Kansas City, Mo. (January 3, 2023) - This alert discusses the major developments in Kansas labor and employment law from the previous year, including legislation defining "gender" and "sex," the effects of that legislation, and changes in tobacco laws.

Gender and Identification

Senate Bill 180, which was enacted by the Kansas Legislature and established the Women's Bill of Rights, defines "sex" according to a person's biological sex at birth.

According to the bill, "intermediate constitutional scrutiny forbids unfair discrimination against similarly situated male and female individuals but allows the law to distinguish between the sexes where such distinctions are substantially related to important government objectives."

Notwithstanding any provision of state law to the contrary, distinctions between the sexes are substantially related to the important governmental objectives of protecting the health, safety, and privacy of individuals, with respect to the following areas:

  • Athletics;
  • Prisons or other detention facilities;
  • Domestic violence centers;
  • Rape and crises centers;
  • Locker rooms;
  • Restrooms; and
  • Other areas where biology, safety, or privacy are implicated that result in separate accommodations.

The bill requires and states that, "[a]ny school district or public school thereof, and any state agency department or office or political subdivision that collects vital statistics for the purpose of complying with anti-discrimination laws or for the purpose of gathering accurate public health, crime, economic or other data shall identify each individual who is part of the collected data set as either male or female at birth."

Shortly after the bill was introduced, Kansas Attorney General Kris Kobach filed a lawsuit asserting that the Kansas Department of Revenue's Division of Vehicles must indicate a person's "gender" or "sex" on driver's licenses based on the language and requirements of Senate Bill 180. The respondents argued that Senate Bill 180 does not apply to driver's licenses because it is a general law superseded by specific language in other Kansas statutes. Kansas ex rel. Kobach v. Harper, 2023 Kan. Dist. LEXIS 46, *1. This matter is still pending with the court.

In response to the bill, Governor Laura Kelly published a message stating, "[c]ompanies have made it clear that they are not interested in doing business with states that discriminate against workers and their families. By stripping away rights from Kansas and opening the state up to expensive and unnecessary lawsuits, these bills would hurt our ability to continue breaking economic records and landing new business deals."

Kansas qualified employers are still subject to federal laws regarding sex and gender interpretations in employment practices. In June 2020, the Supreme Court held in Bostock v. Clayton County that Title VII's prohibition on discrimination because of sex covers discrimination on the basis of gender identity and sexual orientation. Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020).

For more information regarding Senate Bill 180, see the summary and Governor Laura Kelly's response.

Tobacco Age Increased

The lawful age to sell, furnish, or distribute cigarette, electronic cigarettes or tobacco products in Kansas raised from 18 to 21 years old. See the bill's summary at House Bill 2269.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.