'Everyone's scared': Transgender Kansans brace for new law
By Rose Conlon / Kansas News Service
May 26, 2023, 6 a.m. ·
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WICHITA, Kansas — Thea Howard worried that coming out as a transgender woman would cost her the job she’s held for six-plus years.
“That was my fear — that I would be fired when I came out,” she said.
When it became unbearable to keep hiding who she was at work, she told the board members of the non-profit she directs in El Dorado. It went well — they were supportive and she’s relieved to finally be able to live authentically.
But Howard’s world has been thrown into new uncertainty as Kansas prepares to enact one of the most sweeping laws restricting transgender rights in the country.
In a matter of weeks she, and thousands more trans Kansans, will be barred from bathrooms, locker rooms, domestic violence shelters and other spaces that align with their gender identity.
They’ll likely lose the ability to change the gender markers on their official state documents. And they could have a harder time seeking legal redress for gender-based discrimination.
“Everyone’s scared,” Howard said. “I’ve seen parents of trans kids break down and cry for fear of their kids. A couple of friends are very seriously looking into moving out of Kansas.”
The law’s expansive reach — anywhere “biology, safety or privacy are implicated that result in separate accommodations” — coupled with a lack of clarity around how it will be interpreted and enforced has left transgender Kansans in the dark, trying to plan for a reality they don’t fully understand.
“It’s just so vague,” Howard said. “Which is difficult, because that leaves the brain a lot of room for super negative thinking and fear.”
While some trans Kansans are planning to flee the state, likely far more will stay. That’s set off a harried scramble for many to update driver’s licenses, map out safe public bathrooms and make other contingency plans before the law takes effect this summer. Others are considering slamming the breaks on their gender transition out of fear the law could put them in danger.
A new law
The law tethers the state’s legal definition of male, female, man and woman to a person’s sex assigned at birth: women are people whose reproductive systems produce ova; men are those whose reproductive systems fertilize ova.
Conservative lawmakers overrode a veto by Democratic Gov. Laura Kelly to enact the law, along with one that prohibits trans women and girls from playing on women and girls’ sports teams.
Supporters call it a “women’s bill of rights” and say it will help enshrine rights for cisgender women and girls while protecting them from threats of assault. In legislative debates, Republicans repeatedly argued cisgender women and girls should not have to encounter “biological males” in women’s restrooms.
“The idea that my 4-year-old granddaughter would have to go into a bathroom and possibly be exposed to a male — is that right?” Rep. Brenda Landwehr, a Wichita Republican, said during a committee hearing on the legislation.
Brittany Jones, a lobbyist for Kansas Family Voice, a conservative group that advocated for the legislation, said opponents’ alarm is unwarranted.
“This is not something that should be scary to people,” she said. “It's a very simple bill, and it protects women's rights and opportunities.”
Critics say it does little to protect women’s rights. Rather, they argue, it will profoundly limit the lives of transgender Kansans — magnifying the already disproportionate discrimination they experience on the job, at school and in everyday life.
“This is one of the most extreme measures in the country working to erase trans folks,” Rep. Brandon Woodard, a Lenexa Democrat, said during a Human Rights Campaign press call last week over a wave of legislation in Kansas, North Dakota, Montana and Tennessee targeting some transgender rights.
It’s set to take effect July 1, barring legal challenges. The office of Kansas Attorney General Kris Kobach stated in a fiscal note it’s likely that the law’s constitutionally would be challenged. The American Civil Liberties Union of Kansas — which indicated it would challenge the law as it moved through the Statehouse — has not yet announced a plan to do so.
A race to update IDs
For several years, Kansas has allowed residents to change the gender on their state IDs and birth certificates with a doctor’s note. Now, hundreds are rushing to do so in the weeks before the law takes effect.
Legal aid sessions helping people complete the paperwork before it’s too late have drawn record turnout with sometimes standing room only crowds.
With hundreds of people submitting applications in a short period of time, they’re crossing their fingers their paperwork can get processed before July 1.
A spokesperson for the Kansas Office of Vital Statistics, which maintains birth certificates and other state records, said the office’s legal team is reviewing the legislation to determine how to respond.
But legal experts expect the state to stop issuing gender marker changes when the law takes effect. They say it will likely not restrict name changes.
Ellen Bertels, the Kansas Legal Services attorney running the aid sessions, says having the wrong identity documents can make it harder for trans people to do basic things like use a credit card, purchase alcohol or board a plane. It also increases the likelihood they’ll face discrimination and harassment in public.
“It has a huge impact on someone’s life to be able to be accurately identified by their documents — and a huge impact not to be,” she said.
Like many trans Kansans, Howard is most concerned about how the law will impact her access to bathrooms. Locating a safe public bathroom is already a source of anxiety for many trans people, with some relying on websites or word-of-mouth tips for help. The new law will likely make that experience even more fraught.
Howard’s workplace has single-stall and all-gender options, but she’s worried about what will happen if she’s grocery shopping or visiting a restaurant and has to use a men’s restroom while presenting as a woman.
“If you have a long-haired person in a dress with jewelry and long nails walking into the men’s restroom, that opens them up to harassment and violence,” said University of Kansas law professor Kyle Velte. “There’s a real risk of sexual assault or other kinds of assaults.”
A trans man, Velte said, could face similar blowback if they walk into a women’s bathroom with men’s clothing and a full beard — especially in an environment where more people are paying attention to who uses which bathrooms.
Amanda Mogoi, a Wichita nurse practitioner who provides primary and gender-affirming care for trans people at M-Care Healthcare, says she sees higher rates of urinary tract, bladder and kidney infections in her trans patients because many are already scared to use public bathrooms. They sometimes wait until they can reach a bathroom where they know they’ll be safe or avoid drinking water during the day.
