TOPEKA, Kan. — Lane Rozin wakes up every day in fear.
As SB 180 — a new Kansas law that is among the most sweeping measures targeting transgender rights in the country – goes into effect on Saturday, Rozin is preparing to live a life that is more cautious.
“Now when I go out in public I will be concerned of am I safe enough to use this restroom? Is the staff in this building going to support that I use this restroom? If something bad happens, what do I do?” said Rozin, a 20-year-old trans man who lives in Lawrence and attends the University of Kansas.
“My number one concern is I will go into a men’s bathroom and I will be targeted physically, negatively.”
Democratic Gov. Laura Kelly took steps to aggressively push back against the law on Thursday, setting up a showdown with Republican state Attorney General Kris Kobach. State agencies will retain their current policies allowing trans residents to change the gender markers on their birth certificates and driver’s licenses, Kelly’s office said, in direct conflict with Kobach’s interpretation of the law.
Kobach says SB 180 prohibits state officials from any further changes to documents, and requires them over time to reverse previous updates.
Shortly after Kelly’s announcement, Kobach promised to sue.
“The Governor doesn’t get to pick and choose which laws she enforces just like I don’t get to choose which Kansas laws I defend,” Kobach said in a statement. “Gov. Kelly took an oath to execute Kansas laws, and that means restoring factual data on birth certificates and driver’s licenses that have been changed.”
Minutes later, Kobach issued a second, more mild statement but still promised to “see her in court.”
The fight between Kelly and Kobach holds important consequences for hundreds of trans residents who have obtained new birth certificates and driver’s licenses in recent years.
Kansas was the first state to pass such a law, which defines man and woman based solely on sex at birth and is based on model legislation written by the Independent Women’s Forum, a nonprofit policy organization critical of trans rights. The statute goes into effect July 1 along with a similar new law in Tennessee. Montana’s own measure will take effect in October. The Republican-controlled Legislature approved the measure this spring over Kelly’s veto.
The Kelly administration and Kobach both said the law only impacts state agencies and will not affect access to public accommodations because there is no enforcement mechanism included.
Still, the law is spurring a new era of fear and confusion in Kansas among trans and nonbinary residents, as well as the broader LGBTQ community, who see in SB 180 the start of an aggressive campaign to erase their identities from the public square and force them back into the shadows. Many worry the law will greenlight harassment and discrimination by members of the public. Rallies to protest SB 180 are planned across the state for Saturday.
“I understand their anxiety. We obviously are taking a look at the implications of this and what, if anything, we need to do,” Kelly told reporters Thursday before the governor’s office said it would continue to follow its current policies.
The law’s proponents have spoken of a broad need to protect public spaces designated for women, such as restrooms, locker rooms and domestic violence shelters. Those spaces, they say, should only be open to women as defined under the bill. Some proponents dismiss the idea transgender identity as invalid.
“The purpose of SB 180 was to provide a definition of what a woman is and that anywhere that exists in current statute that that definition is based on biological sex at birth. So that was the purpose,” Sen. Renee Erickson, a Wichita Republican, said at a press conference Monday. “Truth matters, biology matters. You can choose whatever name you want, you can choose to live however you want. That does not make you a woman, hence, SB 180.”
But days ahead of enactment the enforcement of the policy remains unclear.
Kobach’s advisory opinion says any trans residents who had changed the gender marker on their state issued driver’s licenses or birth certificates would need to revert that ID back to their sex assigned at birth. But Kobach did not address the question of public accommodations and whether the new law would govern who can use bathrooms in public buildings or access other single-sex accommodations that earn state funding.
Kelly’s administration said Thursday it was directing state agencies to follow their own legal counsels’ interpretation of the law. Access to single-sex public accommodations, the office said, would not be impacted at the private or public level because the bill contains no enforcement mechanism.
“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,” Kelly said in a statement.
Kyle Velte, a University of Kansas law professor who studies gender and the law, said the scope of Kansas’ law is broader than anti-trans policies that have been enacted across other states because it forces all state actors to use SB 180 when making services available specifically to men or women.
“There’s not a lot of contexts it will come up in, but it will still be deeply harmful in those contexts,” Velte said, mentioning prisons as one place that could be especially dangerous for trans individuals.
“In some sense it is an attempt of erasure of trans people from public spaces.”
Will the law affect driver’s licenses and birth certificates?
In 2019 Kelly’s administration struck a consent agreement that allowed the Kansas Department of Health and Environment to change the gender marker on birth certificates, following a federal lawsuit from trans Kansans.
