Allegation of “genital inspections” in Kansas needs context

A record number of anti-transgender bills passed state legislatures in 2023 Trans Legislation Tracker lists 492 anti-trans laws introduced in 2023, up from 173 such bills in all of last year.

One such law on the list is a ban on transgender athletes in youth athletic competitions in Kansas, which went into effect April 5 after the state legislature, composed of a Republican supermajority, vetoed the state’s Democratic governor, Laura Kelly, had overridden.

After the passage of the bill a viral tweet Viewed over 11 million times, Kansas Republicans claimed to “now authorize genital inspections of children so children can play sports,” overriding the governor’s veto.

Does a Recently Passed Kansas Law Allow Genital Inspections on Children So Kids Can Play Sports?

The law’s language is vague and does not describe how the state determines whether an athlete is transgender. While this raises the possibility that the state could rely on “genital screening” to determine children’s suitability for school athletics, it does not require such procedures or say it will use them at all.

On April 5, both houses of the Kansas Legislature successfully voted on motions to override Gov. Laura Kelly’s veto of HB 2238, the legislature said Kansas State website.

The Bill’s text is short. It bans “male students” from participating in girls’ sports in public schools and allows any student who feels aggrieved by a violation of that law to “have a private cause of action for injunctive relief, damages and other remedies under the law against the public educational institution, in the student is enrolled in.”

In other words, a student or their parents can sue schools if they believe they didn’t make a sports team because a transgender girl made it on the team instead.

But the law does not specify how a student would prove that another student’s participation would be against the law.

While the law defines “biological sex” as “reproductive potential or ability, such as sex chromosomes, naturally occurring sex hormones, gonads, and distinct internal and external genitalia present at birth,” it does not say how anyone could prove that a student it does or does not have these properties. The law is also unclear as to how intersex children fit into this definition. People who are intersex are born with a reproductive or sexual anatomy that doesn’t seem to fit typical definitions of female or male Intersex Society of North America says.

The first version of this bill, introduced at the Kansas Statehouse in 2021, contained language that suggested a medical examination that could be defined as “genital inspection.” This version of the bill states that a health care provider can verify a student’s “biological sex” during a “routine athletic physical exam” by relying on the student’s “reproductive anatomy.” A amended version of this 2021 bill, this language has been removed. The law enacted on April 5, 2023 did not include this language.

Kansas is the 20th state to enact a law banning transgender youth from participating in school sports physical activity promotion project, a nonprofit think tank that creates maps on various social issues, said. The Movement Advancement Project tracks which states have and don’t have certain laws that target or protect LGBTQ+ people.

In some states, such as North Dakotawhich issued a transgender sports ban on the same day Kansas issued its ban, the language of its law is nearly identical to the language used in Kansas, and thus details of how the state would verify a student’s gender are also missing.

Other states provide these details. Kentuckyfor example, determines a student’s eligibility based on an “annual medical examination” and a signed affidavit stating “the student’s biological sex at the time of birth” from the medical professional who conducted the examination, or the “original “Student’s unedited birth” specifies a certificate issued at the time of birth.” Kentucky requires all students wishing to participate in school physical education to attend an annual physical.