TOPEKA — Despite companion bills in Kansas House and Senate committees that would require transgender students to use the bathroom that matches their gender at birth instead of their gender identity, a lobbyist for the rights of lesbian, gay, bisexual and transgender people doesn’t believe the legislation will get traction this year.
“Those fights typically don’t end well for the sponsors of these bills,” said Tom Witt, executive director of Equality Kansas. “Political careers in Kansas have ended by promoting anti-LGBT bigotry. So there’s just not a lot of appetite in the Legislature this year for picking a fight.”
Witt made his remarks this past week after moderating a panel discussion at Washburn University about federal policies regarding the treatment of transgender people in the workplace. He said the bill Rep. John Whitmer, R-Wichita, introduced at the beginning of the 2017 legislative session gives the Kansas attorney general “unlimited power to prosecute and sue these children and their families and the school districts” if a transgender student uses the bathroom that doesn’t align with his or her gender at birth.
“No matter what Whitmer says is in his bill, the plain language of the bill makes it clear that the AG has absolute discretion over the type and severity of any kind of action brought against these transgender kids and their families,” Witt said, adding similar legislation last year capped any legal fines of violating the law at $2,500. This year’s bills, however, he said, have no cap.
Witt said local school districts making restroom accommodations for transgender students is still the wrong approach because such practices isolate the children being bullied. Likewise, he said, Whitmer’s bill puts a “target” on the backs of transgender students.
“He’s setting these kids up for being bullied,” Witt said. “He is going to isolate kids who are already at risk. We’re talking kids, we’re not talking about adults. Little kids, in a lot of cases.”
On Wednesday, the Trump administration announced it was planning to revoke the Obama administration’s policy requiring states to allow transgender students to use the bathroom that corresponds with their identity or risk losing federal funding.
White House spokesman Sean Spicer said the current guidelines were confusing and hard to implement. Anti-bullying policies, however, would remain in place and that the departments of Education and Justice were working on new guidelines.
“The president has made it clear throughout the campaign that he is a firm believer in states’ rights and that certain issues like this are not best dealt with at the federal level,” Spicer said.
Regardless of any federal directives aimed at transgender students’ use of bathrooms in their schools, the chairman of the Kansas State Board of Education said he believes such policies should remain in firm control of the state’s 286 school districts.
“I would certainly hope that local people — parents and students — would make those decisions as to what’s best for them,” said Jim Porter, R-Fredonia. “We talk about local control all the time. We believe we don’t need to interfere in those decisions.”
The “we” Porter is referring to is the 10-member, locally elected state board of education who voted unanimously in June to not support a U.S. Department of Education and U.S. Department of Justice declaration that transgender students had Title IX protections against discrimination and harassment.
When making the decision to defy the Obama Administration’s directive, members of the board released a statement saying such decisions were and should remain at the local level. Although the Obama guidance carried no force of law, transgender rights advocates say it was necessary to protect students from discrimination. Opponents argued it was overreach and said it violated the safety and privacy of all other students.
Peg McCarthy, a member of Topeka USD 501, told the state board in June that USD 501 has had a policy barring discrimination against students based on their gender identity or gender expression for the past five years. She said the district has had a policy on restroom use, record-keeping and related matters for a year “without encountering any difficulties.” McCarthy is a clinical psychologist who regularly works with children and adults whose gender identity or expression differs from their birth sex.
In the meantime, Porter said he doesn’t believe members of the state board of education will change their minds anytime soon about leaving such matters in the hands of local districts.
“That’s the decision we made, and we stand by it,” he said.