Kansas trans athlete law doesn’t 'authorize' genital inspections for kids, doesn’t ban them either

On April 5, the Kansas State Legislature overrode the Democratic governor’s veto to pass a bill banning transgender women from playing on women’s sports teams. 

Online, fear spread over how such a rule would be enforced.

"Kansas Republicans have successfully overridden the Governor veto to now authorize genital inspections of children in order for kids to play sports," tweeted one user. 

Other Twitter users shared similar messages of concern about methods schools might use to determine a student’s sex as assigned at birth. Discussions about such "inspections" are not new in Kansas; a similar bill from 2021 that failed stated that a physical examination of a student’s "reproductive anatomy" by a health care provider could be used to resolve disputes over a person’s sex. 

But there’s no such language in the new law — and the claim that it authorizes "genital inspections of children" is not accurate. 

Here’s why people may be concerned: The new legislation does not outline how its provisions will be implemented and enforced. It passes the responsibility of creating those protocols to the state’s athletic association and governing boards of colleges and universities.

Because the law does not explicitly prohibit genital inspection, it will be up to those organizations to determine whether such inspections will be necessary to enforce the state law. 

Let’s break down the details. 

The Republican-sponsored "Fairness in Women's Sports Act" or HB 2238, declares that "athletic teams or sports designated for females, women or girls shall not be open to students of the male sex."

This bill, which prohibits transgender women from playing on sports teams that align with their gender identity, passed both houses of the Legislature before it was vetoed by Democratic Gov. Laura Kelly and then overridden by a two-thirds majority vote in both chambers.

This law affects student athletes from kindergarten through college, at both public schools and private schools that compete against them. Bill sponsor Rep. Barbara Wasinger, R-Hays, said elementary students were included in the bill to correspond with the verbiage in Title IX, the federal law that requires gender equity in education, including athletics. But the change should not affect elementary students as they don’t have any school-sponsored competitive sports.

The Kansas law will affect only transgender girls. According to the Kansas State High School Activities Association, which oversees school sports from seventh to 12th grades, only three transgender girls were eligible to participate this year and two of them are graduating. 

The bill stops short of explaining how its new restrictions will be instituted.

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That job has been given to the Kansas State High School Activities Association and to the governing boards of each college and university. These groups are tasked with adopting "rules and regulations for its member schools to implement the provisions of this section." 

Under existing policies, the athletic association allows transgender student participation, but it considers each case individually. Asked about any new policies in response to HB 2238, Executive Director Bill Faflick told PolitiFact, "KSHSAA will be ready to address HB 2238 after we discuss the specific language and finalize compliance policy for our member schools with the KSHSAA Sports Medicine Advisory Committee and the KSHSAA governing boards." Both groups are scheduled to meet later in April.

Until updated rules and regulations are announced, we will not know for certain what determining or verifying a student's sex will entail.

Wasinger told PolitiFact she doesn’t believe genital exams are necessary under the new law. She said existing requirements will be sufficient to establish a student’s sex. These requirements currently include a student’s birth certificate, which is required for most students to enroll in Kansas schools, and an annual sports physical, she said. 

Asked why those details were not included in the bill, and why genital exams were not prohibited, Wasinger told PolitiFact she didn’t want to move beyond her expertise and that she relied on attorney advice when crafting the bill. 

"I'm not a physician, I'm gonna let them figure it out," she said. 

Opponents have raised concerns about birth certificates and sports physicals as methods of verifying a student’s sex. Some students without birth certificates can use alternative documents to enroll that may or may not indicate sex. And according to the Kansas State High School Activities Association’s current sports physical form, genital exams are listed as part of the sports physical for males only and meant to be optional. Faflick said these genital exams are designed to check for hernias.

Beyond a physical exam, parents and physicians are asked to identify the student-athlete’s sex on the form, but it is unclear what would happen if that was challenged by a third party or they refused to answer. Faflick told PolitiFact the answers to those questions "will likely be part of policy as we move forward with policy development."

In response to questions from PolitiFact, the American Civil Liberties Union of Kansas said in a statement that it is concerned about numerous implications of the Kansas law, including how it will be enforced: "While the underdeveloped enforcement mechanisms for HB 2238 risk creation of alarming procedures that could infringe on a child athlete’s right to privacy and bodily autonomy, that is only one of the many issues with this discriminatory and unconstitutional bill."

The organization said it is "considering all available avenues for advocacy" regarding the law.

A tweet claimed that a new Kansas law will "authorize genital inspections of children in order for kids to play sports." 

Kansas’ Fairness in Women’s Sports Act, or HB 2238, prohibits transgender women from competing in women’s sports in public schools and the private schools that compete with them. It contains no language about physical examinations.

But the measure leaves it up to the state’s athletic association, and the governing boards of colleges and universities, to create rules and protocols to enforce the law. Those organizations have not yet decided how they will ensure the law is followed.

We rate this claim Mostly False.