Kansas Legislature overrode Gov. Kelly's veto to enact HB 2138 school overnight-lodging biological-sex mandate

On April 27, 2023, the Kansas Senate voted 30-9 to override Gov. Laura Kelly's veto of Senate Substitute for House Bill 2138, completing the bill's enactment over the governor's objection. The Kansas House of Representatives had voted 85-39 to override the same veto the previous day, April 26, 2023. Kelly had vetoed the measure, which was returned to the House on April 20, 2023. The originating substitute was produced by the Senate Committee on Education.

The enacted law requires the board of education of each school district to adopt a policy providing that "separate overnight accommodations be provided for students of each biological sex" during school-district-sponsored travel requiring overnight stays. The statute defines "biological sex" as "the biological indication of male and female in the context of reproductive potential or capacity, such as sex chromosomes, naturally occurring sex hormones, gonads and nonambiguous internal and external genitalia present at birth, without regard to an individual's psychological, chosen or subjective experience of gender." Because the definition expressly disclaims gender identity, the facially sex-based lodging rule requires transgender students to be housed according to the sex they were assigned at birth rather than their gender identity. The law also creates a private cause of action for students who report violations and face retaliation.

The measure took effect July 1, 2023, and was published as Chapter 87 of the 2023 Session Laws of Kansas. Legislative leaders who backed the override described it as protecting the "safety and privacy" of schoolchildren on district trips, while the statute's own text ties the accommodation requirement to a birth-anatomy definition of sex that excludes an individual's experience of gender.