Lawrence activists draft ordinance against anti-trans bill; attorney prepares for legal battle

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Post updated to add response from Douglas County Sheriff’s Office at 9:45 p.m. Monday, June 19:

Lawrence activists are working on multifaceted approaches to stand against multiple Kansas laws targeting transgender and gender-nonconforming people — including drafting a “safe haven” city ordinance.

Monroe Hanson, Reagan Eidemiller and Raine Flores-Peña sat at a table Saturday morning at the Lawrence Arts Center with bright posters and materials reading “No Lawrence pride without trans liberation,” among other messages. 

They’re part of No SB 180 in Lawrence, a group that’s been leading a push for the city to codify Lawrence as a sanctuary city for transgender and gender-nonconforming folks. 

Hanson told those who stopped by that the group is planning an even bigger push at this week’s Lawrence City Commission meeting than the turnout of nearly three dozen folks at the June 6 meeting. The group wants community members to show up in support and make their voices heard, they said. 

Less than two weeks remain until July 1 when Senate Bill 180 and other new anti-trans laws go into effect. 

Saturday’s panel on LGBTQ+ existence and resistance was one of numerous events that No SB 180 in Lawrence members have attended and worked since a few folks came together to start forming the group via an email chain after the bill passed. 

“SB 180 is an abomination, abusive and unconstitutional, and once we are safe here and it is not looming in our home we will push to protect others from it and any similar bills for the foreseeable future,” Eidemiller said in an email interview. “We won’t just say we got ours and disband, once we are safe it is our duty to help others.”

In addition, Lawrence attorney David Brown is one among “dozens,” he said, who are preparing to challenge the statute once it goes into effect.

Dissecting SB 180

Legislators’ discussions made clear that their intention with Senate Bill 180 is to bar transgender and other gender-nonconforming people from using facilities such as restrooms, locker rooms, rape crisis centers, domestic violence shelters, prisons and more that align with their gender identity. 

The text of SB 180 is just about 400 words. Proponents call it the “women’s bill of rights,” though it enumerates no rights for women. The bill comes from an initiative that transphobic groups are pushing across the country, though Kansas’ statute is modified a bit.

The statute itself is definitional, defining a person’s “sex” as “biological sex, either male or female, at birth.” 

“It attacks the transgender community and otherizes them and completely erases them from our state statutes,” said Jae Moyer, a community political activist in Overland Park who focuses on standing up for LGBTQ+ rights in Kansas, during Saturday’s panel

Mackenzie Clark/Lawrence Times Jae Moyer speaks during a panel hosted by the Douglas County Democrats, Saturday, June 17, 2023.

It also labels “an individual born with a medically verifiable diagnosis of ‘disorder/differences in sex development,’” such as an intersex person, as disabled.

From a basic biology perspective, the law could essentially write cisgender girls and women out of existence, too: “a ‘female’ is an individual whose biological reproductive system is developed to produce ova,” it states, but those who have ovaries are born with all the ova they will ever have. The statute continues: “a ‘male’ is an individual whose biological reproductive system is developed to fertilize the ova of a female” — a distinction that could eliminate prepubescent boys whose bodies have not yet developed mature sperm cells. 

sb180_enrolled

Despite that legislators made their intentions clear in first passing the bill and again in overriding the governor’s veto in April, the language of the bill does not explicitly state that transgender people must use the restrooms and facilities designated for the sex they were assigned at birth. 

“The issue is it doesn’t say what it’s trying to say,” Brown said, “and that is a constitutional legal problem.”

David Brown

The law does not provide enforcement mechanisms, either — so, unlike the statutes that define crimes, it does not designate someone using a certain facility as a misdemeanor or felony. 

But that does little to assuage the numerous concerns of trans folks and other people who are directly affected. Rather, it creates more questions, confusion and ambiguity.

“I think it’s problematic for the entire queer community, but for trans folks, this is just, you know, what does this mean, and how does it affect them?” Brown said. “And nobody knows, and it’s just terribly frightening.”

Monty Coash-Johnson, 19, is a trans KU student who advocates for queer kids and sexual assault survivors and is part of No SB 180 in Lawrence. She said she only hears from cisgender people about the bill’s lack of enforcement mechanisms. 

