Gov. Laura Kelly vetoed a ban on transgender female athletes on Friday, striking down the hot-button issue for the second year and setting up a possible showdown with supporters of the measure when the legislature returns to the Kansas Statehouse next week.
This year is the third in a row that a bill proposing restrictions on the eligibility of trans athletes was introduced by Kansas lawmakers.
“Both Republican and Democratic governors have joined me in vetoing similar divisive bills for the same reasons: it’s harmful to students and their families and it’s bad for business,” Kelly said in a statement.
In 2020, the bill, sponsored by disgraced former Wichita Rep. Michael Capps, didn’t receive a hearing.
In 2021, the legislation passed both chambers on the final day of the regular session after the language was stripped from the original bill and placed in another after the first stalled on its journey through the legislature. Republicans did not have enough votes to override Kelly’s veto.
This year, language from the bill — introduced at the request of state Sen. Renee Erickson, a Republican from Wichita — was put in another bill after the first failed to gain traction. On the final day of the regular session, it passed through both chambers without a vetoproof majority, which is two-thirds majorities in the House and Senate.
Erickson did not respond to The Wichita Beacon’s requests for an interview.
Dozens of similar bills have been introduced in nearly every U.S. state over the past two years. Supporters of the legislation in Kansas say it’s needed to protect female athletes. Opponents argue it is evidence of the latest in a series of coordinated attacks against an already marginalized community, under the guise of solving a problem that they say doesn’t exist.
“If you look back in the past, we didn’t see bills attacking trans kids until after Obergefell,” said Rep. Stephanie Byers, a Wichita Democrat, referencing the 2015 U.S. Supreme Court decision that legalized same-sex marriage nationwide. “After Obergefell, you see bathroom bills, identity bills, athletic bills and now health care bills.”
Conservative lawmakers in Kansas who ushered the bill through the legislature have been careful to narrow the focus of debate strictly on trans athletes in public schools. But to Byers — and to most of the 95 others who testified in opposition to the bill during its committee hearing, outnumbering proponents nearly seven-to-one — this bill is about much more.
“This isn’t about athletics, I think, at this point in time. We’re pretty much sure of that,” Byers said. “I think the real thing (this bill is about) is putting kids back in the closet.”
What would the bill do?
If the legislature overrides Kelly’s veto and Senate Bill 160 becomes law, transgender girls would be banned from playing on a girls team, regardless of their age, gender identity or any gender affirming medical treatment received. The bill has no equivalent requirement for trans male student athletes.
The bill would apply to any state-funded school from kindergarten through university. It would also permit an athlete, team or school to sue a competing school if they believe the other school violated the bill’s requirements by allowing a trans girl to play on a girls team.
Only one athlete out of 37,000 girls statewide would be impacted, Byers said.
The bill does not specify how the gender of a student believed to be in violation of the proposed law would be verified. The Kansas State High School Activities Association, the Kansas Board of Regents or the trustees of technical and community colleges would be required to create policies on how to verify an athlete’s gender.
The ambiguity regarding enforcement has raised concerns that the bill could result in physical examinations of students, said Amanda Mogoi, an advanced practice registered nurse in Wichita who provides gender affirming medical treatment to trans patients.
The accused student “could theoretically have to have a genital exam, or have a hormonal examination or even a genetic examination,” Mogoi said. “To know what their karyotype is and all these things that just lend themselves to further discrimination against people.”
‘This bill starts at kindergarten’
The word transgender does not appear in the bill, which Byers called a form of erasure. Instead, the bill refers to trans girls as “biological males,” language which Byers said is intended to craft a misleading image of trans students.
Proponents, including Sen. Mark Steffen, a Republican from Hutchinson, testified in a committee hearing that the male sex hormone testosterone provides an unfair athletic advantage by increasing muscle mass and lung capacity.
“From the differences in height and weight, to the differences in muscle mass, cardiac output, and oxygen carrying capacity (to name just a few), males have a competitive advantage over females that precludes fair competition in sports,” Steffen wrote in support of the bill.
But many of the explanations of physiological differences provided by bill proponents create an image that girl athletes would be competing against full-grown men, rather than trans girls their own age.
Many transgender girls do not go through a testosterone-dominant puberty, Mogoi said. As they begin puberty, some trans youth, with approval of therapists, guardians and medical providers, may take puberty blockers, Mogoi said, which stop the production of sex hormones like testosterone.
And even when patients go through a testosterone-dominant puberty, Mogoi said, if they begin taking estrogen, the athletic advantages of testosterone decrease.
“We know that trans women who take estrogen have a fairly quick decline in muscle mass, and an almost immediate decline in lung volume,” Mogoi said.
Hormones are only part of what makes a person’s biological sex, Mogoi said, and do not always suggest a clear gender binary. Cisgender women can have naturally high testosterone, like those with polycystic ovary syndrome, Mogoi said.
And hormones only really matter after an athlete starts puberty, Mogoi said, though if this bill becomes law, students’ athletic participation would be regulated long before hormones impact their abilities.
“There’s very little differences (between genders) in hormones and development before the start of puberty,” Mogoi said. “This bill starts at kindergarten, that’s 5 years old.”
Similar transgender athlete bans in 42 states
Since the nation’s first state-level bill banning transgender youth from participating in school sports was signed into law in Idaho in 2020, similar bills have been introduced in 41 more states. Of those, 13 of the bans have become law.
The bills, many with nearly identical text, began popping up in state legislatures after President Joe Biden signed an executive order on his first day in office banning discrimination on the basis of gender identity across a swath of federal laws. Among those laws is Title IX, which prohibits sex-based discrimination at any education-related program that receives federal funding, including athletic teams.
“On President Biden’s first day in office, he signed an Executive Order that clearly was intended to threaten these hard one [sic] victories by requiring that women’s athletic opportunities be open to biological boys,” Brittany Jones, policy director for conservative advocacy group Kansas Family Voice, wrote in support of the bill.
Prior to 2020, each state managed its own policies for transgender athletes, most often through the state high school athletic associations, according to ESPN.
In states where a ban on trans athletes was passed into law, lawsuits challenging the policies often followed, including Idaho, Connecticut and West Virginia. Enforcement of the laws has largely halted while multiple federal cases make their way through the courts.
Politics takes a mental toll
Mogoi said that she often hears deep sadness from among the 70 trans youth she treats.
“Somebody told me the other day, ‘I think the point is cruelty, I think that the point is that they want us to commit suicide so that we’re not here,’” Mogoi said. “These kids see that the state legislature is actively working to suppress them.”
Mogoi’s observations are supported by nationwide data.
Nearly all – 94% – of LGBTQ youth reported that the current state of politics impacted their mental health, according to a 2021 survey published by The Trevor Project, a nonprofit organization focused on suicide prevention measures among LGBTQ youth. More than half of transgender youth had considered suicide, the report said.
Byers, a retired educator, said that it’s disorienting for students when a bedrock of their emotional well-being is also targeted with legislation like this.
“Public schools in America are this ubiquitous place where you can feel safe. They’re going to celebrate you no matter what. The most visible part of it is activities and athletics, and you are not going to be allowed to be yourself,” Byers said. “That robs you of your sense of safety immediately. We start shaking these pillars of safety and it makes it that much harder and that much more scary to be who you are.”
Byers believes the pushback against trans people generally, and trans youth in particular, may be more rooted in fear than in hate.
“We’re living in a future time. We’re living in a society that’s rapidly growing in acceptance of the LGBTQ community,” Byers said. “But when you’re living in the past, that’s a scary place to be. Because people in the past go extinct.”
