and employment laws already protect LGBTQ+ Americans from discrimination in a majority of housing and employment circumstances. However legal experts say there are gaps in who is protected from discrimination that local or state laws could fill.

For example, a loophole in federal employment discrimination law could prevent thousands of Kansas employees who work at a small business with less than 15 employees from filing a discrimination lawsuit against their employer. Additionally, federal housing nondiscrimination laws include exemptions allowing sellers or renters to discriminate against protected groups in some small rentals, religious organizations, and private clubs.

State protections, such as those in the proposed legislation, could add a layer of protection against discrimination, said Richard Levy, a constitutional law professor at the University of Kansas Law School.

“Protections under federal law are limited to the scope of those federal laws,” Levy said. “When there is no federal law that applies, that’s when state law steps in.”

At the heart of the issue, proponents say, is that federal anti-discrimination laws still allow for bias or unfair treatment based on gender identity or sexual orientation to be denied access to places such as bars, restaurants, and public pools.

With public accommodation protections in place, businesses and public places would be unable to refuse service to people based on their identities, said D.C. Hiegert, an attorney who is an LGBTQ+ Fellow at the American Civil Liberties Union of Kansas.

“In the public accommodations context, there is no federal comparison,” Hiegert said. “So anti-discrimination statutes and local ordinances are really key for folks who often face more issues accessing services in the public sector.”

The bill would add more protections that may prevent some LGBTQ+ families who feel unsafe from leaving Kansas, said Tom Alonzo, the state board chairman of LGBTQ+ advocacy group Equality KS. He said additional legal protections would improve the lives of LGBTQ+ Kansans.

“It takes away some of that danger,” Alonzo said.

Patchwork of Protections

The bill’s lack of progress in the Legislature has refocused efforts to encourage local governments across Kansas to expand their anti-bias laws. Proponents say this is another way to remedy anti-discrimination law loopholes.

Jones, a lobbyist with Equality Kansas, a pro-LGBTQ+ advocacy group, said that while local ordinances are not ideal because they can create patchwork protections, advocacy groups must focus on achievable actions.

“I would love to have the state-level nondiscrimination protections,” Jones said. “But the fact is that the Legislature isn’t going to do that, so we have to protect people in any way we can.”

Nearly half of the state’s LGBTQ+ population is protected by local anti-discrimination laws, according to data collected from the Movement Advancement Project, a nonprofit research organization that tracks legislation. The majority of the ordinances have been enacted in northeast Kansas and in Wichita, where most of the state’s population resides.

But progress is increasingly being made in more conservative areas of the state, Alonzo said.

Riffel, a transgender woman, lives in Lawrence, one of the communities to pass local anti-discrimination ordinances. She said she feels safer and more welcome with the law in place.

“They really do make a difference,” Riffel said. “That doesn’t mean that there’s no homophobia or transphobia in those places, because I’ve experienced that. But it really does make a difference.”

But local ordinances often look different depending on the municipality, creating patchwork protections across the state, where some LGBTQ+ Kansasns receive more protections than others, Woodard said. For example, one city may restrict conversion therapy in addition to anti-discrimination laws, while another may not specifically prohibit it.

Woodard said this creates a disconnect based on where people live.

“Having a one-size approach applied across the whole state is always cleaner than creating these patchwork protections,” Woodard said.

But instituting these local protections could be an uphill battle, said Rep. Susan Ruiz, a Shawnee Democrat who is a lesbian. She has pushed for the state statute expansion for years and said that though some progress has been made in conservative areas, it may take more extreme measures to fully protect LGBTQ+ Kansans using local ordinances.

“It feels like to me it’ll take an amendment to the constitution for that to happen,” she said.

The change in statute not only has tangible benefits for LGBTQ+ Kansans but also has significant symbolic value as Kansas lawmakers continue to advance anti-transgender legislation, Riffel said.

“We have laws that are being pushed by misinformation, disinformation, and the demonization of our community that makes us targets,” she said. “Having this law there to protect us is not only central for our wellbeing but also to fight back against that narrative pushed on us.”