Politics & Government

Bill would require Kansas AG to investigate transgender students’ bathroom use

Kansas state Rep. John Whitmer, R-Wichita, shown here in March, has introduced legislation that would require transgender students to use bathrooms that correspond with their gender at birth and enable the attorney general to take legal action if the law is violated.
Kansas state Rep. John Whitmer, R-Wichita, shown here in March, has introduced legislation that would require transgender students to use bathrooms that correspond with their gender at birth and enable the attorney general to take legal action if the law is violated. File photo

A Wichita lawmaker has introduced legislation that would require transgender students to use bathrooms that correspond with their gender at birth and enable the attorney general to take legal action if they don’t.

Rep. John Whitmer, R-Wichita, framed his bill as a compromise that dropped a controversial “bounty” provision included in a measure last year.

LGBT rights advocates say Whitmer did not seek their input and that they do not view the bill as a compromise but rather as enabling discrimination against transgender students.

HB 2171, formally introduced on Thursday, defines sex based on a person’s chromosomes and says that every “public school student restroom, locker room and shower room accessible by multiple students at the same time shall be designated for use by male students only or female students only.”

That would effectively bar school districts from allowing transgender students to use the bathroom of their choice, the one that matches the gender they identify with. The bill would allow school districts to come up with alternative accommodations, such as single-stall bathrooms, unisex bathrooms or use of faculty bathrooms.

The bill does not include a provision from a previous bill that would have enabled other students to seek a $2,500 legal payment if a transgender student used a prohibited bathroom.

But it includes a new provision that requires the Kansas attorney general to investigate any complaints brought by citizens about school districts in possible violation of the law.

If the attorney general determines “that legal action is warranted to cure the violation, then the attorney general may file an action in a court of competent jurisdiction seeking such equitable relief as the attorney general deems appropriate,” the bill says.

Jennifer Montgomery, a spokeswoman for Attorney General Derek Schmidt, said in an e-mail that the “attorney general’s office did not seek these additional responsibilities nor were we consulted in the drafting of this bill. Since the Kansas Constitution assigns the ‘general supervision of public schools’ to the State Board of Education, and the operation to local school boards, it’s not obvious why the Legislature would assign this task to the attorney general’s office instead of to the elected officials who oversee schools.”

Whitmer said the bill is a response to an Obama administration directive regarding access to school bathrooms by transgender students.

“We’re pushing back against the White House, the previous White House, that felt the need to force their directive on the entire country that said you have to allow transgender students bathrooms, locker rooms and overnight accommodations,” Whitmer said. “Derby High School chose to embrace that policy. Every other school in my district didn’t. They make a reasonable accommodation.”

Derby High School adjusted its bathroom policy last spring in response to the federal directive. Since then, parents and others have formed Facebook groups and circulated petitions to either support the decision or urge the school to reconsider.

Derby superintendent Craig Wilford said Thursday that district officials plan to monitor Whitmer’s bill in the Statehouse.

“We’ll watch and see how it plays out,” said Wilford, who earlier this week announced plans to retire at the end of this school year.

“Until there’s really something finalized … and it’s actually passed, we’ll just continue to monitor and see how it goes.”

Tom Witt, executive director of Equality Kansas, an LGBT rights organization, said the bill was not a compromise.

“You’re giving an attorney general open-ended authority to prosecute little kids with unknown penalties, unknown consequences,” Witt said. “This bill on its face is just an attack on little kids, and I’m incredibly angry and disappointed that anybody would introduce such a thing in this state.”

Whitmer said the court action would be against the school districts rather than students. He said the provision mentioning the attorney general was a standard way to enforce a violation.

“If you look at any statute when there’s a violation of the statute, that’s how it’s handled,” he said. “All that would happen is the AG would say, ‘You’re in violation. Fix it.’ ”

House Minority Leader Jim Ward, D-Wichita, an attorney and former prosecutor, disagreed.

“Leaving it open-ended for the attorney general to do what he deems appropriate is not typical,” Ward said. “In a bill such as this, you usually give the attorney general various options from which they can choose depending on the egregiousness of the act. Now, even if it’s in civil court, you tend to point out penalties and fines … or at least give ranges, so that people know what the consequences are for particular activities.”

Ward also disagreed that the bill would allow for legal action only against school districts.

“If the attorney general deemed it appropriate, he could go after a student or a family,” Ward said while looking over the bill.

The NCAA pulled out of hosting championships in North Carolina after that state passed a bill restricting transgender people’s access to restrooms. Whitmer said he is not worried about a similar backlash because his bill deals solely with K-12 education and would not affect universities or private businesses.

“There’s no Title IX violations because we’re not looking at colleges and universities. There’s no private sector talk here,” Whitmer said. “All we’re doing is looking at K-12 here and saying, ‘Let’s make a reasonable compromise’ and say, ‘Hey, boys go to the boys’ room and girls go to the girls’ room,’ and we make a reasonable compromise and allow the districts to make reasonable access by their determination for those who need another accommodation.”

Title IX prohibits discrimination based on sex at federally funded educational institutions. That includes elementary and secondary schools, according to the U.S. Department of Justice’s website.

Whitmer’s bill was introduced the same month that California banned state-funded travel to Kansas over concerns about LGBT discrimination.

“All these bills are going to continue to do is upset the business community, upset people with money and drive people out of our state and keep people away from our state,” Witt said. “If we want a state that’s going to be welcoming to people around this country, then we need to stop introducing and passing discriminatory legislation.”

Bryan Lowry: 785-296-3006, @BryanLowry3

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