“My response is ‘OK, but ultimately, SB 180 being passed is a win in the eyes of transphobic (legislators) in Kansas,’” he said. 

‘There is a lot for trans Kansans to be worried about’

The statute lays the groundwork for discrimination, and that can happen in a lot of ways, activists say. 

Isaac Johnson, a 24-year-old KU student and member of No SB 180 in Lawrence, said in an email interview that he is concerned that SB 180 is “just the beginning of much more dangerous anti-trans legislation.” 

Isaac Johnson speaks to the Lawrence City Commission, June 6, 2023. (Screenshot/City of Lawrence YouTube)

“SB 180 is testing the waters and setting up the Kansas legislature to pursue worse avenues,” he said.

Brown has been practicing law in Lawrence since 1992. He teaches an LGBTQ legal seminar as an adjunct professor at the KU School of Law. 

To illustrate how the definitional SB 180 could look in practice, Brown referenced DOMA, the “Defense of Marriage Act,” that became law in 1996. Though it has since been declared unconstitutional, the federal law said no states would be required to recognize same-sex marriages. 

“That left it to the agencies to decide how that law would be implemented,” Brown said. The IRS, Social Security and military, as examples, all took their own stances. “And that’s exactly what’s going on with SB 180. It’s a definitional act. Now we’ll leave it up to agencies to determine how to enforce it and what to do about it.”

One of the biggest concerns, Brown said, is that anti-trans state officials will put harmful policies in place at various state levels. 

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Johnson compared SB 180 to the so-called “Value them Both” amendment that failed by a wide margin in the Aug. 2, 2022 election. The amendment itself was not a ban on abortion, but it would have modified the Kansas Constitution and paved the way for legislators to pass new laws to restrict, ban and/or criminalize abortion. Legislators had made it clear that was the ultimate goal.

“SB 180 is similar in that regard. It doesn’t criminalize trans existence, but the law does permit future legislation to emerge that could make it a criminal offense for trans people to use sex-segregated spaces,” Johnson said. “The wording of the law is also incredibly vague and has obviously left a lot of room for questions with no clear answers.” 

Multiple members of No SB 180 in Lawrence said they have already experienced harassment or sexual assault because they are trans. 

“What’s going to happen to someone like myself who is openly trans, gets harassed in the bathroom, by people who feel like they have a right?” Coash-Johnson said. “It gives people, and specifically transphobic people, a sense of entitlement to harass trans people.” 

Monty Coash-Johnson speaks to the Lawrence City Commission, June 6, 2023. (Screenshot/City of Lawrence YouTube)

Eidemiller said that if the use of facilities is criminalized in future legislation, that could lead to trans people being “put in incorrect prisons where we are incredibly likely to be physically or sexually abused.” 

Another bill that the Legislature recently passed — SB 228, related to jail funding — adds the same “at birth” definitions of “male” and “female,” and dictates that the sheriff “shall keep separate rooms for each sex, female and male.” 

“Functionally, the implicit threat is that we have to conform with a genocidal far right law or they have the legal authority to use the prison system as a method to see us assaulted,” she said. 

Additionally, Eidemiller said states have seldom stopped at just one bill, and if a bathroom bill passes, odds are good that bans on medical care will follow. The Kansas Legislature this year was not able to override the governor’s veto of a bill that would have created punishments for medical doctors who provide gender-affirming care.

Legal experts are also confident — to the extent possible, considering the bill’s confusing language — that SB 180 will prevent people from changing their gender markers on Kansas birth certificates and state-issued IDs after July 1. 

That could create issues for a lot of people as we need our IDs constantly to drive, use banks, access health care, gain employment and more, Johnson said. 

“Having an ID with the incorrect sex marker, such as a trans woman with a male sex marker, immediately outs her as trans and creates a situation where she could experience discrimination or violence,” Johnson said. 

“There is a lot for trans Kansans to be worried about.”

Challenging SB 180 in court

For an attorney to file a lawsuit, there must first be a victim. For better or worse, that’s one thing Brown does not see as a challenge. 

“People will be harmed as these laws are implemented,” he said. “… There is no question about that.” 

