The Doctor Will See You Now: Has the Kansas Legislature Opened The Door To Controversial Physical Inspections in the Wake of House Bill 2238?

By: Phoebe Cooper                                                                       Posted: 05/18/2023

After many failed attempts, on April 5, 2023 Kansas legislators successfully enacted a bill banning transgender athletes in women’s sports despite Gov. Laura Kelly’s veto.[1] The Kansas legislature voted to override the governor’s third veto to ban transgender athletes just 24 hours after lawmakers passed the controversial ‘bathroom bill.’[2] As soon as the news came out, social media was in a frenzy.[3] Ambiguities surrounding the meaning of the law, combined with testimony from Republican legislators and the uncertainty surrounding how its provisions will be enforced, suggest state legislators have authorized physical inspections on children.[4]

The Law and Its Ambiguities

Opponents of the new bill have repeatedly raised their fears and concerns that the ambiguities of this new law could mean inspections for small children.[5] Even though the law does not explicitly force or require such exams, advocates for the bill have refused to revise the bill to forbid them explicitly.[6] The Kansas law applies to all students, from kindergarten through college.[7] Again, there was strong opposition to the bill, with lawmakers pushing revisions that focused on athletes competing in high school and college competitions; those pleas were rejected.[8] The passage in question reads as follows:

Sec. 3.  (a) Interscholastic, intercollegiate, intramural or club athletic teams or sports that are sponsored by a public educational entity or any school or private postsecondary educational institution whose students or teams compete against a public educational entity shall be expressly designated as one of the following based on biological sex:

(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.[9]

So, what does enforcement of this bill look like? How and what methods will schools be put into place to verify the gender of their athletes? And does this mean parents of other pupils will be able to challenge the gender of players on sports teams?[10] With the bill having just been announced in the past week, the answer to those questions remains unclear; however, for now, those assurances are in the hands of the colleges themselves.[11]

Republican Sponsor Barbara Wasinger acknowledged that ‘medical examinations’ could be necessary.

The bill’s sponsor, Representative Barbara Wasinger, engaged in an extended debate regarding the bill with Representative Brandon Woodward.[12]  During that time, she stated that students might need to be examined by a doctor for an official gender determination.[13] When Woodward questioned how an athlete should ‘prove’ their gender without a birth certificate, Wasinger stated that medical examinations by doctors would be filled out for sports physicals, as is common practice for any student who wants to play sports in the state.[14] While none of this is specified in the bill, Wasinger’s reply stated that if there is a challenge to a student’s gender, verification would be obtained through medical examinations.[15] Senator Carolyn McGinn, who also voted for the legislation, with her words revealing a deep frustration regarding the inclusion of small children.[16] Yet when It came down to the vote, she still voted for its implementation, leaving many wondering if these worries were raised because there was a basis for her concerns.[17]

On April 6^th, Speaker of the House, Dan Hawkins, pushed back when parents began questioning the motives for the bill’s passage.[18] He tweeted that he defended the bill stating there is no language or intent in the Fairness in Women’s Sports Act to require genitalia inspection, which will not be the bill’s outcome.[19] Many have condemned Speaker Hawkin’s tweet, calling his statement untrue, with the intent to deceive.[20] The law requires transgender girls and women to be barred from girls’ and women’s sports, and therefore, to determine who is and is not a transgender woman, gender must be established in some way.[21] Those who opposed the law quickly asserted that Hawkins could craft and support a bill that banned physical inspections outright.[22] Yet, he consciously decided to support the law as written.[23]

What is next for Kansas Parents, Kids, and Legislators?

In a social climate filled with ever-mounting tensions, it is understandable why many LGBTQ+ activists fear what this bill’s enforcement looks like for transgender women who want to compete in high school and college sports.[24] While most supporters have outrighted stated that they have not legalized the physical inspections of transgender athletes in Kansas, they also have not taken steps to explicitly prevent that from happening.[25] For right now, the law says what the law says. As citizens of a democracy, we must respect the legislative process and trust that discriminatory laws will be challenged and overridden through the correct channels.[26]

[1] See John Hanna, Kansas Governor Laura Kelly Vetoes Bill on Transgender Athletes, Sets up Fight With Kansas Legislature, KMBC News (Mar. 17, 2023), https://www.kmbc.com/article/kansas-governor-laura-kelly-vetoes-trans-athletes-ban-bill/43352394 (explaining how when Kansas high school and college students return to campus this fall, transgender athletes will no longer be eligible to compete in girls’ or women’s sports). In what many call a “major defeat” for Kelly and the LGBTQ rights movement, the House voted 82 to 40, and the Senate voted 28 to 11 to override the governor’s veto and enact the ban after little debate.  See id. (explaining the voting distribution between the two parties).

