LGBT rights in Kansas

Lesbian, gay, bisexual, and transgender (LGBT) people in Kansas face some legal challenges not experienced by non-LGBT residents. Same-sex sexual activity is legal in Kansas. Certain cities and municipalities have enacted anti-discrimination laws based on sexual orientation and gender identity, and state-level protections exist for state and public workers.

LGBT rights in Kansas
StatusLegal since 2003
(Lawrence v. Texas)
Gender identityAltering sex on birth certificate and other documents allowed
Discrimination protectionsSexual orientation and gender identity protections for state employees and contractors since 2019
Family rights
Recognition of relationshipsSame-sex marriage since 2014/2015
AdoptionSame-sex couples allowed to adopt

Two lawsuits, one in state court and the other in federal court, challenged the constitutionality of the state's ban on same-sex marriage, and on November 4, 2014, a U.S. District Court judge ruled Kansas' ban on same-sex marriage unconstitutional. His ruling was stayed as the state sought a stay pending appeal without success, and it took effect on November 12, 2014. From November 12, 2014, to the Supreme Court's ruling in Obergefell v. Hodges on June 26, 2015, marriage licenses were generally available to same-sex couples, but the State Government continued to deny recognition to same-sex marriages in all other respects.

History

Prior to European settlement of Kansas, there were no known social or legal punishments for engaging in homosexual activity. Among several Native American tribes, customs of "two-spirit" individuals existed: people who would dress, act and live as the opposite gender, as well as perform tasks associated with the opposite gender. Such individuals are known as míⁿxoge in the now-extinct Kansa language, spoken by the Kaw people. The Native Americans did not share the typical Western views of gender and sexuality.

In 1855, sodomy ("crime against nature") was made a felony with a penalty of "not less than ten years". In 1859, this was changed to "not more than 10 years". In the 1925 case of State v. Hulbert, the Kansas Supreme Court held that fellatio, whether heterosexual or homosexual, violated the state's sodomy statute. A comprehensive reform of the law in 1969 resulted in a penalty of six months in jail and/or a fine of 1,000 dollars. The revision also legalized heterosexual sodomy; Kansas was one of the first U.S. states to do so. In 1976, a proposed bill to repeal the now-only homosexual sodomy law was approved by the Kansas House of Representatives by a vote of 21 to 19. However, it failed to be considered in the Senate.[1]

In 1989, in State v. Moppin, the state Supreme Court held that cunnilingus did not violate the state sodomy statute. The Kansas Legislature acted quickly, passing a law the following year forbidding the "oral-genital stimulation between the tongue of a male and the genital area of a female." This law excluded lesbian relations but reintroduced criminal penalties for certain heterosexual conduct. In 1992, the law was amended to include lesbian relations as well.[1]

Sterilization against "habitual criminals", including those convicted under the sodomy law, has a long history in the state of Kansas. In 1913, the Kansas Legislature passed a law allowing the sterilization of state inmates. This law was unanimously upheld by the state Supreme Court in 1928. By the end of 1934, 1,362 people had been sterilized under the law; 19% via the procedures of castration or oophorectomy, which the state defended as "limit[ing] lewdness and vice". Through 1948, the number of sterilizations had reached about 3,000, the third-highest in the entire United States, a majority on the ground of "insanity and mental retardation". The law was finally repealed in 1965.[1]

Law regarding same-sex sexual activity

The U.S. Supreme Court's 2003 decision in Lawrence v. Texas rendered laws banning consensual sexual activity unenforceable, including that of Kansas.[2] State v. Limon, the first case decided under the Lawrence precedent, invalidated a provision of the state's Romeo and Juliet law that assigned harsher sentences in statutory rape cases where the parties were of the same sex.[3]

Recognition of same-sex relationships

Marriage
Main article: Same-sex marriage in Kansas

Same-sex marriage became legal in Kansas following the U.S. Supreme Court decision in Obergefell v. Hodges on June 26, 2015, which found the denial of marriage rights to same-sex couples unconstitutional. By June 29, the next business day after the decision, 25 of the state's 32 judicial districts were issuing licenses to same-sex couples, and some of those that were not had yet to receive an application from a same-sex couple.[4] By June 30, all judicial districts were either issuing same-sex marriage licenses or had announced their intention to do so. Kansas for the previous decade had recognized neither same-sex marriages nor any other form of legal recognition of same-sex unions. The state explicitly banned same-sex marriage and all other types of same-sex unions both by statute and by constitutional amendment.