And for a lawsuit challenging a law to be feasible, the law must be active. Legally, no one can be considered a victim of a law that is not yet in effect.

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Brown said he’s heard from dozens of attorneys, including some with the ACLU, who fear what they see coming when the law takes effect. But “there’s nothing that we’re aware of that we’re able to do before the train wreck,” he said. “… And that’s why it’s so frustrating.”

In the meantime, he said, they’re doing legal research and gathering materials to get prepared.

Once the law is in effect, an agency or a private business could take some sort of action to implement it, and someone harmed by that action could become a plaintiff. 

Attorneys can also evaluate which potential plaintiffs are most likely to succeed on their claims, Brown said. 

“The lawsuit would say the agency is acting to enforce an unconstitutional law,” he said, “and if the lawsuit is successful, the courts would find the law unconstitutional — not just the agency’s actions as being inappropriate, but inappropriate because they rely on an unconstitutional law. And that would get rid of the law for everybody.”

A lawsuit could be filed in state or federal court. Each has its advantages, Brown said. 

“The final decisions will probably be made once we have real victims, and we can determine what claims we can legitimately make on the behalf of those victims,” he said. 

Brown said the law is both overbroad and unconstitutionally vague, which are other grounds upon which it can be challenged. 

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Law enforcement response

We sent several questions to the Lawrence Police Department about SB 180 on Tuesday. Laura McCabe, spokesperson for the city, on Friday pointed to a statement the city released. 

“To be clear, SB180 contains no enforcement mandates, and the Lawrence, Kansas Police Department will not arrest any person for using a bathroom or public facility that aligns with their gender identity,” according to the statement. “While we acknowledge that the new law might lead some members of the public to believe they can call the police over bathroom-use issues, we will not arrest anyone under the guise of SB180.”

Police Chief Rich Lockhart shared a similar sentiment in the statement.

Rich Lockhart

“I want everyone in our community, which I share as your neighbor, to trust the members of our police department and to know that we are doing our best to protect every single person here,” Lockhart said in the statement.

“We don’t want anyone to feel unsafe. We’re here to help everyone live peacefully, and that includes those in our trans and gender non-conforming community. If anyone feels they’re being harassed or threatened for using the bathroom of their choice, call us.”

The police department’s standards of conduct contains a list of causes for discipline, one of which is “Discrimination, oppression, or favoritism”: “Unless required by law or policy, discriminating against, oppressing, or providing favoritism to any person because of actual or perceived characteristics such as … sex, sexual orientation, gender identity or expression, … and any other classification or status protected by law, or intentionally denying or impeding another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing the conduct is unlawful.”

McCabe did not directly answer whether LPD views SB 180 as a law or policy that would “require” discrimination, but the city’s statement implied that they do not. 

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Coash-Johnson said in addition to the city’s public statement, he heard Lockhart speak at a support group meeting at the Lawrence library last week, and what the chief said “absolutely” helped soothe some concerns he had, though there have “been some issues” between trans people and police. 

“I hope that this will be a way, though, that we can build up more of a trustworthy community between police and trans people in Lawrence, Kansas,” Coash-Johnson said. 

In addition, Douglas County District Attorney Suzanne Valdez has published a statement saying that she will not use her office’s resources to prosecute anyone under SB 180.

Suzanne Valdez

“I was deeply saddened when this law was passed,” Valdez said in her statement.

“In today’s chaotic world where we should treat one another with dignity, understanding and compassion, the Kansas legislature chose to create a law that is senseless and, quite frankly, potentially dangerous to our trans community.”

Eidemiller said the group wants to see the police uphold what they’ve already promised.

She was aware of the DA’s statement, “but that does not rule out harassment by vigilantes or police, and if the DA is ever replaced such promises would be meaningless,” she said.

We asked whether the Douglas County Sheriff’s Office will house people in facilities that align with their gender identities at the local jail.

Jay Armbrister

Sheriff Jay Armbrister, in an email via a department spokesperson Monday evening, said that “Overall, the Douglas County Sheriff’s Office stands with the Lawrence Police Department’s approach on this.”