[2] See id. (explaining history of Kelly’s veto’s); see also, John Hanna & Andrew DeMillo, Kansas Passes Trans Bathroom Bill; Arkansas Oks Own Version, Associated Press, (Apr. 4, 2023), https://apnews.com/article/transgender-rights-bathroom-bill-kansas-cbdc14be5bf1fb6e1a0749cad52e8ebc (explaining Kansas’s recently passed a bill to impose some of the nation’s broadest bathroom restrictions and ban transgender people).  The bathroom bill would prohibit transgender people from using bathrooms that align with their gender identities while preventing them from changing their names or genders on their driver’s licenses.  See id. (explaining even though the bill is expected to be vetoed by Governor Kelly, the Republican-led Legislature could also override the veto).

[3] For further examples of social media discussion, see infra note 19-20.

[4] See Damakant Jayshi, Did Kansas Legislature Authorize ‘Genital Inspections’ of Students to Play Sports?, Snopes (Apr 6, 2023), https://www.snopes.com/news/2023/04/06/kansas-legislature-sports/ (highlighting critics call this policy discriminatory, alleging this legislation exposes all girls and women to potentially invasive examinations just to be able to participate).

[5] See Sophie Perry, Kansas Anti-Trans Bill Could Lead To ‘Genital Inspections’ Of Kids’ PinkNews (Apr 6, 2023), https://www.thepinknews.com/2023/04/06/kansas-trans-sport-ban-genital-inspection/ (stating Representative Barbara Wasinger “was unable to recall” “how the legislation would be enforced.”).  She told the committee inspections would be done at the same time as a student’s physical examination, which is already routine procedure for any student who wishes to play sport in the state of Kansas.  See id. (further explaining the purpose of her legislation).

[6] See Rebekah Chung, Genital Exams? New Rules? How Trans Athlete Ban Could Impact Kansas Sports, KSNT.COM (Apr. 14, 2023, 10:11 AM), https://www.ksnt.com/capitol-bureau/genital-exams-new-rules-how-trans-athlete-ban-could-impact-kansas-sports/ (explaining those defending HB 2238 argued banning transgender athletes will preserve fair competition and opportunities for girls and young women).

[7] See id. (explaining under Kansas’s new law, “student-athletes will be separated based on biological sex determined at birth. and [t]he association will be required to designate teams as male, female, or coed/mixed.”).

[8] See James Factora, Kansas Governor Becomes The Fourth to Veto an Anti-Trans Bill This Year, THEM (Apr. 19, 2022), https://www.them.us/story/kansas-governor-laura-kelly-vetoes-anti-transgender-sports-bill (claiming “state’s GOP was using ‘critical race theory’ and ‘gender ideology’ to stoke political division.”). “‘We all want a fair and safe place for our kids to play and compete,’ . . . ‘however, this bill didn’t come from the experts at our schools, our athletes, or the Kansas State High School Activities Association. It came from politicians trying to score political points.’” See id. (quoting Rep. Barbara Wasinger).

[9] See Governor Laura Kelly, Message From The Governor Regarding Veto of House Bill 2238, http://www.kslegislature.org/li/b2023_24/measures/documents/hb2238_enrolled.pdf (last visited Apr. 20, 2023) (noting the bill in its entirety, along with a message from Governor Kelly regarding its veto).

[10] See id. (explaining enforcement of this policy is uncertain and as Governor, she condemns the passing of this legislation).

[11] See KSHSAA Policy For Transgender Student Participation, KSHSAA, https://www.kshsaa.org/public/pdf/transgenderpolicyrecommendations.pdf (last visited, Apr. 17, 2023) (providing guidance to member schools to which this issue could arise).

[12] See Sherman Smith, Kansas House Debate on Latest Installment of Trans Athlete Ban Produces Laughter and Name Calling, Kansas Reflector (Feb. 23, 2023, 8:20 AM), https://kansasreflector.com/2023/02/23/kansas-house-debate-on-latest-installment-of-trans-athlete-ban-produces-laughter-and-name-calling/ (stating the debate lasted 90 minutes).

