TOPEKA — On Thursday, Isaac Johnson changed his birth certificate.
Johnson, a 24-year-old trans man, is one of many transgender Kansans rushing to get their gender markers changed before an anti-transgender law takes effect in July.
“After an hour and half, we got the whole certificate reprinted, I was done, that was it,” Johnson said.
He’s also got an appointment with the DMV scheduled for Monday to change his driver’s license. A lifelong Kansan, he wasn’t in any rush to change his markers until the passage of Senate Bill 180, a wide-ranging law targeting the transgender community.
Following the law’s approval, Johnson joined the No SB 180 group in Lawrence. The group is lobbying the city to make Lawrence into a sanctuary city for transgender and gender nonconforming people, with members encouraging the city to use a “safe haven” ordinance they drafted for protecting people from anti-LGBTQ legislation.
During a Tuesday city commission meeting, transgender Kansans and allies spent hours lining up to advocate for the sanctuary city idea, holding up signs and standing outside the City Hall, waving large rainbow flags to cars speeding past. At the Kansas Statehouse, transgender rights campaigners have shown up frequently to protest SB 180, with another rally planned early next month.
All of this action is over a law that — in large part— cannot be enforced but may have wide-ranging consequences as one of the first major moves from a Republican-dominated state Legislature intent on passing anti-transgender laws.
The Legislature narrowly passed the measure in late April, after overriding Gov. Laura Kelly’s veto of the anti-transgender law. Kansas Republicans justified the law as a “women’s bill of rights,” claiming women are in danger of having their rights usurped by transgender or nonbinary individuals.
While the wording of wide-sweeping Senate Bill 180 is ambiguous, legal authorities say the legislation can’t actually be used to ban transgender people from specific spaces.
The law says facilities for separate genders — as it defines them — “are substantially related to the important governmental objectives of protecting the health, safety and privacy of individuals in such circumstances.” It defines women as those with the ability to produce eggs for reproduction and men as those whose reproductive systems are developed to fertilize those eggs.
The legislation also classifies people with developmental differences, including those who are intersex, as disabled. Disability rights and equality rights activists have called that definition wildly offensive.
But the law doesn’t have any way to enforce this divide. Attorney Ellen Bertels, a LGBTQ rights advocate working for Kansas Legal Services, said the law doesn’t have any avenues for enforcement.
“It’s kind of like the old adage, a rule without a penalty isn’t a rule at all,” Bertels said. “The language of the bill does seem to say folks should use the facilities that align with their sex assigned at birth, but there’s no consequence for the failure to comply with that language. So there’s no criminal penalty. There’s no fine or fee attached. There’s no way for someone, say to another civilian, to report a trans person for using the wrong bathroom. There’s no bounty.”
In Lawrence, the police department reassured community members that no one will be arrested for using bathrooms or public facilities that align with their gender identity and that SB 180 wouldn’t be used as justification for arrest.
“We don’t want anyone to feel unsafe,” said Police Chief Rich Lockhart. “We’re here to help everyone live peacefully, and that includes those in our trans and gender non-conforming community. If anyone feels they’re being harassed or threatened for using the bathroom of their choice, call us.”
The law is expected to affect gender marker changes due to a portion that stipulates any agency, office or organization that collects vital statistics has to identify the person as either male or female based on designation at birth.
It’s likely that the state will no longer change gender markers on state documents after July, but even this part of the legislation is subject to scrutiny, as it could potentially conflict with federal laws on employee discrimination.
“The state has to balance those two things,” Bertels said. “They have to say, ‘OK, this federal law says we can’t discriminate against trans people. Misgendering them consistently on their workplace document is probably considered discrimination under federal law. But there’s a state law now that says that we have to do that. So which one of these two is more important to us? Which one of the two frankly, are we more afraid?’’
With just a week before the law goes into effect, the ACLU and Kansas attorney general have both remained silent about the law’s applications.
Kansas Attorney General Kris Kobach said he will release a formal legal opinion on SB 180 Monday. Spokespeople from his office haven’t responded to previous Reflector inquiries on the scope of the bill.
Esmie Tseng, a spokeswoman for the American Civil Liberties Union of Kansas, said the ACLU legal team was still considering legal approaches, but she didn’t want to speculate about the bill’s effect.
“We are also very reluctant to speculate on or state the specific consequences because of the significant lack of clarity inherent in SB 180, and there is potential for stoking more fear in the community than already warranted by attempting to make predictions about it,” Tseng said.
While the full implications of recently passed legislation is still unknown, the chilling effect on transgender Kansans has been significant.
“Folks are trying to grapple with that, also grappling with the sort of rational gut instinct, but their ability to live in the world is being restricted day by day and hour by hour, and as much as they may love the place that they live and as much as they may want to stay here for family, friends and jobs. It no longer feels safe to do so for a lot of folks,” Bertels said. “I hear a lot of fear.”
Kansas became the 20th state to pass a transgender student athlete ban into law in April, with transgender girls blocked from playing women’s sports from kindergarten through college.
While Senate Republicans failed to override Kelly’s veto of a bill essentially banning gender-affirming care for Kansans under the age of 18, lawmakers succeeded in passing a bill requiring local school boards to implement requirements separating students based on “biological sex” during school-sponsored overnight stay, and another bill requiring county jails to separate inmates by sex assigned at birth.
While the current political climate is restrictive, Johnson believes transgender rights will be widely accepted in the future.
“Trans people are a new frontier,” Johnson said. “After some time, one day people will look back and say, ‘Wow, we were kind of rude to be so scared about this.’”
Kansas Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: [email protected]. Follow Kansas Reflector on Facebook and Twitter.