Colyer mostly wrong on claim that LGBT protections are in Kansas law

Gov. Jeff Colyer on Thursday appeared to contend that Kansas law contained the same prohibitions against discrimination of LGBT state employees as an executive order that was repealed by his predecessor, Sam Brownback.

He is mostly wrong.

A month into his time as governor, Colyer has not said whether he will reinstate the order. It would cover thousands of workers.

“What I have said is that we will not tolerate discrimination. If there’s an issue of discrimination, come to me, we’ll deal with it. It is not tolerated by our administration. Period,” Colyer told reporters.

Asked if he is unwilling to put his position into an executive order, Colyer said: “It is the policy, it is the law of Kansas. We will not be dealing with these things.”

Kansas has no law prohibiting employer discrimination on the basis of sexual orientation and gender identity. Executive orders are considered to have the force of law, but Colyer has not signed a non-discrimination order.

The order that Brownback repealed directed state agencies to prohibit discrimination and harassment on the basis of sexual orientation and gender identity.

Asked to clarify Colyer’s remarks, spokesman Kendall Marr reiterated the governor won’t tolerate discrimination, but also said Kansas law mirrors federal law.

Federal law doesn’t prohibit discrimination on the basis of sexual orientation and gender identity. But the U.S. Supreme Court has ruled that federal law does prohibit same-sex sexual harassment.

That means that even though the order was repealed, same-sex sexual harassment remains against the law in Kansas.

Employer discrimination on the basis of sexual orientation and gender identity continues to be legal in Kansas, however.

Tom Witt, director of Equality Kansas, said Kansas law absolutely does not ban discrimination on the basis of sexual orientation and gender identity.

“If he’s serious, this will get written down and it will be signed by him,” Witt said.

Sarah LaFrenz, president of the Kansas Organization of State Employees, said as far as she knows, no formal policy exists providing protections for LGBT state workers.

"It takes the reinstatement of that for us to be sure what their commitment is. Period," LaFrenz said.

When Brownback repealed the order in 2015, he noted that the order had extended protections to state workers not otherwise available. The order was signed by Gov. Kathleen Sebelius in 2007.

The repeal “ensures that state employees enjoy the same civil rights as all Kansans without creating additional ‘protected classes’ as the previous order did,” Brownback said at the time.

Since taking office, Colyer has been working to signal a shift in tone from Brownback. He signed executive orders aimed at increasing government transparency and combating sexual harassment. The harassment order doesn’t apply to employer discrimination on the basis of sexual orientation or gender identity.

Colyer has also named a new leader of the Kansas Department for Children and Families, who has said the agency won’t discriminate against gay and lesbian couples who want to foster or adopt children. The agency has been accused of discrimination in the past.

Sen. Lynn Rogers, D-Wichita, said if Colyer means what he says about not tolerating discrimination, he should sign the order.

"It’s the only protection that a lot of people will have," Rogers said.

Colyer faces several Republican challengers for his party’s nomination. He must lay the groundwork for a general election run while also courting Republican primary voters, who tend to be more conservative than the general electorate.

The party has staked out a firmly conservative stance on gender identity. The Kansas Republican Party at its state convention earlier in February adopted a resolution "to oppose all efforts to validate transgender identity."

Last fall, Colyer’s campaign would not take a position on the executive order after it became an issue at Brownback’s confirmation hearing. Sen. Tim Kaine, the former Democratic vice presidential candidate, pressed Brownback over his decision to repeal the order.

Rep. John Barker, R-Abilene, said Wednesday the Legislature always has the option to pass a bill to prohibit discrimination.

"I don’t know what the order says, but I do believe: We don’t discriminate against anybody in our society," Barker said when asked if the order should be reinstated.

Kansas Secretary of State Kris Kobach, who is also running for governor, has promised he wouldn’t bring back the order. Echoing Brownback, he has said lawmakers have the option to debate and pass a bill instead.

This story was originally published March 1, 2018 at 7:00 AM with the headline "Colyer mostly wrong on claim that LGBT protections are in Kansas law."