SCOTUS Decision: Ban on "Talk" Conversion Therapy is Unconstitutional

[Calm]

3 hours ago, smac97 said:

Sex-segregated spaces impose some difficulties on a statistically small - even tiny - number of men.

What about transgender men/biological women?  Di you think they may have difficulties using women’s restrooms, they might be harassed, recorded, threatened as well? (Maybe not hands on physically threatened in that moment though might be given some behaviour by offended women I have seen, but put at risk by being recorded, doxxed, etc)?

Edited 23 hours ago by Calm

[webbles]

1 hour ago, Analytics said:

Sexual assault, voyeurism, spying, exhibitionism, etc., are all awful and are prosecuted aggressively, as they should be.

I think it would be pretty easy to determine sexual assault, but the others you mentioned (voyeurism, spying, exhibitionism).  How would we prosecute them?  I've been in locker rooms where if the same behavior was done outside of a locker room, it would be considered exhibitionism.  Or how do we say that someone is spying.  Say a person in a locker says that another is spying, then what?  We don't have cameras in locker rooms.  And if the person being accused is a trans person, wouldn't they see it as an attack on them and rightfully defend themselves?  That's where I come from.  Sex segregated places made it a bit easier to determine if someone was being nefarious.  A person could accuse another person and if the accused happened to be the wrong gender, then it was a simple case.  But that's no longer the situation.  Now, it seems like we have to have actual assault before any prosecution can happen.

[smac97]

53 minutes ago, Calm said:

Quote

Sex-segregated spaces impose some difficulties on a statistically small - even tiny - number of men.

What transgender men/biological women?  You don’t think they have difficulties using women’s restrooms, they won’t be harassed, recorded, threatened as well? (Maybe not physically threatened on that moment, but put at risk by being recorded, doxxed, etc)?

I think I have addressed this at substantial length.

"The discomfort that can arise in edge cases under a sex-based rule is real.  I acknowledge that."

"The awkwardness that can create for the individual woman who has chosen to present herself as being male (or vice versa) is real.  So is the alternative of letting identity or presentation override sex, which creates a different and broader set of costs for the people the female (or male) category was created to protect, and it eliminates any stable limiting principle."

"Highly masculinized females remain female under a sex-based criterion; they use the women’s facility. The awkwardness that can arise in those edge cases is real. It is still a different—and smaller—problem than admitting anyone into women's space on the basis of subjective identity or appearance (or not even based on that)."

"The discomfort this creates for some individuals who present or identify differently is real, but it does not require us to redefine the category or surrender the boundary"

"I acknowledge that rule will sometimes produce awkward situations for people whose appearance does not match their sex. That is a real cost. But then, the alternative rule (access according to self-identification) also produces costs: loss of privacy, safety concerns, and competitive unfairness for the group the spaces were created to protect."

"In short, the policy requires people to use the facility that matches their sex. Residual social friction for a small number persons is a genuine downside worth managing with good complaint procedures and common sense.  But I think it is not a reason to abandon the sex-based boundary that protects the group for whom the spaces were created: women and girls."

"Sex-segregated spaces are created and maintained for the benefit of women and girls, or half the population.  I think the Kansas legislature passed the law to benefit woman and girls.  Sex-segregated spaces impose some difficulties on a statistically small - even tiny - number of men."

"The awkwardness that can create for the individual woman who has chosen to present herself as being male (or vice versa) is real.  So is the alternative of letting identity or presentation override sex, which creates a different and broader set of costs for the people the female (or male) category was created to protect, and it eliminates any stable limiting principle."

"A consistent sex-based rule will sometimes create awkward or painful situations for people whose appearance or identity diverges from their sex. That is a genuine cost, and practical accommodations (single-occupancy options, etc.) can reduce it without erasing the boundary.  But the alternative rule, access by self-identification, imposes a different set of costs on the far larger group for whom the spaces were created, and it removes any stable limiting principle. Once sex is no longer the criterion, there is no coherent basis for excluding any male."

"On the specific example: a sex-based rule does mean that a female person who has taken steps to appear male still uses the women’s facility (or a single-occupancy option where available). That can be awkward for the individual. The alternative rule of letting identity or appearance control means male people who identify or present as female, and anyone else as well, gain access to women’s facilities. That creates a different set of costs, borne by the women the space was created to serve, and it removes any stable way to exclude males who might exploit the rule."