[13] See id. (highlighting the potential consequences of making children go through physical examinations before being allowed to participate in sports).

[14] See KS Legislature, House Chamber Proceedings 02/22/2023, YouTube (Feb. 22, 2023) https://www.youtube.com/watch?v=KGAzsPA9Vqg&t=29335s (elaborating on key points of Bill 2238).

[15] See id. (“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.”).

[16] See Clay Wirestone, Kansas AntiTrans Sports Law Opens the Door for Genital Inspections of Kids. That’s the Simple Truth, , Kansas Reflector (Apr 9, 2023, 3:33 AM). https://kansasreflector.com/2023/04/09/kansas-anti-trans-sports-law-opens-door-for-genital-inspections-of-kids-thats-the-simple-truth/ (“[m]y concern for those little kids who should not even have to worry about this issue because they should just be running around like little beehives on the soccer field and having fun.”).

[17] See Andrew Bahl, Kansas Senate Advances Transgender Athletes Ban: ‘That is Not The State I Want to be a Part of’, The Topeka Capital-Journal (Mar. 22, 2022, 12:35 PM), https://ourcommunitynow.com/news/kansas-senate-advances-transgender-athletes-ban-that-is-not-the-state-i-want-to-be-a-part-of (quoting Senate Minority Leader Dinah Sykes, “When we pass legislation like this we are telling our transgender community that they’re not good enough to be in Kansas, we don’t [want] them to participate and they don’t belong . . . .”).

[18] See Andrew Bahl and Jason Tidd, Kansas Becomes Latest State With Transgender Athletes Ban, As Lawmakers Override Gov. Laura Kelly, The Topeka Capital Journal, (Apr 5, 2023) https://www.cjonline.com/story/news/politics/government/2023/04/05/lawmakers-enact-transgender-athletes-ban-over-veto-of-gov-laura-kelly/70068196007/ (quoting House Speaker Dan Hawkins, “We proudly stand with the female athletes across Kansas in their pursuit of athletic awards, opportunities, and scholarships and believe they deserve every chance at success afforded to their male counterparts.”). Three Republican lawmakers, however, voted against party lines. See id. (referencing Senator Brenda Dietrich and Representatives Mark Schreiber and David Younger).

[19] See Dan Hawkins, (@DanHawkinsKS), Twitter (Apr. 6, 2023, 6:34 PM), https://twitter.com/DanHawkinsKS/status/1644106415949205507?cxt=HHwWhsC—eGEhdEtAAAA (ensuring physical inspections will not take place upon implementation of the ban); see also Natalie Wallington (@narwhallington), Twitter (Apr. 6, 2023, 5:03 PM), https://twitter.com/narwhallington/status/1644083543012786177?cxt=HHwWgoC-pbHR-tAtAAAA (supporting Hawkins claims that specific enforcement guidelines have yet to be decide).

[20] See Melissa Stiehler, (@MelissaStiehler), Twitter (Apr. 6, 2023, 5:37 PM), https://twitter.com/MelissaStiehler/status/1644092001179119618 (opposing Hawkins claims); see also Dianna Lee, (@dianaelee), Twitter (Apr. 6, 2023, 5:42 PM) https://twitter.com/dianaelee/status/1644093265187155969 (arguing HB 2238 is vague and offers school districts no guidance on how to implement this policy).

[21] See Chung, supra note 6 (stating KSHSAA plans to meet later this month to address the impact the new law will have on current policy).

[22] See id. (explaining too much discretion and ambiguity is left in this law as currently written).

[23] See Hawkins, supra note 19 (defending and supporting the implementation of this legislation).

[24] See Stop The Anti-Transgender Bill in The Kansas House, Kelly Toland, https://www.laurakellyforkansas.com/action/kelly-transban-bill-petition/ (last visited Apr. 17, 2023) (allowing people to add their names to the petition to stop HB 2238 from proceeding further).

[25] See KS Legislature, supra note 14 (elaborating on key provisions of Bill 2238).

[26] See Chung, supra note 6 (noting efforts to ban transgender athletes from women’s sports could also meet a roadblock from Title IX proposals from President Biden’s administration and the U.S. Department of Education is proposing new rules that would forbid schools and colleges across the U.S. from enacting outright bans on transgender athletes).