The state's definitions and restrictions had been challenged in several lawsuits. On October 7, 2014, officials in Johnson County began accepting licenses for marriage applications, due to the Supreme Court's recent refusal to hear a Utah case now binding on Kansas. The state Attorney General filed a lawsuit in order to stop those actions. One couple obtained a marriage license and married on October 10, on the steps of the Johnson County courthouse. On October 10, 2014, the Kansas Supreme Court ordered officials in Johnson County to stop issuing marriage licenses to same-sex couples, though it allowed for court clerks to accept applications for marriage licenses from same-sex couples. It scheduled a hearing for November 6.[5]

On November 18, 2014, the Kansas Supreme Court ruled that Johnson County had been within its jurisdiction to issue marriage licenses to same-sex couples based on its interpretation of the law. It lifted the stay on Johnson County from issuing the licenses, but did not direct other counties to issue them.[6]

Judge Daniel D. Crabtree heard oral arguments on October 31, 2014 in another lawsuit in U.S. district court, Marie v. Moser.[7] He found the state's ban on same-sex marriage unconstitutional on November 4, but stayed enforcement of his ruling for a week.[8] The state sought a stay pending appeal without success from the Tenth Circuit Court of Appeals, and Crabtree's order preventing the state from enforcing its ban on same-sex marriage took effect on November 12 when the U.S. Supreme Court declined his request for a stay pending appeal.[9]

Domestic partnership

The cities of Lawrence and Topeka have established domestic partnership registries.[10][11]

Adoption and parenting

In November 2012, the Kansas Court of Appeals ruled in the case of In the Matter of the Adoption of I. M. that a single person who is not a biological parent of a child cannot petition to adopt that child without terminating the other parent's parental rights.[12] However, the Kansas Supreme Court ruled on February 22, 2013, in Frazier v. Goudschaal, that the partner of a biological parent may receive parental rights according to the best interest of the children in some circumstances, such as where there is no second parent and thus no termination of parental rights is involved, and the partner has assumed a parenting role of the children.[13]

Since the legalization of same-sex marriage, married same-sex couples have been allowed to adopt. In addition, lesbian couples can access in vitro fertilization and other assisted reproduction services. State law recognizes the non-genetic, non-gestational mother as a legal parent to a child born via donor insemination, but only if the parents are married.[14]

Kansas law allows adoption agencies to choose not to place children in certain homes if it would violate the agency's religious or moral convictions.[15]

Discrimination protections
Further information: LGBT employment discrimination in the United States
Map of Kansas counties and cities that have sexual orientation and/or gender identity anti–employment discrimination ordinances
  Sexual orientation and gender identity with anti–employment discrimination ordinance
  Sexual orientation and gender identity solely in state employment

Between 2007 and 2015, Kansas prohibited discrimination on the basis of sexual orientation or gender identity in government employment due to an executive order issued by Governor Kathleen Sebelius in August 2007.[16] Governor Sam Brownback rescinded that order on February 10, 2015.[17] In January 2019, Governor Laura Kelly, shortly after taking office, signed an executive order to protect Kansas state government employees and contractors from discrimination based on sexual orientation and gender identity.[18][19]

The cities of Fairway, Kansas City, Lawrence,[20] Leawood, Lenexa, Manhattan, Merriam,[21] Mission,[22] Mission Hills, Mission Woods, Olathe,[23] Overland Park, Prairie Village,[24] Roeland Park,[25] Shawnee, Westwood and Westwood Hills, as well as Wyandotte County, prohibit discrimination on the basis of sexual orientation or gender identity in government and private employment.[26][27]

Other cities, including the capital city of Topeka, Emporia and Hutchinson prohibit discrimination against city employees on account of their sexual orientation and gender identity. Likewise, the county of Shawnee[28] and the city of Wichita prohibit discrimination against city/county employees but on the basis of sexual orientation only.[29]

