Claim about Kansas law ‘authorizing genital inspections of children’ needs context

There has been a record number of anti-transgender bills moving through state legislatures in 2023. Already, the Trans Legislation Tracker lists 492 anti-trans bills that have been introduced in 2023, as opposed to 173 such bills the entirety of last year.

One such bill on the list is a ban on transgender athletes in youth sports competitions in Kansas, which became law April 5 after the state’s legislature, which is made up of a Republican supermajority, overrode the veto of the state’s Democratic governor, Laura Kelly.

Following the bill’s passage into law, one viral tweet viewed over 11 million times claimed Kansas Republicans “now authorize genital inspections of children in order for kids to play sports” by overriding the governor’s veto.

THE QUESTION

Does a recently passed Kansas law authorize genital inspections of children in order for kids to play sports?

THE SOURCES

• Kansas HB 2238
• Kansas SB 208, an earlier version of the bill introduced in 2021
• Laws banning transgender youth from school sports in North Dakota and Kentucky

THE ANSWER

The law’s language is vague and does not detail how the state will determine if an athlete is transgender. While that opens up the possibility the state could rely on “genital inspections” to determine kids’ eligibility for school sports, it doesn’t require such procedures or say it will use them at all.

WHAT WE FOUND

On April 5, both chambers of the Kansas legislature successfully voted on motions to override state governor Laura Kelly’s veto on HB 2238, according to the Kansas state legislature’s website.

The bill’s text is short. It prohibits “students of the male sex” from participating in girls’ sports at public schools and allows any student who feels harmed by a violation of this law to “have a private cause of action for injunctive relief, damages and any other relief available under law against the public educational entity in which the student is enrolled.”

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

But the law doesn’t specify how a student would prove that another student’s participation would be in violation of the law.

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

The first version of this bill, which was introduced at the Kansas statehouse in 2021, included language suggesting a medical examination that could be defined as a “genital inspection.” That version of the bill said a healthcare provider could verify a student’s “biological sex” during a “routine sports physical examination” by relying on the student’s “reproductive anatomy.” An amended version of that 2021 bill removed this language. The law that was enacted on April 5, 2023 did not include this language.

Kansas is the 20th state to enact a law banning transgender youth from competing in school sports, the Movement Advancement Project, a nonprofit think tank that produces maps on various social issues, said. The Movement Advancement Project tracks which states do and don’t have certain laws targeting or protecting LGBTQ+ people. 

In some states, such as North Dakota, which passed a transgender sports ban the same day Kansas enacted theirs, the language of their law is nearly identical to the language in Kansas’, and therefore also lacks details on how the state would verify a student’s sex.

Other states do provide these details. Kentucky, for example, determines a student’s eligibility based on an “annual medical examination” and a signed affidavit that establishes “the student's biological sex at the time of birth” from the healthcare professional who performed the examination, or the “student’s original, unedited birth certificate issued at the time of birth.” Kentucky requires all students seeking to participate in school sports to take part in an annual medical examination.