After Kobach asked a federal court to reopen that case last week and block birth certificate changes because of the new law, he said Monday that state agencies should no longer allow Kansans to change gender markers on their driver’s licenses or birth certificates and documents previously changed should revert back to sex assigned at birth.
Ellen Bertels, a former attorney at Kansas Legal Services who helped residents change their official documents, said advocates for trans Kansans do not believe Kobach actually holds that power to wind back the clock on documents.
“We have not seen any other state successfully argue that they have the power to unwind gender marker changes,” Bertels said.
“If you look at the law, there’s no retroactive relief under SB 180. The Vital Statistics Office is still bound by the consent decree and unless Kobach succeeds on his motion for relief from the consent decree, they will continue to be bound, basically eternally, by that consent decree.”
The possibility of no longer being able to change a gender marker sparked anxiety for several transgender Kansans.
Rozin has not yet changed his gender marker and said he has avoided considering what the process would entail after SB 180.
“If I try to make that step it makes it more into a reality that this is a right that’s being taken away from me,” Rozin said.
Rozin said changing his name on his official documents still stood out to him as one of the most affirming actions he’s ever taken. He had seen potentially changing his gender marking as an additional step that could prevent officials at the DMV from misgendering him.
Aidan Campbell, a 22-year-old transgender man from Lawrence, said he wasn’t ready to take the step of changing his gender marker when SB 180 passed. At this point, he said, he will wait until he leaves Kansas, something he plans to do after finishing top surgery in the next two years.
“I was forced to have to think about it before I was emotionally ready,” Campbell said.
The situation is even more unclear for Kansas residents who have identification from other states. Adam Kellogg, a transgender man who attends KU, was born in Illinois. His drivers license and social security card identifies him as a man.
“I’m curious to see what Kobach’s office wants to do with out of state birth certificates and how they compare to driver’s licenses because the only way you would know I was born female was if I told you or had access to my medical records,” he said.
Public accommodations
Throughout legislative debate on the policy Kansas Republican lawmakers spoke consistently of a need to keep “biological men” out of female designated spaces. But it remains unclear exactly how the law will accomplish that.
The policy creates no direct enforcement mechanism for separating genders based upon reproductive capabilities but it does appear to lay a legal groundwork to protect future local ordinances or state laws that more directly bar transgender and nonbinary people from spaces that do not align with their sex assigned at birth.
The bill could clear a path for individuals to sue if they are made uncomfortable by sharing a single-sex space with a transgender or nonbinary individual.
Kelly’s administration and Kobach have said they do not believe public accommodations are impacted because of the lack of enforcement mechanism.
Kobach said the University of Kansas would not have to change any internal policies affecting student life.
“SB 180 requires the University of Kansas to record its students as male or female based on the student’s sex at birth. That would affect a student’s eligibility for a scholarship that is only available to women. But it is unlikely to significantly affect the daily activities of students,” he said in a statement to The Star. During his press conference, he criticized localities that declared themselves sanctuary cities stating that “SB 180 doesn’t create any criminal penalties and doesn’t impose any obligations on any private individuals.”
A spokeswoman for Kansas State University similarly said the university was under no obligation to change policies impacting the lives of transgender and nonbinary students.
School districts in Kansas did not immediately respond to questions from The Star about whether their policies for gender non-conforming students would change to comply with the law and local governments across the Kansas City area largely said they didn’t expect an impact or were still evaluating the process.
Earlier this month Douglas County District Attorney Suzanne Valdez announced she would not prosecute anyone under SB 180. Her office said they believed some portions of Kansas law could be applied in a discriminatory manner because of the law but could not provide any details. The Lawrence Police Department made a similar pledge to residents.
In Roeland Park, the city council added new guidance to the employee handbook specifically stating that transgender employees can use whichever facilities match their gender identity.
Iridescent Riffel, a trans woman who lives in Lawrence and works at the University of Kansas, said these steps made her comfortable to live in Lawrence but that sense of safety does not extend statewide.
Even though the enforcement of SB 180 on private individuals is unclear, she said, “it really just pushes that we are not welcome here.”
She said she expects the enactment of SB 180 to open the door to more scrutiny of transgender individuals and cisgender individuals who may not have an conventionally accepted feminine or masculine appearance.
“It’s creating an environment of hostility,” she said.
Recently, Riffel said, she went on a trip that pulled her outside the Douglas County limits. During the trip, she said, she was concerned about being attacked when she went to the restroom.
“It really sets the tone that now I have to look over my shoulder. I have to look over my shoulder because my government will not stand up for my rights and protect me,” she said.
