House Majority Leader Dan Hawkins says genital inspections "will not be the outcome" of a ban on transgender athletes. That's a lie, writes opinion editor Clay Wirestone, given that the law doesn’t establish how the process of determining gender will work. (Sherman Smith/Kansas Reflector)
The word went out moments after the Kansas Legislature barred transgender girls and women from playing school athletics: State legislators had authorized genital exams of children.
Parents spoke out. Social media buzzed. The legislative leaders who had made this piece of hateful legislation a priority for years scurried to deny that was the case. And yet, the preponderance of evidence — the text of the law, testimony from legislators, the uncertainty surrounding how its provisions will be enforced — suggests that such inspections are a possibility.
And if you’re not concerned now, consider the fact that lawmakers have effectively legalized the abuse of children they claim to be protecting.
I want to be clear at the beginning that some of the more alarmed chatter about these measures on social media goes too far. The new law does not specifically force or require such exams. But it could be used to justify them. Parents of public school children have every right to follow closely.
The law offers precious few specifics
Advocates for this measure worked for three years to pass it. Opponents repeatedly raised the specter of genital inspections for small children, but advocates did not revise the bill to forbid them.
The law also applies to all students, from kindergarten through college. Again, opponents repeatedly asked for revisions to focus the bill on high school and college competition, but advocates rebuffed those pleas. The bill that passed was one that anti-trans activists wanted, with murkiness to spare.
You can read the whole thing here. This is the key passage:
(1) Males, men or boys;
(2) females, women or girls; or
(3) coed or mixed.
(b) Athletic teams or sports designated for females, women or girls shall not be open to students of the male sex.
(c) (1) The Kansas state high school activities association shall adopt rules and regulations for its member schools to implement the provisions of this section
Colleges can decide their own rules.
So what does enforcement look like? How will schools verify the genders of athletes? Will parents or members of the general public be allowed to challenge certain players on sports teams?
We don’t know. Guarantees to the contrary rely on personal assurances, not the law itself.
The KSHSAA only regulates member schools
Bill proponents no doubt thought they addressed most of the questions above by punting specifics to the Kansas State High School Activities Association. That entity — which already has guidelines on transgender athletes — has now been tasked with creating new ones.
We should expect officials there to do a professional job. I reached out to KSHSAA for additional details on Friday, but they didn’t respond.
But I’m sure you can already see a problem. The law applies to students beginning in kindergarten.
Who decides the standards for those children?
The law doesn’t say. That leaves the door wide open for individual schools and school districts to make their own rules for lower grades. Depending on the district and the political winds there, officials now have legislative approval and encouragement to impose draconian restrictions on trans school kids.
Again, bill supporters had repeated chances to address these obvious shortcomings. They had years to do so. The fact they didn’t speaks volumes.
The bill’s sponsor acknowledged that ‘medical examinations’ might be necessary
Rep. Barb Wasinger, R-Hays, sponsored the bill this session. On Feb. 22, she engaged in an extended back-and-forth with Rep. Brandon Woodard, D-Lenexa, during which she allowed that students might need to be examined by a doctor for an official gender determination.
You can watch the exchange below. The key part, toward the end, is when Woodard presses her about students lacking documents that establish their gender.
“We don’t have a birth certificate, how are they supposed to prove it?” he asks.
“That would be a medical examination by their doctor that they would fill out for a sports physical,” she replies.
Again, the bill doesn’t specify any of this. Wasinger merely states the obvious, which is that a challenge to a student’s gender could require some kind of medical verification. She also stumbles in referring to sports physicals, which are more accurately known as preparticipation physical evaluations. They don’t have the same purpose as medical physicals, according to information from the National Institutes of Health, and might or might not include a direct genital exam.
Would fulfilling the law’s requirements mean that doctors have to create a new kind of physical that includes detailed confirmation of gender? We simply don’t know.
Another Republican legislator made the same point
Sen. Carolyn McGinn, R-Sedgwick, gave a prickly speech Wednesday as the Senate took up the override. While she ended up voting for the anti-trans legislation, her words revealed deep frustration about the inclusion of small children.
“How are we going to figure it out?” she asked. “Everybody says it’s a birth certificate. I don’t think you have to go give your birth certificate to everybody freely. So how else are we going to figure it out? And it’s going to 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 going to do this physical inspection. And then I believe that child will always be questioning themselves, ‘Why did this happen, mom, dad?’ ”
She then notes that she’s still going to vote for the override. But ask yourself this: Would a Republican supporting this law raise such concerns unless they had some basis?
Leadership’s defense of the bill falls laughably short
Speaker of the House Dan Hawkins pushed back Thursday as Kansas parents began asking questions.
“There’s absolutely no language or intent in the Fairness in Women’s Sports Act to require any type of genitalia inspection, and that will not be the outcome of the bill,” he intoned via Twitter. “I encourage folks to always do their research in cases like this. Especially when tensions run high, it’s important to look to facts and not accept social media posts as the final word.”
That’s an artfully constructed statement, but it’s also a lie.
I say it’s a lie because Hawkins is making “an untrue statement with the intent to deceive.”
The law requires that transgender girls and women be barred from girls’ and women’s sports. Participants’ gender therefore must be established in some way. That is both the language and intent of the law. Hawkins can’t claim to know how that process will work, given that the law doesn’t establish how the process will work. He doesn’t know.
Hawkins had the choice to craft and support a bill that barred genital inspections. He had the choice to craft and support a bill that exempted elementary school students.
He didn’t. He made a conscious choice to support the law as it stands.
Where this leaves Kansas parents, kids and legislators
Let me make something clear. I do not believe that most legislators in the Kansas Statehouse wanted to legalize the abuse of suspected transgender children through inspections of their genitalia.
But they didn’t take steps to explicitly prevent that from happening.
The law says what the law says. Those who supported it, and those who voted for it, said what they said. Rules will come in time. The rest of us have to figure out how to move ahead in a landscape shadowed with fear and uncertainty.
Clay Wirestone is Kansas Reflector opinion editor. Through its opinion section, Kansas Reflector works to amplify the voices of people who are affected by public policies or excluded from public debate. Find information, including how to submit your own commentary, here.
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