Just days before the “Women’s Bill of Rights” law goes into effect on July 1, the American Civil Liberties Union and the Kansas National Education Association (KNEA) sent a joint letter to school administrators blatantly telling them to ignore the law.
“During the 2023 Kansas legislative session, the legislature passed SB 180 over Governor Kelly’s veto. SB 180 is a definition-based bill that provides ‘a meaning of biological sex for purposes of statutory construction,’” the letter reads. “This bill does not have any enforcement mechanisms and does not provide for any penalties, civil or otherwise, for agencies, businesses, school districts, or other entities that decline to change their policies to adopt the definitions contained in SB 180.”
The Women’s Bill of Rights stipulates that an individual’s “sex” means an individual’s “sex” at birth, either male or female. A joint statement from House Speaker Dan Hawkins, Speaker Pro Tem Blake Carpenter, and Majority Leader Chris Croft at the time of passage said, “The Women’s Bill of Rights protects the right to privacy and safety for females in restrooms, domestic violence shelters, rape crisis centers, prisons, locker rooms, and other areas where biology, safety, and/or privacy are involved.”
Brittany Jones, director of policy and engagement at Kansas Family Voice, which helped move SB 180 forward, took exception with the ACLU and KNEA telling schools they do not need to follow the law.
“You have another example of an activist ACLU and KNEA trying to tell schools what to do, and try to impose their version of the law on all school systems in Kansas beyond the realm of what any court has said, or any government body has said,” she said in a phone interview Thursday.
ACLU, KNEA push own policy ideas in letter
The letter says “Kansas school districts may receive policy recommendations from outside entities or organizations that encourage them to adopt facility policies that discriminate against transgender students or employees, or individual districts or buildings may be considering taking such action on their own. These recommendations may sow confusion regarding school districts’ obligations under SB 180, and/or how to comply with nondiscrimination protections consistent in federal law.”
In a footnote, the groups say they are not making policy suggestions: “Please note that this letter does not provide policy recommendations regarding a district’s implementation of SB 180’s subsection (c) regarding collection of vital statistics information. Rather, this letter seeks to clarify that SB 180 itself does not require a district to adopt policies that exclude or single out transgender students or employees for different treatment, and that adopting such policies would violate your district’s legal obligations owed to LGBTQ+ students and employees.”
But they then go on to suggest federal law would require districts to ignore state law, and then provide suggestions to use model policies from groups like “The National Association of Secondary School Principals,” as well as distorting what federal law and policy actually say.
For example, KNEA and the ACLU state, in bold “The federal government has made clear that public school districts violate the U.S. Constitution and Title IX when they try to exclude transgender students from sex-segregated facilities that align with their gender identity.”
However, further down in the paragraph they admit they are referencing proposed regulations which have not yet taken effect, and which will likely — and in some cases already have been — challenged in court. Indeed, the 11th Circuit Court of Appeals says Title IX rules against gender-based discrimination do not include “gender identity.”
ACLU and KNEA ignore the 11th Circuit ruling, writing, “This final rule is anticipated to be released in October 2023, and once finalized, will provide further authority that trans students’ rights are protected under federal antidiscrimination law,” the letter reads.
Jones took exception to the policy suggestions as well.
“They’re citing all sorts of activist groups, all sorts of professional groups that are not rulemaking groups,” she said. “They’re also citing a proposed rule from the Biden administration, that more than likely will be unconstitutional in Kansas. They’re just trying to scare … like you’ve seen similar groups do on religious freedom fronts … schools — who don’t have the resources to fact check them — into doing what they want.
Kansas Senate President Ty Masterson also took exception.
“While it is not shocking that the ACLU would encourage entities to undermine the Women’s Bill of Rights, the implication that laws that protect biological women and girls are somehow discriminatory demonstrates just how extreme and out of touch their rhetoric has become,” he said in a statement.
Gov. Laura Kelly states she will not enforce SB180
In a non-binding opinion earlier this week, Kansas Attorney General Kris Kobach said changes would have to be made to any state record in which “gender identity” and biological sex do not match.
Thursday, Kelly issued a statement which read in part: “I have directed the agencies to follow SB 180 according to their legal counsel’s interpretation of the law. While my administration and the Attorney General’s Office have had many conversations about the law, KDHE and KDOR disagree about its impacts on their operations and will instead keep in place their policies regarding gender markers on birth certificates and driver’s licenses.”
Kobach’s response? “We will see her in court.
“The Governor has stated that SB 180 changes nothing with respect to drivers licenses and birth certificates,” he said. “That is nonsense. The Legislature passed SB 180 and overrode Governor Kelly’s veto specifically to ensure that those documents reflect biological sex at birth. The Governor doesn’t get to veto a bill and then ignore the Legislature’s override. She is violating her oath of office to uphold Kansas law.”
