Editor’s Note: SB244 was published in the Kansas Register on Thursday, Feb. 26. It is now law. 

On Feb. 18, the Republican supermajority of the Kansas House overrode Governor Laura Kelly’s veto on a piece of legislation that will effectively prohibit transgender Kansans from using the bathroom that aligns with their gender identity and expression. Now, transgender Kansans will be required to use the bathroom that aligns with their sex assigned at birth, regardless of those factors.

The override of the governor’s veto solidifies House Substitute for Senate Bill 244 into law, without any public input, after the Kansas Senate voted to do the same on Feb. 17. It comes at a time when transgender Americans have become the latest scapegoat in carefully manufactured problems by Republican officials and have faced repeated bouts of anti-trans legislation in the name of  “common sense” — whatever that means — and “protecting” children, women and girls, supposedly. 

It is set to take effect once it is published in the Kansas Register, which publishes each Thursday. As of Feb. 23, the bill has yet to be published.

Kansas legislators paint SB244 as a way to “keep men out of women’s restrooms” when they really mean it’s an effort to discriminate against transgender people. If it wasn’t, Kansas legislators wouldn’t have been so eager to utilize anti-trans rhetoric while speaking on the bill, nor would they have included measures that require one’s gender markers on driver’s licenses and birth certificates to match their sex at birth.

In case you aren’t aware, people who are transgender often change the gender markers on those documents to better reflect their gender identity.

I read over the eight-page bill so you don’t have to, and news flash: the bill is wrought with unclear language. 

First and foremost, it’s important to note that lawmakers have used the bill to retroactively change how the state defines “gender.” Previously, Kansas defined gender as “the psychological, behavioral, social and cultural aspects of being male or female.” Now, it has redefined the term to mean sex at birth.

SB244 requires that government-owned public buildings, like those of Emporia State, make multiple-occupancy private spaces, like locker rooms or stalled restrooms, designated for use by sex. It prohibits individuals from using the sex-assigned spaces that don’t align with their birth sex. 

Conveniently, it leaves out any mention of intersex people. 

Lawmakers leave enforcement of the law extremely vague. By all accounts, how to ensure Kansans are using the appropriate sex-assigned bathroom is left up to interpretation. 

“The governing body, or chief administrative officer if no governing body exists, shall take every reasonable step to ensure an individual does not enter a multiple-occupancy private space that is designated for use only by individuals of the opposite sex,” the bill reads. 

There is no indication of what constitutes a “reasonable step” to ensure compliance. Does this mean posting a bathroom monitor outside restrooms? Profiling individuals based on their stature or appearance? Checking IDs for biological sex markers? Keeping cameras in restrooms? That last one is sure to violate privacy laws. 

Further, SB244 mandates that “upon receipt of a complaint that an individual entered a multiple-occupancy private space in violation” of the law, an investigation must take place to determine if the law was in fact violated. Again, there is no direction as to what steps are to be taken during this investigation and how investigators are to determine whether a violation occurred. 

Are determinations based on physical appearance? Obtaining medical records? Getting a court order to force an individual to undergo a genital inspection? Could be, but we don’t know. The bill simply doesn’t make note of the “proper” investigative practices.

This puts all Kansans at risk. One complaint received that you shouldn’t so much as have washed your hands in a restroom because you have more feminine features than other men or more masculine features than other women— again, whatever that means — and you’re under a microscope, regardless of biology. 

Even in the bill’s exceptions to the law, the lines are blurred. 

In instances like a medical emergency to render aid, providing assistance to someone who requires it, custodial and maintenance purposes, law enforcement action, coaching and the like, the bill’s restrictions don’t apply. However, only children under nine are permitted to enter multiple-occupancy spaces of the opposite sex with their caregiver. There is no clear, written exception for children nine and over with, for example, special needs who parents of the opposite sex may need to take with them in these spaces. 

The bill seems to suggest that a single-occupancy family or unisex space will always be available in such cases, and that families or transgender Kansans can use those instead. 

If it is determined a violation has occurred, private citizens and public entities can accrue financial penalties, according to the bill. Private citizens can also face criminal charges. After a first written warning, individuals will be required to pay a fine of $1,000 upon a second violation. If they violate the law for a third time or more, they will be charged with a class B misdemeanor, which can result in up to six months of jail time. 

Perhaps one of the most consequential assertions of the bill involves civil litigation, which effectively puts a bounty on transgender folks without any protections from bad actors. Any explanation of recourse available to those who have been falsely accused of a violation and dragged through the mud is glaringly absent — and I would argue that’s precisely the point. Too, conceptualizations of privacy and harm as they are written in the section are over broad and lack any additional metrics as well. 

If an individual who uses a multiple-occupancy space for use by one sex is “aggrieved by the invasion of such individual’s personal privacy or is otherwise harmed by a violation of this section” by someone of the opposite sex, the bill allows them to “seek actual damages or liquidated damages in the amount of $1,000, as well as declaratory and injunctive relief.” 

The bill does note that it is “an affirmative defense” that a defendant did not know there was a sex designation to the multiple-occupancy space they are accused of using.

As for the portions of the bill referring to legal documents, any driver’s license or birth certificate issued before July 1, 2026, that “identifies the sex of the individual named … in a manner that is contrary to the (state’s) definition” will be rendered invalid by SB244.

Any individuals that have had the sex changed on their birth certificates will have the marker changed back to their sex at birth; those who have changed the gender marker on their driver’s license to a sex different than their sex at birth will be made to surrender their license to the DMV and obtain a new license reflecting their biological sex. 

In an already hostile political climate for transgender Americans, SB244 puts actively transitioning and post-transition Kansans in a situation where they are simply damned if they comply and damned if they don’t. When they use the restroom, pull out their ID or are made to show their birth certificate, their very existence will be subject to scrutiny. 

Any Kansan will draw suspicion for their style of dress or perhaps their painted nails, the way they talk and the physical features they can’t change — for even a mere choice of self-expression or non-conformity to arbitrary gender expectations can ignite an investigation into one’s private parts. 

Make no mistake, every Kansan of any age will be affected by SB244, transgender, cisgender, and non-binary alike or anyone else in between. All of us will be subject to the enforcement operations that arise from this bill, and all of us will be put under a watchful eye — even amid compliance.