Kansas Bigots Succeed At Bigotry, Fail At Veto Override

Trans kids' health care is safe for another few months.

Kansas Gov. Laura Kelly, a nice lady

Two weeks ago, Kansas’s Democratic woman governor Laura Kelly vetoed two anti-abortion bills and one other, SB 233. That bill would ban all medical gender-related care in the state for people under 18 using an impressive array of sanctions: This shit was serious. Medical malpractice insurance would not be allowed to cover lawsuits for damages relating to pediatric and adolescent gender related care. Parents could sue for any care provided, as could the recipient of such care. Additionally, regardless of whether any lawsuits materialized, any licensed health provider would lose their license automatically “notwithstanding any provision of law to the contrary.” Finally, no state buildings could be used nor could state employees act to “provide or promote the use of social transitioning” while on the job. Among other things, this might mean that children’s services employees would not be allowed to call kids by the names they choose for themselves — but only if they’re trans. Cis kids get all the nicknames they want.

This bill was wack, yo.

So the veto two weeks ago was, to say the least, welcomed by trans families. But despite that sigh of relief coming from the country’s geographic centre two weeks ago, the final word on the bill had yet to be spoken. Three years in a row the Kansas Legislature had passed bills to ban trans participation in children’s gendered sports, and three years in a row they had fought to override the governor’s veto. In 2021 and 2022 they failed, but in 2023 they succeeded, putting into place the state’s current ban. The general assumption was that Republicans had the two-thirds majority necessary to override, but that required no more than one defection. The next 10 days were tense.

On Monday the Lege met to finish up its session with votes on overturning Kelly’s veto. The Senate’s conversation was unusually emotional, with a confrontational tone set by the question, “What is the acceptable number of youth suicides?” This gauntlet thrown by Sen. Mary Ware (D - You had to ask?) mussed Republican faces, leading to not a little bit of defensiveness, per the Kansas Reflector:

Sen. Beverly Gossage, R-Eudora, said she receives “beautiful cards” and emails from parents who thank her for pursuing the legislation.

“We all sympathize to those who are suffering from gender dysphoria,” Gossage said.

Narrator: Gossage does not, in fact, sympathize with anyone.

Sen. Mark Steffen, R-Hutchinson, said the predators in today’s society are “woke” health care providers who are preying on “confused” children and parents.

“No more than we would ever tell somebody with anorexia that they’re fat would we tell a boy that they’re a girl or girl that they’re a boy,” Steffen said.

After writing their own hagiographies, the GOP-dominated state Senate successfully moved to override Kelly’s veto 27-13 on a party line vote.

The state house, SPOILER, was a different story. While originally the bill passed 82-39, the Republicans had four abstentions, presumably because they didn’t like the bill but also didn’t want to vote against it on the record, opening themselves up to a primary challenge. Since 82-43 would lose the vote, the party fought to keep its original votes and prevent the abstentions from voting against the override. They did neither.

While the Republican majority went to great lengths, even locking the doors and using a procedural rule to force everyone present to vote yea or nay, two of the abstentions became no votes (Rep. Mark Schreiber and Rep. David Younger), and two became yes votes. While an 84-41 vote would have prevailed, two of the original yes votes switched sides (Rep. Susan Concannon and Rep. Jesse Borjon), voting to sustain Kelly’s veto. The effort to override ultimately lost by exactly the 82-43 margin House leaders feared, even if two of the no votes were unexpected. Concannon, the more outspoken of the pair of noble flip-floppers, explained her vote in typically conservative terms, and we’ll take it:

“We hear about mental health, about suicide, and ask why,” Concannon said. “We’re not listening to the impact of youth. Government involvement is not the answer.”

While not all sunshine and roses — Borjon would have been willing to vote yes on a surgery-only ban — this was a hugely positive outcome. It had secret Wonkette girlcrush Erin Reed of Erin in the Morning downright optimistic:

[R]ecent months have cast doubt on the willingness of Republicans nationwide to continue targeting transgender people using the legislative process, at least prior to the upcoming election, where such positions may be seen as ideologically extreme.

While yr Wonkette is too cynical to be optimistic just yet, Reed does have a point here. The Supreme Court case that put some Footnote 4 teeth back in to the rational basis test was Romer v. Evans, challenging Colorado’s Amendment 1. There’s a reason that it addressed that citizen initiative and not Measure 9 out of Oregon, and that’s because while the two amendments were functionally similar in legal effect, Measure 9 included language asserting “homosexuality” to be “abnormal, wrong, unnatural, and perverse.” This was widely considered gratuitously mean-spirited and in the aftermath of the measure’s defeat the prime reason that Measure 9 failed when other anti-queer initiatives were passing around the country.

While US voters have a long history of enthusiastically restricting the rights of others, they prefer to do so in ways that don’t get them called bigots. With the insulating effect of voting for legislatures rather than issues, and the strong protections for incumbents observed in primary elections, it’s not clear how much Republicans are affected by the criticisms of their treatment of minorities, particularly QT and religious minorities.

New bans on trans medical care also face pushback from the courts. On the same day that the Kansas Republicans tried and failed to force SB 233 through, the Fourth Circuit Court of Appeal released its decision in a pair of cases that fought such bans. “Obviously discriminatory,” was the opinion of the court in ruling for North Carolina government employees and West Virginia Medicare recipients. The opinion read:

[T]he exclusions cannot function without relying on direct—not just proxy-based—discrimination. [… D]etermining whether a treatment like reduction mammoplasty constitutes “transsexual surgery” or whether a testosterone supplement is prescribed in connection with a “sex change[] or modification[]” is impossible—literally cannot be done—without inquiring into a patient’s sex assigned at birth and comparing it to their gender identity. Indeed, those procedures are routinely covered by the Plan and Program in situations where the only material difference is the patient’s sex.

Erin Reed was quite predictably delighted with this as well, pointing out,

The decision will likely have nationwide impacts on court cases in other districts. The case had become a major battleground for transgender rights, with dozens of states filing amicus briefs in favor or against the protection of the equal process rights of transgender people. Twenty-one Republican states filed an amicus brief in favor of denying transgender people anti-discrimination protections in healthcare, and 17 Democratic states joined an amicus brief in support of the healthcare rights of transgender individuals.

Of course, that nationwide impact could be upended at any moment should our certainly unbigoted, non-corrupt Supreme Court take time out from shielding Trump from the natural consequences of not being a hereditary monarch to chuck Bostock, Romer, and six or eight other important precedents in the Potomac.

Even so, a corner might have been turned. After all, it was much easier to demonize gender-related care back when no one knew anything about it. The more Republicans flog the issue, the more the media will have to explain what such care is, what the safeguards are, and how damn little regret there actually is among trans patients, especially relative to other major medical and life decisions. Continuing the flogging after voters are more aware of the minor risks and major benefits of informed, affirming care runs an increasing risk that voters will use their safeword and end the GOP’s fun.