On November 6, 2012, the voters of the cities of Salina and Hutchinson both voted to repeal city anti-discrimination ordinances on the basis of sexual orientation and gender identity.[30]

In January 2014, Kansas House Bill 2453 was introduced which would have allowed people motivated by religious opposition to same-sex relationships to refuse to provide services to same-sex couples.[31] On February 12, the Kansas House of Representatives passed the legislation by a 72–49 vote.[32] The Kansas Senate did not take up the legislation.[33] It was part of a broader movement to anticipate resistance to the recognition of same-sex marriages.[34]

Since 2016, Kansas law has prohibited public universities from "[denying] a religious student association any benefit available to any other student association based on those organizations' sincerely held religious beliefs".

Hate crime law

At present, Kansas' hate crime law covers hate crimes based on sexual orientation. It does not cover gender identity. However, federal law has covered both categories since the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act was signed into law by President Barack Obama in October 2009.

Conversion therapy
See also: List of U.S. jurisdictions banning conversion therapy

In June 2020, Roeland Park, Kansas became the first city within Kansas (by an ordinance) to ban conversion therapy on minors.[35]

Gender identity and expression

Kansas allows transgender people to change their legal gender on their birth certificates, driver's licenses and other personal documents. Previously, it was one of the only three states in the U.S. to not do so. (Ohio and Tennessee being the other two).[36]

In October 2018, Lambda Legal filed a suit in court arguing that the policy of denying transgender people an updated birth certificate reflecting their gender identity is unconstitutional.[37] The move followed judicial decisions striking down similar bans in Idaho and Puerto Rico earlier that year.

In June 2019, Kansas became the 48th U.S. state to legally allow transgender individuals to change their gender on official documents, as the Kansas Department of Health and Environment had entered into a consent judgment. The judgment states that the department will issue documentation to transgender people reflecting their gender identity after the submission of a "personal sworn statement of gender identity". This would include providing a driver's license or passport with their new identity, or an affidavit from a physician or mental health professional attesting to the person's gender identity. The doctor would have to certify that "based on his or her professional opinion the true gender identity of the applicant and that it is expected that this will continue to be the gender with which the applicant will identify in the future".[38][39]

Public opinion

A 2017 Public Religion Research Institute (PRRI) opinion poll found that 57% of Kansas residents supported same-sex marriage, while 37% opposed it and 6% were unsure. Additionally, 67% supported an anti-discrimination law covering sexual orientation and gender identity. 26% were opposed.[40]

