Transgender and nonbinary student athletes will no longer be allowed to play on girls’ sports teams in Kansas schools, following the state legislature’s override of Gov. Laura Kelly’s veto of House Bill 2238. The Kansas trans sports ban does not restrict who might play on boys’ teams.
The override is the culmination of a three-year effort by conservatives to pass the bill over Kelly’s repeated vetoes, part of a nationwide effort to enact laws that target transgender people. With the override, Kansas becomes the 20th state to enact restrictions on trans students’ athletic participation. Idaho was the first in 2020.
Discourse surrounding the bill stood out this year as uniquely tense and uncertain, taking a dramatic turn on the House floor during the vote to override the governor’s veto.
When the Kansas House of Representatives first voted on the bill in February, it was unclear whether the Democratic opposition was united against it. A lone Democrat, freshman lawmaker Rep. Ford Carr of Wichita, unexpectedly sided with conservative lawmakers in supporting the bill, appearing to give Republicans a vetoproof majority. Carr defected not only from his party but from his predecessor, the late Rep. Gail Finney, who hand-picked Carr to fill her seat as her health declined. Finney died last August.
With two Republicans joining Democrats in opposing the bill, it was thought that Carr might cast the deciding vote to override Kelly’s veto. But following weeks of scrutiny of his unexpected vote from constituents, advocates and journalists, Carr changed his mind and voted to uphold the governor’s veto.
But even with Carr’s change of heart, Republicans got the one Democratic detractor they needed: Rep. Marvin Robinson, a freshman lawmaker from Kansas City, cast the crucial 84th vote necessary to override the governor’s veto.
It’s the latest of several close votes cast by Robinson in recent weeks that sided with Republicans, including votes on bills that would further limit food assistance eligibility, penalize doctors for performing some abortions and require doctors to give false medical information to abortion patients.
Emotions erupted on the House floor as the veto override vote was counted, when it became clear that Robinson would not budge on his vote. Some lawmakers celebrated what they perceived as a win, while others became emotional over the personal cost of this bill.
Democratic Rep. Heather Meyer of Overland Park, who is the mother of a trans child, said she cried at her desk.
Democratic Rep. Susan Ruiz of Shawnee said that Republican lawmakers laughed as Meyer was crying, reported the Kansas Reflector. She told the Reflector that Republican Rep. Patrick Penn of Wichita was “gloating” after the vote.
Angered by her colleagues’ behavior, Ruiz yelled across the chamber that Republicans celebrating the outcome were “full of shit,” while Meyer stood to display her T-shirt, emblazoned with the text “Protect Trans Youth.”
Robinson told reporters after the vote that he initially wanted to find some middle ground on the trans athlete bill but felt rejected by his party, reported The Topeka Capital-Journal.
“(T)hey started getting rude and insulting and threatening to take me down,” Robinson said. “I’ve gone through various throughlines to ask for a divine intervention on this.”
With Robinson’s vote, the ban on trans student athletes will become law in Kansas, and any future challenges to the law must come through the courts or through federal intervention. But at least three other bills targeting trans people await the governor’s decision.
What does HB 2238 actually do?
The text of HB 2238 mandates that school athletic teams be divided into teams for boys or men, teams for girls or women and coed or mixed-gender teams, based on sex assigned at birth. It also bans student athletes who were assigned male at birth from playing on girls’ or women’s teams, effectively banning trans girls from playing on the team that corresponds with their gender identity. The bill does not restrict student athletes who were assigned female at birth from playing on boys’ or men’s teams.
HB 2238 would allow an athlete to take legal action against a school for depriving them of an “athletic opportunity” by allowing a trans athlete to play on the girls’ or women’s team. The athlete whose gender is under question would be stopped from competing.
The sex-based division requirements will apply to any team from kindergarten through college that is part of a public school, as well as any team that is not part of a public school if they compete against a public school team. While HB 2238 spells out for which teams the requirements apply, it isn’t clear who will enforce those requirements for teams in the sixth grade and younger.