“Most simply in all situations, DGSO’s principles for deputies, corrections officers and staff is to do what is right by the person involved, which means prioritizing the person’s physical safety and not tolerating any level of harassment towards someone,” Armbrister said. “If that means not enforcing a law that is unjust and cruel, that’s what we will do.”

The department has a specific policy on transgender housing and intake. That’s below.

“(B)asically it is a case-by-case basis,” Armbrister said. “Also, the person in custody has standing in that conversation so we can house them safely and securely while also respecting their basic human rights.”

DGSO-Transgender-Housing-Intake-7.1

Activists push for more

The City of Lawrence’s statement on Friday included that “our team is dedicated to making sure our trans community feels safe as they live, work and enjoy life in Lawrence, Kansas,” and SB 180 would not change that. 

“We accept and respect each other regardless of who we are, what we look like, how we live or how we choose to express ourselves,” the statement read. 

Farris Muhammad, the city’s director of equity and inclusion, said in the statement that “Our team works diligently to make the City of Lawrence an equitable community of choice for ALL, including our transgender and other marginalized community members.” 

During the Lawrence City Commission’s June 6 meeting, City Attorney Toni Wheeler said Wheeler said City Manager Craig Owens had tasked her and Muhammad with working on the matter. She said they had contacted other communities and the Kansas League of Municipalities, and “they are promising to provide us updates as they learn more about it,” Wheeler said.

Brown said he thought the city could take some sort of stand, but he feared it might be a symbolic stand without a lot of effect. The city has a “very strong” human rights ordinance that, in theory, protects against the kinds of discrimination that SB 180 allows, Brown said. 

“But state law governs over city ordinances,” he said. “… If the state agency is trying to enforce a statute, I’m not sure how the city’s ordinance would hold up against that state statute, and that would have to be determined in some separate court battle.” 

Members of No SB 180 in Lawrence have their sights set on more action from the city.

They want the Lawrence City Commission to pass an ordinance and put it on the books that the city will not enforce SB 180, nor any other anti-trans legislation passed at the state level. 

August Rudisell/Lawrence Times Flags with the message “Everyone is welcome here” and heart stickers in rainbow and trans pride colors sit on a table at Lawrence City Hall, June 6, 2023.

“This is on our doorstep,” Eidemiller said — it’s not some faraway issue.

The group has even drafted a “safe haven” ordinance that members will encourage the city to use.

Among other things, the draft ordinance suggests preventing city funding from being used to enforce any of the anti-trans bills or gathering or disseminating any information about any person’s “biological sex, either male or female, at birth,” as the statute says.

Here’s the full ordinance via the group’s LinkTree:

NO-SB-180-Sanctuary-City-Ordinance-Draft

Eidemiller said the group welcomes anyone who wants to help. The most immediate way to help and show support is to show up to the Lawrence City Commission’s next meeting, set for 5:45 p.m. Tuesday, June 20 at City Hall.

Coash-Johnson said the group has gotten a lot of attention from the Lawrence community, and it’s clear that the group’s demands are what people want. 

Johnson said that although the group’s fight is specific to Lawrence, it doesn’t end here. He mentioned another bill the Legislature passed, HB 2238, that bans trans girls and women from playing in school or college sports. 

“What we are experiencing is a significant backlash to very quick gains made not only by trans people, but by LGBTQ+ individuals as a whole,” he said. “They are not going to stop anytime soon and the consequences of this are already severe.”

He also pointed to a broader picture, saying that this legislation impacts everybody.

“Anti-trans ideology does not exist in a vacuum but is instead a consequence of patriarchal beliefs and other systemic inequalities,” Johnson said. “Transphobia is inseparable from misogyny, racism, and economic injustice and disparities. It is not a coincidence that Roe v Wade was repealed just last year and that fascism is on the rise around the world. Everybody should be paying attention. I think we might be arriving at the crux of something big, and people need to be ready for it and to decide what side of history they will be on.”

Find out more about No SB 180 in Lawrence, including links to follow their efforts on Facebook and Instagram, via their LinkTree, linktr.ee/nosb180lawrence

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Mackenzie Clark (she/her), reporter/founder of The Lawrence Times, can be reached at mclark (at) lawrencekstimes (dot) com. Read more of her work for the Times here. Check out her staff bio here.

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