Kansas will legally define gender as sex at birth. What that means for transgender rights

Republican lawmakers in Kansas passed a sweeping law last week that will restrict the kinds of public spaces and services transgender and nonbinary Kansans will have access to, overriding a veto from Democratic Gov. Laura Kelly.

Referred to by supporters as the “women’s bill of rights,” the law is the first of its kind passed in the U.S. and is set to take effect in July.

The national anti-trans group Independent Women’s Forum has been pushing for this law and similar variations across the country. They say the law is meant to prevent judges from interfering with existing single-sex public spaces.

“It shows that there are people in our government system that are trying to erase our identities,” Lane Rozin, a 19-year-old transgender man who attends the University of Kansas, told The Star last week.

The law is a bit confusing, so here’s a breakdown.

What we know about the Kansas gender law so far

It defines man and woman in state statute based solely on reproductive capability, meaning that the state will legally recognize gender only in the binary terms of sex assigned at birth: either male or female.

The law asserts that reserving spaces specifically for cisgender women (those whose gender identities align with the sex they were assigned at birth) is important to “governmental objectives” in the state of Kansas.

In effect, it bars transgender and nonbinary people from accessing a broad range of single-sex places and services including specifically: prisons, domestic violence shelters, rape crisis centers, locker rooms, restrooms and “other areas where biology, safety or privacy are implicated.”

Public facilities and agencies serving specifically men or women will be required to limit those services based on sex assigned at birth. If an agency serves someone or allows them to use a space that aligns with their gender identity but conflicts with their sex assigned at birth, that facility or agency would be in violation of this new law.

How can Kansas regulate that?

Exactly how the law will play out and be enforced is yet to be seen — the text itself is both short and fairly vague. It doesn’t outline any civil penalties or fines for people or agencies that do not abide by it.

Critics say the ambiguity invites opportunities for discrimination against trans Kansans, as well as cisgender Kansans whose appearances may not fit within societal gender norms.

It could have “broad reaching consequences for the way that trans folks interact with society in everyday life,” according to Ellen Bertels, an attorney for Kansas Legal Services who helps transgender Kansans update their name or gender on official documents.

It’s likely that over time, possible legal challenges and court proceedings will determine exactly how state agencies need to respond. The law creates the possibility for individuals to sue if an agency serves a person in a way that is not aligned with their sex assigned at birth. It sets up a legal argument to ensure a judge won’t require an agency to serve someone according to their gender identity instead of their sex assigned at birth.

“A court would have to decide who’s a man and who’s a woman. That’s what this is telling the courts to do,” said Kyle Velte, a University of Kansas law professor who specializes in law related to employment and sexual orientation discrimination. She described the law as “contrary to all the best practices of medicine, science and psychology.”

While a lot is still unknown, there are some specifics that are spelled out in the law.

How does the law define male and female?

The bill’s definition of male and female is based on people’s reproductive systems. The bill states:

“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.”

The bill goes on to define terms like mother, girl, boy, woman and man as they relate to biological sex.

Intersex Kansans born with a reproductive system or organs that don’t clearly fit in the male or female category will be considered disabled and protected under the Americans with Disability Act, according to the law.

What public spaces will be affected?

The law specifically says that separating people based on their biological sex in the following places serves Kansas’ goals of “protecting the health, safety and privacy of individuals”:

Athletics and locker rooms

Kansas students who participate in high school and middle school sports will already be asked their sex at birth at pre-season physicals because of a new law barring transgender athletes from girls and women’s sports.

This new law indicates that people will need to use the locker rooms and participate in gendered activities aligned with their sex at birth in schools, and potentially also at parks, community centers and other recreation facilities that receive state funding.

Restrooms

The bill means that people will need to use public restrooms that align with their sex assigned at birth.

Former Rep. Stephanie Byers, a Wichita Democrat who was the first transgender state legislator in Kansas, said that, contrary to the aims of proponents, the law would effectively turn single-sex restrooms across the state into uni-sex facilities.

“When this becomes law, trans men — bearded, balding people — will now be going into the women’s restroom because legally that is where they are required to go,” Byers said.

Velte said that the bill was written mainly as a guide for courts to distinguish between the sexes, but it’s less clear how any of these definitions will be enforced in public spaces like restrooms.