The Kansas State High School Activities Association, or KSHSAA, was granted authority to enforce HB 2238 for student athletes in the seventh through 12th grades. For college student athletes, enforcement authority will lie with each school’s governing body, such as the Board of Regents.
But HB 2238 says nothing about who will enforce the requirements for teams too young for KSHSAA’s oversight, despite requiring those teams to abide by the new rules.
How the requirements will be enforced is also left out of HB 2238. Instead, those details are left to each designated governing body — KSHSAA and post-secondary school governing bodies. The method of verifying an athlete’s “biological sex,” whether to determine team assignments or investigate allegations that an athlete is playing for an incorrect team, is not specified in the legislation.
The main question that looms front of mind for many critics of the bill: How will athletes be expected to prove their “biological sex” as defined in this law? Many of the bills’ opponents fear that determination will be made by inspecting the genitals of student athletes age 5 through early 20s. While HB 2388 does not require genital inspections, it doesn’t ban them either.
In a speech on the Senate floor preceding the veto override, Republican Sen. Carolyn McGinn of Sedgwick questioned both how a student’s sex would be verified and the impact such verification would have on children.
“I don’t think you have to give your birth certificate to everybody freely, so how else are we going to figure it out?” McGinn said. “It’s gonna be a personal inspection. My concern for those little kids who should not even be having to worry about this issue because really they should just be running like little beehives on the soccer field and having fun. But now we’re gonna do this physical inspection and then I believe that that child will always be questioning themselves, ‘Why did this happen, Mom, Dad?’”
McGinn voted to override the governor’s veto in spite of her own concern, because her constituents supported the bill, she said.
Practitioners who treat trans youth testified that physical examinations to determine an athlete’s gender are intended to harm trans youth.
“Visual assessment of genitalia, accessing medical records, or requiring costly lab and genetic testing is a direct attack of healthcare privacy and is aimed at harming transgender individuals,” wrote Amanda Mogoi, a Wichita nurse practitioner who treats trans patients, in testimony opposing the bill. “Medical care should not be ordered or restricted according to the whims of distant lawmakers who know little or nothing about the circumstances of an individual’s life.”
A spokesperson for KSHSAA told The Kansas City Star that it’s unlikely that students will be forced to undergo genital inspections. KSHSAA will develop guidelines for enforcement before the law is scheduled to go into effect this summer.
But athletic authorities in Kansas may never have to answer the question of how to enforce the ban, because the federal government is moving towards thwarting state-level bans.
The day after the legislature overrode Kelly’s veto, the U.S. Department of Education announced that it has taken the first step toward classifying state- and school-level categorical bans on transgender student athletes as violations of Title IX, the federal law that prohibits sex-based discrimination at schools that receive federal funding. The proposed rule would give schools a framework to develop eligibility criteria to ensure fair competition and comply with sport-specific regulations.
At least a dozen bills target LGBTQ+ people
Kansas lawmakers introduced at least a dozen bills this session that target the LGBTQ+ community, including HB 2238. More than 450 bills targeting LGBTQ+ people have been introduced in state legislatures nationwide, according to the American Civil Liberties Union.
At least three of the bills introduced in Kansas had no hearings and three haven’t made it out of their chamber of origin. Two similar bills passed out of one chamber but not the other — however, the contents were copied into a different bill that passed both chambers and will be sent to the governor once it is enrolled.
Three have passed both chambers and will head to Kelly’s desk.
Bills that await Kelly’s decision:
Senate Bill 26 would revoke a physician’s medical license for providing gender-affirming medical care, including hormone therapy, to minors. It would also allow people who received gender-affirming medical care as minors to sue their providers. The bill’s original text, which dealt with financial reporting requirements for health insurers, was “gutted” and replaced with the text from SB 233 using the tactic commonly known as “gut and go.” The original bill hadn’t moved since March 1, and the “gut and go” resurrected it two days before the close of the session, when it was passed. The bill text that originally appeared in SB 233 was introduced by Republican Sen. Mike Thompson of Shawnee.
