November, 2024
An Overview of Transgender Laws, Legislation, and Litigation in Kansas
By Casey Smith, Title IX and Equal Employment Opportunity Investigator, University of Kansas
Legislation and litigation impacting the transgender community were prevalent in 2024. Specifically, 527 bills across the United States and 12 bills in Kansas were introduced that targeted the transgender community.[1]Currently in Kansas, four state laws specifically affect transgender individuals through their definitions of "sex." The most prominent law, "The Womens Bill of Rights" informed, and continues to inform, legislation in Kansas that targets the transgender community. Kansas is also involved in active litigation to prevent Title IXs 2024 final rule from being implemented in the states educational institutions. Title IX's recent rule defines "sex-based discrimination" to include discrimination on the basis of gender identity.
Knowing the current landscape of statutes and litigation affecting the transgender community is important to understanding future trends of proposed legislation or possible litigation.
SB 180 "The Women's Bill of Rights": Codified as K.S.A. 77-207
The Kansas Legislature passed "The Womens Bill of Rights" in April 2023 by overriding Governor Laura Kelly's veto and the statute took effect on July 1, 2023.[2] K.S.A. 77-207 defines "sex," "female" "male," "woman," "girl," "man," "boy" "mother," and "father" as based on "biological sex, either male or female, at birth" for statutory construction.[3] Accordingly, the Kansas legislature used these definitions to inform its other actions, such as "The Fairness in Womens Sports Act" or amendments to K.S.A 19-1903 and K.S.A. 72-6286.
The Womens Bill of Rights also requires state agencies, departments, offices, or state-sponsored programs to adopt the definitions in the statute.[4] This includes state-sponsored athletic programs, prisons or other detention facilities, domestic violence or rape crisis centers, locker rooms, restrooms, and other areas where "biology, safety, or privacy are implicated that result in separate accommodations."[5] ►
◄ Currently, 26 states, including Kansas, are enjoined from implementing the 2024 final rule.31 The Supreme Court upheld the injunction in the Fifth and Sixth Circuits on August 16, 2024.
An implication of state agencies adopting the "Womens Bill of Rights" definition of "sex" is that transgender individuals in Kansas cannot update their birth certificates, state identification cards, or driver's licenses from their gender assigned at birth to match their gender identity.[6]State agencies are also applying the "Womens Bill of Rights" retroactively. For example, if an individual updated their gender marker to reflect their gender identity prior to July 1, 2023, state agencies must revert an individual's gender marker to match their gender assigned at birth when that individual renews their state identification document. Under the "Women's Bill of Rights," it is unclear whether a Kansan required to update their gender marker would incur the cost of a renewal fee or new issuance fee for their identification document.
The Kansas Department of Health and Environment ("KDHE") consequently adopted a policy change preventing transgender individuals in Kansas from updating the gender markers on their birth certificates.[7] However, the Kansas Department of Revenue ("KDOR") did not change its policies to prevent transgender individuals from updating the gender markers on their state identification or driver's licenses. KDOR relied upon language from a consent Judgment from 2019 in Foster v. Anderson, where Judge Daniel Crabtree permanently enjoined the "Kansas Birth Certificate Policy."[8]The "Kansas Birth Certificate" policy prevented transgender individuals from updating their birth certificates to reflect their gender identity.[9] In response, Kansas Attorney General Kris Kobach sued KDOR to compel KDOR's adherence to K.S.A. 77-207.[10] Governor Kelly's administration ordered KDOR to defend itself in the lawsuit and the ACLU of Kansas successfully moved to intervene.[11]
Shawnee County District Court Judge Teresa Watson granted the Attorney General's temporary restraining order and temporary injunction to (1) enjoin KDOR from processing any gender marker requests from individuals that "[do] not reflect their biological sex as defined by SB 180" and (2) compel KDOR to "take all actions necessary to ensure that any newly issued or reissued driver's licenses reflect the licensee's biological sex as defined by SB 180."[12] On April 25, 2024, the temporary injunction decision by the district court was appealed. No substantive updates have occurred in this action since April 25, 2024, and the action is waiting to be heard by the Kansas State Court of Appeals.
SB 228: Amended K.S.A. 19-1903
The Kansas legislature passed the amendment to K.S.A. 19-1903 in April 2023 by overriding Governor Kelly's veto. The amendment took effect on July 1, 2023.[13] The amendment to K.S.A. 19-1903 requires the sheriff or deputy of a county to include separate rooms for each sex, "male and female," as defined by the individual's "biological sex ... at birth."[14] In practice, K.S.A. 19-1903 forces officers to place transgender individuals in...