“If you’re just talking about things like somebody’s at a restaurant, and they see someone go into the women’s room, and they think, ‘Oh, my gosh, I don’t think that’s a ‘real woman’?’’ Can they go in and challenge it? I don’t know,” Velte said.

Velte said she doesn’t think that the law is meant to be interpreted that way, but there is no set plan for enforcement based on how the law is written.

Prisons or other detention facilities

This law will have a direct effect on prisons and correctional facilities because trans women will likely be placed in men’s jails and prisons, and trans men could be placed in women’s jails and prisons, according to Bertels, adding that this is already common practice throughout the state and nationwide. There is currently one trans woman in the women’s correctional facility in Topeka.

Kelly’s administration warned that Kansas could also get less federal grant funding for criminal justice programs because the new law will require Kansas to violate the federal Prison Rape Elimination Act.

Domestic violence shelters and rape crisis centers

This law will likely affect people who are seeking care or support in times of crisis.

Crisis centers that receive state funding might decide to refuse gender-specific services to certain people. For example, a shelter could make a trans woman take a room or bed based on their sex assigned at birth.

“My understanding of the law is that she could be denied a bed on the women’s side. Now, she might be told that she could have a bed on the men’s side, she might be told she can’t be served at all,” Bertels said.

Gov. Laura Kelly’s administration warned that the bill could also result in the loss of federal funds for Kansas state agencies because compliance with the bill would violate non-discrimination policies, affecting the quality of services those agencies could provide.

The state’s Coalition against Sexual and Domestic Violence had said state agencies serving victims could lose $14 million in federal funds.

“We’re at risk of losing a ton of federal funding for domestic violence centers,” said Taryn Jones, a lobbyist for the LGBTQ advocacy organization Equality Kansas.

“Other areas where biology, safety or privacy are implicated that result in separate accommodations”

We don’t know exactly what this means or how far-reaching it could be.

The law does include definitions of mother and father that may affect court proceedings related to adoption and child welfare, according to legal fellow at the ACLU of Kansas D.C. Heigert.

There might also be issues for K-12 families that are required to submit a birth certificate to enroll their students.

“So imagine you’re listed as the mother on the birth certificate, and then you show up, and you were visibly recognized by everyone in the school as a man. But the birth certificate says you’re the mother. What do you do? What does the school do?” Bertels said.

Similar to other aspects of the law, a lot is still unclear about what this will mean for parents and families.

Other agencies that receive funding from or report to the state may view the law as broadly as possible to maintain their funding until it becomes clearer how the law will be enforced.

The governor’s office has said that a range of state programs could also risk losing federal funding because the law violates various federal guidelines.

Programs that could be affected include substance abuse programs administered by the Kansas Department of Aging and Disability Services, and state mental health hospitals, which must comply with federal guidelines on gender identity.

The Kansas Department for Children and Families also has youth residential centers and groups homes that could be affected. Federal guidance surrounding foster care funds also supports affirming a child’s gender identity, Kelly’s office said.

The new law could face legal challenges, which would further determine how it can be applied.

Will you be able to change your gender on your state ID?

Most likely, no.

The bill states that any government agencies that collect data related to gender or anti-discrimination laws must identify people as their sex assigned at birth.

Bertels said the language of the bill would make changing gender markers on state-issued IDs impossible.

“If an individual is not able to be recognized legally by their gender identity and must be recognized on state documents as their sex assigned at birth, that effectively bans gender marker changes,” Bertels said.

The ability to change a gender marker, Bertels said, is affirming for her clients and helps shield them from some forms of discrimination and harassment.

Bertels said that the bill should not work retroactively, meaning that people who have already changed their gender markers on their ID before July will not have their gender identity changed on their records.

The bill also will not prevent people from being able to legally change their names.

What else?

The law also requires school districts and state agencies to identify every person who is included in data collected for public health, safety or economics by their sex assigned at birth.

These districts and agencies also need to identify every person as male or female at birth when showing that they’re following anti-discrimination laws.

We don’t know yet what the effects of this requirement could be to transgender Kansans’ health or safety, but we are continuing to report on this law.

The new law will likely face legal challenges, which would further determine how it can be applied.