Public opinion for LGBT anti-discrimination laws in Kansas
Poll source Date(s)
administered		 Sample
size		 Margin of
error		 % support % opposition % no opinion
Public Religion Research Institute January 3-December 30, 2018 547 ? 70% 26% 4%
Public Religion Research Institute April 5-December 23, 2017 686 ? 67% 26% 7%
Public Religion Research Institute April 29, 2015-January 7, 2016 876 ? 68% 26% 6%
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References
  1. "The History of Sodomy Laws in the United States - Kansas". www.glapn.org.
  2. New York Times: "Supreme Court Strikes Down Texas Law Banning Sodomy," June 26, 2003, access April 16, 2011
  3. State v. Limon, 280 Kan. 275, 122 P.3d 22, October 21, 2005.
  4. Morrison, Oliver (June 29, 2015). "Some Kansas judges will not say whether they will issue same-sex marriage licenses". Wichita Eagle. Retrieved June 29, 2015.
  5. Johnson, Chris (October 10, 2014). "Kansas AG seeks to halt same-sex marriages in his state". Washington Blade. Retrieved October 10, 2014.
  6. "Same-sex marriage now allowed in most populous Kansas county". November 19, 2014 – via www.reuters.com.
  7. Hanna, John (October 31, 2014). "Kansas Urges Judge Not to Rule on Gay Marriage". ABC News. Associated Press. Retrieved October 31, 2014.
  8. Johnson, Chris (November 4, 2014). "Judge rules against Kansas same-sex marriage ban". Washington Blade. Retrieved November 4, 2014.
  9. Snow, Justin (November 12, 2014). "Supreme Court allows Kansas same-sex marriages to proceed". Metro Weekly. Retrieved November 12, 2014.
  10. Kellaway, Mitch (2014-05-28). "Topeka, Kan., Now Protects Gender Identity, Domestic Partnerships". Advocate.com. Retrieved 2014-06-29.
  11. Lawhorn, Chad (August 1, 2007). "Domestic partnership registry opens today". Lawrence Journal-World. Retrieved February 18, 2014.
  12. In re I. M. (Kan. Ct. App. 2012). Text
  13. "MARCI FRAZIER v. KELLY GOUDSCHAAL" (PDF). Retrieved 2013-11-02.
  14. "Kansas's equality profile". Movement Advancement Project.
  15. "Kansas Governor Signs Anti-LGBT Adoption Bill Into Law". www.advocate.com. May 18, 2018.
  16. "Sebelius order protects gay, lesbian state workers". Kansas City Business Journal. August 31, 2007. Retrieved February 18, 2014.
  17. "Brownback rescinds executive order that offered protections on basis of sexual orientation". The Topeka Capital-Journal. February 10, 2015. Retrieved February 10, 2015.
  18. Hanna, John (January 15, 2019). "Kansas governor expands ban on anti-LGBT bias to contractors". Miami Herald.
  19. Shorman, Jonathan (January 15, 2018). "Kelly reinstates protections for LGBT state workers in Kansas eliminated by Brownback". The Wichita Eagle.
  20. "Cities and Counties with Non-Discrimination Ordinances that Include Gender Identity". Human Rights Campaign. Retrieved May 25, 2013.
  21. "Non-Discrimination Ordinance | Merriam, Kansas - Official Website". www.merriam.org.
  22. Palmer, Kyle. "Prairie Village and Mission Just Approved LGBTQ Protections. What Cities Are Next?". www.kcur.org.
  23. "Olathe City Council passes non-discrimination ordinance". KSHB. December 4, 2019.
  24. Johnson, Michelle Tyrene. "Prairie Village Approves Ordinance Barring LGBTQ Discrimination". www.kcur.org.
  25. "Roeland Park reverses earlier vote, passes anti-discrimination ordinance; mayor breaks tie". Archived from the original on 2014-11-28. Retrieved 2014-08-18.
  26. "Kansas City, Kan., Bans Anti-LGBT Discrimination". www.advocate.com. June 2, 2018.
  27. "Kansas' Equality Profile". Movement Advancement Project.
  28. "SHAWNEE COUNTY HUMAN RESOURCES POLICY MANUAL December 2008" (PDF).
  29. Campaign, Human Rights. "MEI 2018: See Your City's Score". Human Rights Campaign.
  30. "Salina & Hutchinson repeal anti-discrimination protections". Archived from the original on October 23, 2013. Retrieved 2013-11-02.
  31. Lowry, Brian (February 14, 2014). "Kan. Senate president: Bill that allows service refusal to same-sex couples on religious grounds unlikely to pass". The Wichita Eagle. Archived from the original on February 15, 2014. Retrieved February 15, 2014.
  32. "Kansas House passes bill allowing refusal of service to same-sex couples". Cnn.com. 2014-02-13. Retrieved 2014-06-29.
  33. Hanna, John (February 18, 2014). "Kansas Senate won't consider gay couples discrimination bill". Topeka Capital-Journal. Retrieved February 19, 2014.
  34. Merevick, Tony (February 19, 2014). "In One Day, Bills Allowing Anti-LGBT Discrimination Fail In Four States". BuzzFeed. Retrieved February 19, 2014.
  36. Kansas, National Center for Transgender Equality
  37. "LGBT Group Files 'Civil Rights' Lawsuit Against Kansas for Requiring Birth Certificates That Detail Biological Sex". Faithwire. October 18, 2018.
  38. "Kansas to allow trans residents to change birth certificates". NBC News. June 25, 2019.
  39. "Kansas to allow transgender people to change their gender on birth certificates". The Wichita Eagle. June 24, 2019.
  40. "PRRI – American Values Atlas". ava.prri.org.
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