“It’s really dangerous,” she said. “I do worry that we’re going to see even more of that.”
Several of Mogoi’s trans patients are now planning to leave the state. Still others, she said, are so scared of the harassment they could face if they do comply that they’re considering halting their transition.
Mogoi said most of her patients who decide to detransition still identify as transgender, but stop their transitions for external reasons. Some lose their jobs or health insurance and can’t afford to continue treatment. Others find it too difficult to deal with discrimination in their daily lives.
“This is another one of those situations where that may become something people have to do,” she said, “not because somebody doesn’t identify as transgender, but because they’re not safe to be trans.”
That’s something that’s already crossed Dakota Meadows’ mind. He has known he’s a trans man for years now and has already socially transitioned, but he’s had to postpone medically transitioning due to the cost.
Now, he worries it could be dangerous to continue presenting as a man after the Kansas law takes effect, forcing him to use women’s bathrooms and locker rooms again.
“I fear I may have to regress my social transition soon to preserve my safety,” he said in an email. “I may never get to accomplish the transition to the me I want to be.”
The law is unusual in that it doesn’t specify any enforcement measures or create a crime for failing to comply.
That’s created broad uncertainty about how businesses, local officials and state agencies should respond, leaving trans people fumbling for signs about what they can expect once the law takes effect.
More than a dozen of the state’s largest employers and businesses — including Spirit AeroSystems, Cerner, Textron Aviation, Walmart and Koch — did not respond to questions from the Kansas News Service about how the law would affect workers and customers’ access to bathrooms and other facilities.
When a Sedgwick County Jail employee asked how the law would affect their use of workplace locker rooms, the sheriff's office told them they would no longer be able to use the facilities for the gender they identify with, jail administrator Jared Schechter said in an email. More than a week later, officials walked that back and said employees will be allowed to continue using the facilities for the gender they identify with.
Legal experts say it’s a preview of the chaos to come.
For nearly a decade, U.S. Labor Department officials have asked employers to give transgender workers access to restrooms that correspond with their gender identity, citing potentially serious health outcomes if employees avoid using bathrooms at work.
In 2021, the federal Equal Employment Opportunity Commission issued guidance that employers may not prevent workers from using bathrooms or locker rooms that align with their gender identity. A federal judge blocked those guidelines last year after 20 Republican attorneys general, including in Kansas, sued. An appeals court is now considering the case.
There’s no more clarity about whether customer-facing businesses have a duty to enforce the law, either.
“If a customer sees somebody that they suspect is trans going into a women’s restroom, do they have the right to go to the proprietor and say, ‘I want to enforce the Women's Bill of Rights?’” said Velte, the KU law professor. “That is very unclear.”
Last weekend, a woman was told she and her son, who is on the autism spectrum and requires her help using the bathroom, could not both enter a women’s restroom at the Wichita Public Library. A library spokesperson said the policy was not a response to the new law.
Transgender rights advocates say business owners concerned about the law can add single-stall restrooms — a potentially significant cost — or add “all-gender” signs to their current restrooms.
Still, Velte said, the law could have a significant impact even if nobody formally enforces it.
“Even if the law doesn't seem to have a lot of teeth to it, just the fact that it's now on the books will have a chilling effect on trans people in public spaces,” she said. “They're going to always be worried — is someone going to discover that they’re trans?”
And Velte says cisgender people who don’t conform to typical gender norms could also face scrutiny when they try to use gender-specific facilities.
“Anyone who is the parent, aunt, uncle or friend of a tomboyish girl should be worried that their daughter or niece might be targeted under these kinds of laws,” she said.
The law will likely prompt lawsuits over whether and how businesses and local officials choose to respond.
In the absence of clearly defined enforcement mechanisms, state attorneys general offices could have broader power to determine how laws are applied, according to Human Rights Campaign legal director Sarah Warbelow.
“If an agency was continuing to issue amended birth certificates for trans people, the Attorney General could go after the agency for doing so,” she told reporters on a call last week.
At a press conference earlier this month, Kris Kobach said the law’s enforcement actions remain unclear. But he’s repeatedly indicated support for similar legislation. He led a multi-state effort to oppose a Biden administration rule that would withhold federal Title IX funding from schools that prohibit transgender girls and women from competing on girls’ and women’s sports teams, as the “Women’s Bill of Rights” and another new law requires.
Majorities of Americans support many of the policies limiting transgender rights that gained steam this year in Republican-controlled state legislatures like Kansas, a recent survey by the Washington Post and the Kaiser Family Foundation found. That includes measures barring transgender women and girls from women and girls sports teams — like Kansas passed — and restrictions on gender-affirming care for minors — which Kansas lawmakers narrowly failed to pass over the governor’s veto.
But even wider majorities of Americans also support prohibiting discrimination against trans people in housing, at the workplace and at school, the survey found.
Kansas doesn’t have a law that specifically protects trans people from discrimination, but its Human Rights Commission has allowed them to file discrimination lawsuits in recent years.
The new law jeopardizes that ability to sue.
Legal experts, including Warbelow, say it’s one of the most immediate consequences of the new law.
“You don’t need an enforcement provision,” she said, “because it just means that the agencies and courts can no longer accept those claims.”
Rose Conlon reports on health for KMUW and the Kansas News Service.
The Kansas News Service is a collaboration of KCUR, KMUW, Kansas Public Radio and High Plains Public Radio focused on health, the social determinants of health and their connection to public policy.
Kansas News Service stories and photos may be republished by news media at no cost with proper attribution and a link to ksnewsservice.org.
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