Senate Bill 180 creates a statutory definition of biological sex based on reproductive anatomy, and would allow the state to mandate the separation of the sexes in settings like domestic violence shelters, prisons, rape crisis centers, public restrooms and locker rooms. Opponents testified that the bill would exclude trans people from many public spaces, and would effectively erase nonbinary people altogether. The bill was introduced by Republican Sen. Renee Erickson of Wichita. The bill passed the Senate with a vetoproof majority and passed the House one vote shy of vetoproof. Once Kelly receives the enrolled version of the bill, she will have 10 days to decide whether to veto it.
Senate Bill 228 would require incarcerated people to be divided by their gender assigned at birth while in custody. The gender-based division portion of the bill was added during committee workup to a bill that was initially put forward by law enforcement organizations. It passed both chambers with a vetoproof majority.
Bills that passed one chamber:
House Bill 2263 would revoke a physician’s medical license for providing gender-affirming medical care, including hormone therapy, to minors. It would also allow people who received gender-affirming medical care as minors to sue their providers. The bill was introduced at the request of Kansas pharmacists to allow pharmacy technicians to administer vaccinations, but the Senate committee added the section pertaining to gender-affirming care and the physicians who provide it. The bill passed each chamber once, but it’s gone back to the House to consider the revisions relating to gender-affirming care added by the Senate. The most recent action was in late March when the bill was referred to a House committee following amendments by the Senate.
Senate Bill 233 would revoke a physician’s medical license for providing gender-affirming medical care, including hormone therapy, to minors. It would also allow people who received gender-affirming medical care as minors to sue their providers. The text of SB 233 was copied into SB 26, where it passed both chambers. This version of the bill passed the Senate short of a vetoproof majority and was introduced to a House committee on March 1.
Bills that had at least one committee hearing:
Senate Bill 12 would criminalize gender-affirming medical care for anyone under age 21, including puberty blockers, hormone therapy and gender reassignment surgery. Medical providers could be prosecuted for a severity level 4 person felony. Most legitimate medical associations recommend gender-affirming medical care for trans youth. The bill was introduced by Republican Sens. Mike Thompson of Shawnee and Mark Steffen of Hutchinson. The most recent action on this bill was a hearing in February.
Senate Bill 255 would require that overnight accommodations for students on school-related trips be separated according to assigned reproductive anatomy at birth. The bill had one hearing in March and no movement since. It was introduced by Thompson.
House Bill 2427 is the House version of SB 255, which would require overnight separation of students on school trips. The difference is that HB 2427 was amended to separate students by “genetic sex” as defined in the bill, rather than by anatomy. In amending the bill, the House committee defined males as people with at least one Y chromosome and defined everyone else as female. The bill was passed out of committee in late March but not acted upon by either chamber. It was introduced by Republican Rep. Randy Garber of Sabetha.
Bills that haven’t advanced since they were introduced:
Senate Bill 149 would make drag performances, defined in the bill as dressing as a gender not assigned at birth, an “obscenity to minors.” A first offense would be a Class A misdemeanor, and a second offense would be a felony. The bill was introduced by Sen. Mike Thompson of Shawnee. The bill hasn’t moved since it was referred to committee in early February.
Senate Bill 201 would ban the use of state money to pay for drag shows for audiences under age 18. The bill was introduced by Thompson. The bill hasn’t moved since it was referred to committee in February.
Senate Bill 207 would ban public school teachers and employees from using a student’s preferred pronouns if the pronouns differ from the child’s assigned gender at birth, unless the staff has permission from the student’s parent or guardian. It would also give a “religious exemption” for employees who are opposed to using pronouns that differ from assigned gender at birth. The bill was introduced by Sen. Renee Erickson. It hasn’t moved since it was referred to committee in February.
This article first appeared on The Wichita Beacon and is republished here under a Creative Commons license.