EXPLAINED: Kansas bans trans athletes from girls’ and women's sports, overriding governor's veto

The controversial law enforces biological gender categories in school sports.

On April 5th, the Kansas Legislature passed legislation which will have the effect of barring transgender athletes from girls’ school and university sports. The Republican-dominated legislature overrode the veto of the governor, Laura Kelly, who is a Democrat.

In Kansas, a bill ordinarily requires the signature of the governor, but the Legislature (consisting of House of Representatives and the Senate) can nonetheless pass legislation over the governor’s objections with a two-thirds majority in both houses.

The Fairness in Women's Sports Act of 2023 (Kansas) is very short, and bases its actions on of biological sex, which it defines as `̌the biological indication of male and female in the context of reproductive potential or capacity, such as sex chromosomes, naturally occurring sex hormones, gonads and unambiguous internal and external genitalia present at birth.”

The Act does not specify which of these factors will prevail if they conflict. For example, it is not clear whether an individual with complete androgen insensitivity (who will have XY chromosomes but female genitalia and secondary sex characteristics) will be classified as male or female on this basis. It is also not clear how schools and universities are meant to ascertain this information regarding chromosomes, hormones, and genitalia.

Critics of the law have accused it of authorising ‘genital inspections’, but because the law focuses on genitalia as present at birth, schools are more likely to demand original birth certificates.

The Act requires that all state educational bodies with sports teams, along with any private schools or universities competing against them, classify all sports as ‘female’, ‘male’, or ‘mixed’. The last two categories, despite their names, are not required by law to be of only one ‘biological sex’. Female competitions, however, are open only to the female sex, as defined by the act.

The act makes all state schools immune from investigation or censure for excluding transgender girls from female competitions, presumably to exempt such competitions from otherwise applicable non-discrimination law.

The most unusual feature of the act is in § 3, which sets out a system of private enforcement. This means that instead of the government enforcing the law, individual citizens can sue in cases of non-compliance. Specifically, girls who are ‘depriv ed of an athletic opportunity,’, like not getting a medal because they finished one place behind a trans girl, have the right to sue, and recover damages, legal fees, and obtain an injunction to stop the violation of the law. This private enforcement model appears to be inspired by a Texas law enabling private enforcement of an effective ban on early abortions, although this law has now been rendered moot by the overturning of Roe v Wade.

This is not normally how laws are enforced, and effectively turns ‘biologically female’ student athletes into bounty hunters, allowing them to seek out transgender athletes that they compete with. However, it is not clear if, in practice, there will be any lawsuits, since the number of trans athletes is likely very small and schools are likely to pre-emptively comply with the legislation.

In another unusual step, the law anticipates that it may be struck down by the courts. The final section provides that the provisions are severable, which means that if any one part of the act is found to be unconstitutional or invalid, the rest of the act continues to be in force.

This kind of clause is necessary because the US lacks the equivalent of the Australian Constitution’s Section 109, which confines the effect of a state’s law being struck down by the High Court of Australia for being inconsistent with Commonwealth legislation to only those provisions which are inconsistent, wherever possible. Check out Common(wealth) Knowledge #3 for more on this.

Constitutional challenges are likely to be founded in the equal protection under the law guaranteed by the federal constitution’s Fourteenth Amendment, as well as the analogous guarantee in the state constitution. The legislation may also violate the Biden administration’s proposed new rules for transgender athletes. These rules are to be made under the powers granted by the federal Congress under Title IX which prohibits discrimination on the basis of sex in educational institutions. These would overrule the act because the US Constitution provides that federal law and rules made under it prevail over state law.

The law is therefore only the beginning of a longer fight over school sports in Kansas, and a sign of the direction of travel of this issue in the US. The culture war over sports is now leaving the political arena, and becoming a judicial and legal issue.

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Sources:

Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12.

Dobbs v Jackson Women's Health Organization (2022) 597 US ___.

Fairness in Women's Sports Act of 2023 (Kansas).

Kansas Constitution.

Roe v Wade (1973) 410 US 113.

Title IX of the Education Amendments of 1972, 20 USC §§ 1681-1688.

United States Constitution.

Elijah Granet’s ‘Better AustLII’ web extension.