Although it was widely reported as a “transgender bathroom bill,” Kansas state legislators this week passed a Women’s Bill of Rights, overriding the veto of the state’s governor, Laura Kelly. There was bipartisan support for the bill, with the override vote being 84-40 in the House, and 28-12 in the Senate. This is an historic occasion, and similar legislation is now being considered in several states.

SB180, is a simple, two-page affair, but its effects are far-reaching. The most important parts of the bill are the definitions it provides of the male and female sex, the establishment of intermediate constitutional scrutiny on the basis of sex, and the mandate for all state entities which collect data to disaggregate the data by sex. Let’s take each in turn.

First, for anyone who has ever wondered, “what is a woman?”, Kansas offers a definition of sex that sidesteps all the debate over issues such as chromosomal makeup.

The bill says a person’s sex is “such individual’s biological sex, either male or female, at birth,” and that a female “is an individual whose biological reproductive system is developed to produce ova” and a male “is an individual whose biological reproductive system is developed to fertilize the ova of a female.”

It establishes that the terms “woman” and “girl” refer to human females, and that the terms “man” and “boy” refer to human males.

And it says, “with respect to biological sex, the term ‘equal’ does not mean ‘same’ or ‘identical’” and establishes that, “with respect to biological sex, separate accommodations are not inherently unequal.”

While there are certainly disorders of sexual development that can profoundly alter sexual phenotypes, either through genetic anomalies or other mechanisms, there are only two gametes in our species: ova and sperm. Every disorder of sexual development in human beings is a variant on the typical path to develop one or the other gamete. The materiality of sex is thus foregrounded by SB180, and terms that have been in use for millennia, such as “woman,” “man,” “mother” and “father” are tied once more to that materiality.

Second, there has always been a tension between our understanding that sex is a material reality with real-world consequences, and anti-discrimination law. That is why, for example, we periodically see calls for requiring the military draft apply to both males and females.  The material reality of sex can be the only ground for law which discriminates justifiably, while continuing to prohibit unjustifiable discrimination, such as refusing women the right to voluntarily serve in the armed forces.

Perspective: Our language is being corrupted
Perspective: Why women are increasingly politically homeless

The Kansas bill is useful in setting out how the concept of “intermediate constitutional scrutiny” assists lawmakers in making that important distinction. It says:

“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 governmental objectives.”

The objective of protecting the health, safety and privacy of individuals, for example, allows “distinctions between the sexes with respect to athletics, prisons or other detention facilities, domestic violence shelters, rape crisis centers, locker rooms, restrooms and other areas where biology, safety or privacy are implicated ... .”

That is, when important government interests in safety, privacy, and fairness in physical competition exist, laws that distinguish between the sexes can be upheld. Such laws cannot be legally deemed discriminatory unless it is shown that those important objectives were not involved.

As SB180 puts it, “with respect to biological sex, separate accommodations are not inherently unequal.” The bill restores single-sex spaces, while not prohibiting any gender-neutral spaces also being devised, as well.

Last, and not least in importance, if any data on Kansas citizens is collected by a state agency or public school, the collection will include data on sex as determined at birth.

Again, this does not preclude the collection of data on other characteristics, such as sexual orientation or gender identity, but rather insists that sex must also be recorded according to the definitions of the law. This is extremely important, because we know that there are many things in this world — medical conditions, patterns of criminality, pay and so forth —that differ by sex. A society intent on understanding its citizens and their needs cannot do its job if data on those citizens cannot be disaggregated by sex.

Kansas should be applauded for reinstating common sense into the legislative disputes concerning sex and gender. It can be imagined that the U.S. Supreme Court is paying attention, for the court will be taking on several cases in which the tension between the material reality of sex and goals of anti-discrimination is keenly felt. Threading this needle is extremely important to our society, and extremely difficult to do. 

Kansas still has its work cut out in devising a criminal code for violations of the law, and all eyes will be on Kansas as it attempts to do so. Even so, Kansas has shown the way. Where the materiality of sex matters, such as in prisons, rape shelters and sports, taking material sex into consideration is not discriminatory. 

The state motto of Kansas is “Ad astra per aspera” — to the stars, through difficulties which seems particularly appropriate today. Kansas has cut the Gordian knot; may other states, including Utah, take note of its achievement.

Valerie M. Hudson is a university distinguished professor at the Bush School of Government and Public Service at Texas A&M University and a Deseret News contributor. Her views are her own.