LGBTQ activists have said Republican lawmakers' views on gender and sex are outdated. (Sherman Smith/Kansas Reflector)
TOPEKA — The Republican-dominated Legislature legally defined women by reproductive ability, using an extreme right-wing group’s explanations of gender and sex to classify Kansans as either women, men or, in an third category, disabled under a new anti-trans law.
Senate Bill 180 — which took effect July 1 — was billed as a “women’s bill of rights,” under the assertion that defining women through “biological sex” is necessary to protect women in areas such as sports, locker rooms and bathrooms.
No Republican supporters of the bill could point to evidence of transgender women being a danger to women in these spaces, or any evidence of transgender women taking scholarships or athletic opportunities away from Kansas women. LGBTQ activists and civil rights groups called the law a thinly veiled attempt to harass transgender Kansans.
While Democratic Gov. Laura Kelly said her administration won’t implement key provisions of the law, the legislation provides definitions of “male” and “female” that LGBTQ advocates and scientists say are problematic, confusing and false.
“I think that the Legislature is attempting to simplify something that they’re not experts in,” said Melissa Stiehler, of Loud Light, an advocacy group that focuses on civic engagement of youth. “They’re not going to be able to craft legislation that’s going to address all of the complexities of genetics and gender and sex, and both the scientific and social implications behind all of those things.”
Under the law, a woman is someone whose reproductive system is designed to produce ova, and a man is someone whose reproductive systems are designed to fertilize ova. Anyone who doesn’t fit into these classifications is shuffled into the “disabled” category.
The law specifies that “an individual born with a medically verifiable diagnosis of “disorder/differences in sex development” shall be provided legal protections and accommodations afforded under the Americans with Disabilities Act and applicable Kansas statutes.”
To justify these designations and further a message invalidating nonconforming identities, some of the state’s top Republicans doubled down on their ideas of “biological sex” and “gender,” arguing people can present as whatever gender they want but cannot change biology, and that biology defines whether someone is male or female.
During a June 26 news conference on the law, Attorney General Kris Kobach, along with Sen. Renee Erickson, R-Wichita, and Reps. Barb Wasinger, R-Hays, and Tory Blew, R-Great Bend, repeatedly pushed this anti-trans argument.
“Truth matters,” Erickson said. “Biology matters. You can choose whatever name you want. You can choose to live however you want. That does not make you a woman. Hence SB 180.”
Wasinger said it was OK to “dress as a man or a woman, depending on who you are.”
“But ‘biological sex’ is a scientific fact,” Wasinger said. “It’s binary — male or female.”
This explanation leaves out people with chromosomal variations, such as intersex people, or people with diverse gender identities, such as transgender or nonbinary people, and goes against scientific and social theories on biology.
Here’s what Kansans should know about gender, sexuality and other terms currently being debated by lawmakers.
What is “biological sex”?
Biological sex, or sex assigned at birth, is the sex assigned to infants based on the physical characteristics they are born with, such as chromosomes, reproductive organs and hormones, according to the World Health Organization.
Infants are given a status of male, female or intersex based on these characteristics, though this label might not perfectly sum up all of the person’s biology.
What is gender?
Gender refers to socially constructed characteristics of women and men, such as socially determined roles for men and women and the relationships of and between groups of women and men, as defined by WHO. Because gender is a product of society, gender can vary over different time periods and places.
What is gender identity?
Gender identity is a person’s internal sense or idea of their gender, according to the National Center for Transgender Equality.
What is gender expression?
Gender expression is how a person publicly expresses or presents their gender, in terms of behavior and outward appearance, such as hair, outfits, and pronouns and name use, among other gender signifiers.
Why are lawmakers getting involved with this?
When asked why it was appropriate or necessary for the government to adopt SB 180, Erickson deflected by asking Kansas Reflector about gender roles.
“What is a woman?” Erickson asked several times throughout the June 26 news conference. Erickson’s question is also the title of a right-wing film on gender ideology panned by critics.
Kobach said the Legislature had to define these terms because of a culture shift.
“For thousands of years, or at least in the United States for hundreds of years, the definition of sex was very clear and very simple and understood by all, but that’s not where we are right now, so the Legislature chose to have our laws reflect biological fact rather than a person’s chosen expression of identity,” Kobach said.
LGBTQ activists have disputed Kobach’s statement.
“That’s historically inaccurate,” Stiehler said. “To claim that their belief system has been the one true belief system is not only inaccurate but offensive.”
Where did this law come from?
The model legislation for SB 180 comes from Independent Women’s Voices, a far-right group that has a long history of opposing women’s rights, including the Equal Rights Amendment and equal pay.
The group introduced the “women’s bill of rights” in 2022 as a way to counteract the spread of “transgender ideology,” a phrase used by hate groups in an attempt to promote fear of transgender people. The model legislation was part of the group’s multifaceted campaign against the transgender community.
Kansas legislators initially debated a nearly identical version of the IWF bill at the beginning of the 2023 legislative session, including a section that stated men are “on average, bigger, stronger and faster than females.”
What happens next?
Kobach said he will take Kelly to court over her interpretation of SB 180.
The governor announced last week that state agencies will continue to follow federal protections and enforce the right to gender-affirming birth certificates and driver’s licenses for transgender Kansans.
Kobach has pointed to a portion of the bill stipulating that any agency, office or organization that collects vital statistics has to identify the person as either male or female based on designation at birth as justification for reverting transgender people’s gender markers on these legal documents.
The right to change gender markers on birth certificates was confirmed in 2019 as part of an agreement in a federal lawsuit. Kobach’s office has asked the federal court to nullify the agreement.
“I will take her to court and ensure that the law is enforced as it is written. It is a sad state of affairs when a governor instructs state agencies to defy the law. It’s not just about SB 180, it’s about the rule of law itself,” Kobach said in a statement distributed Friday in the Kansas GOP newsletter.
The City of Lawrence and civil rights attorneys have concluded the law can’t be used to ban transgender people from specific spaces, despite the language in the bill suggesting spaces like bathrooms should be segregated based on “biological sex.” Their conclusion is based on the lack of enforcement mechanisms or penalties specified in the bill language.
“SB 180 contains no enforcement mandates, and the Lawrence, Kansas, Police Department will not arrest any person for using a bathroom or public facility that aligns with their gender identity,” city leaders announced June 16.
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