With only two weeks left in the Kansas legislation session, state lawmakers have introduced a pair of bills that would prohibit transgender students from using restrooms that match their gender. The “Student Physical Privacy Act” would apply not only to public schools, but all public universities in the state as well, guaranteeing that anyone who saw someone transgender in the bathroom could sue their school for $2,500 for every time that it happened.
The complementary bills (SB 513 and HB 2737) declare in no uncertain terms that transgender students are going to harm other students just by using the same facility alongside them. “Allowing students to use restrooms, locker rooms and showers that are reserved for students of a different sex will create potential embarrassment, shame, and psychological injury to students,” they read.
Like bills proposed in other states, these measures attempt to define “sex” in a narrow way — in this case, “the physical condition of being male or female, which is determined by a person’s chromosomes, and is identified at birth by a person’s anatomy.” The definition ignores the many genetic and anatomic variations that can actually occur in how sex actually presents itself and, by design, erases the significance of transgender identities entirely. The explicit goal is to “maintain order and dignity in restrooms, locker rooms, showers and other facilities where students may be in various states of undress in the presence of other students.”
If transgender students request accommodations, they can only be provided “access to single-stall bathrooms; access to unisex bathrooms; or controlled use of faculty bathrooms, locker rooms or shower rooms.” As experts pointed out when a similar provision was included in South Dakota’s bill, this would out, segregate, and ostracize transgender students who might already be vulnerable to bullying.
But transgender students are apparently such a threat to their peers that these lawmakers believe anyone who has to be in a restroom for them should have grounds for a suit. If a student encounters someone “of the opposite sex,” they have a private cause of action against the school. The aggrieved student is entitled to $2,500 for every time they saw someone transgender in the restroom, plus “monetary damages for all psychological, emotional and physical harm suffered as a result of a violation of this section.”
This particular provision would open a significant liability to many of the state’s universities. Schools like the University of Kansas, Kansas State of University, Washburn University, and several community colleges have policies on the books protecting against discrimination based on gender identity. Any transgender students currently depending on those protections would immediately open the school to lawsuits from their classmates.
Because the bills were introduced so late in the legislative session, they don’t even have specific sponsors; they had to be introduced by committees. Both the House and Senate, and thus both committees, are controlled by Republicans. April 1 is the deadline for the bills to receive any consideration before the session is over.
One of the only lawmakers to speak out in favor of the bills is Sen. Mary Pilcher-Cook (R), who insists, “Parents have reached out afraid for their children’s safety and they do not want attention for fear of being called a bigot, this legislation ensures accommodations, while still protecting everyone’s privacy rights.”
According to Rep. Stephanie Clayton (R), the bills are a distraction from the larger budget priorities still facing the legislature this session. “No matter how you feel on the issue,” she said, “this demonstrates a distinct lack of focus.”
That doesn’t mean they couldn’t pass, however. Kansas lawmakers already passed an anti-LGBT bill that targets college student groups. Under that legislation, even if the university has an LGBT-inclusive nondiscrimination policy on the books, it must still recognize and support student groups that wish to discriminate against LGBT students. That would mean that LGBT students would pay student fees that would then go to organizations that they would not have equal access to joining. That legislation passed 30–8 in the Senate last year and then 80–39 by the House this year before being sent to Gov. Sam Brownbeck (R) for his signature last Friday.
This now puts Kansas in the position of becoming the first state to pass such a sweeping anti-transgender bill. South Dakota’s similar bill was vetoed, and Tennessee’s bill actually died in committee on Tuesday.