On March 14, 2023 the ACLU of Kansas sent a letter to Governor Kelly imploring her to veto the harmful HB 2238, otherwise known as the “Fairness in Women’s Sports Act.” This bill does nothing but target trans kids for bullying and exclusion, while also violating the United States Constitution and Title IX of the Civil Rights Act.
Where a law singles out people because their gender identity does not match the gender assigned to them at birth, it necessarily discriminates on the basis of sex and trans status. This triggers heightened equal protection scrutiny under the Constitution. The U.S. Supreme Court is clear that “[a]ll gender-based classifications today warrant heightened scrutiny.” And there is no exception to heightened scrutiny for gender discrimination based on physiological or biological sex-based characteristics.
Likewise, if it became law, HB 2238 would violate Title IX of the Civil Rights Act of 1964. Title IX protects all students—including students who are transgender—from discrimination based on sex. Title IX states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” The overwhelming majority of courts to consider the issue have held that discrimination against transgender students in schools is prohibited sex discrimination under Title IX.
This bill hurts Kansans and encroaches on civil liberties. We are calling on Governor Kelly to use her veto powers and stop it.