"So as between the seemingly competing and incompatible interests and preferences of (A) biological women and girls and (B) biological males  who, having taken cosmetic, medical and sartorial measures to deliberately appear and "identify" as women, which set of interests and preferences should prevail?  In my view, I think the prevailing group should be the one for whom sex-segregated spaces were created: biological women and girls."

It appears that we differ in a few things, but we both acknowledge that the Kansas law can have some adverse effects on men who "identify" as women and so want to enter women's bathrooms.  Where we differ is whether the alternative approach has some adverse effects on women and girls (for whom sex-segregated facilities were intended to protect).

Thanks,

-Smac

 

Edited 22 hours ago by smac97

[smac97]

3 hours ago, Analytics said:

On these legal issues, I'll give some background on Kansas.

"Background" about abortion?  How does that relate to sex-segregated bathrooms?

3 hours ago, Analytics said:

Under the Kansas state Constitution, women here still have a Constitutional right to abortions.

Yes.

3 hours ago, Analytics said:

The religious right has been fighting this furiously. The Kansas legislature had basically outlawed second-term abortions, and this was successfully challenged in court and ruled unconstitutional under the state Constitution. In Hodes & Nauser v. Schmidt (2019) the Kansas Supreme Court ruled 6–1 that this language protects a fundamental right of personal autonomy including bodily integrity, self-determination, and decisions concerning one's body, health and family life. The court concluded that deciding whether to continue a pregnancy falls within that protected sphere. This was reaffirmed in 2024. 

We should expect to see varying constitutional analyses in the state appellate courts.

3 hours ago, Analytics said:

The religious right continues to fight against this by trying to change the Constitution and most recently by changing how supreme court judges are selected, but they continue to fail.

I'm not sure why you are bringing up abortion or the "religious right's" efforts pertaining to it.  Could you clarify how this is relevant to sex-segregated bathrooms?

3 hours ago, Analytics said:

Given how the citizens of Kansas enjoy an outsized fundamental right to personal autonomy, bodily integrity, self-determination, decisions about your own body, health, and family life, I'm guessing this will be a strict scrutiny case in Kansas,

"This" being sex-segregated bathrooms?

Oddly, the Kansas legislature has apparently attempt to enact a statute setting the level of constitutional analysis is set by statute:

Quote

Laws and rules and regulations that distinguish between the sexes are subject to intermediate constitutional scrutiny. 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. Notwithstanding any provision of state law to the contrary, 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 result in separate accommodations are substantially related to the important governmental objectives of protecting the health, safety and privacy of individuals in such circumstances.

I haven't looked into this, and I have no experience with Kansas jurisprudence, but it seems almost axiomatic that under basic separation-of-powers principles, the judiciary, not the legislature, determines what standard of review the state constitution requires and whether a particular law satisfies it. A statute can supply definitions, substantive rules, and legislative findings, but it cannot dictate to the courts the applicable constitutional test or compel a finding that the test is met.

That said, I think you "it's all political" approach to jurisprudential thought is not a reliable thing.  Moreover, because the statute on its face differentiates based on sex, it necessarily requires strict scrutiny.  There are three standards:

• (1) the rational basis standard, which requires only that the enactment bear some rational relationship to a legitimate state interest;
• (2) the heightened or intermediate scrutiny standard, which requires the enactment to substantially further an important state interest; and
• (3) the strict scrutiny standard, which requires the enactment serve some compelling state interest and be narrowly tailored to further that interest. The determination of which of the three standards applies depends on the nature of the right at stake.

The second on applies.  Generally, under intermediate scrutiny, a law or government action must serve an important (or significant) government interest, and the means used to achieve that goal must be substantially related to the interest. The government holds the burden of proof to justify its action.  I asked Grok to take a stab at guessing how things will turn out:

Quote

Under intermediate scrutiny the Kansas law has a realistic path to survival, though it is not guaranteed.

Intermediate scrutiny requires the State to show that sex-based distinctions are substantially related to an important governmental objective.

Arguments that favor the law

• Privacy, safety, and bodily security in spaces involving undress or vulnerability (restrooms, locker rooms, etc.) are routinely treated as important governmental objectives.
• Separating those facilities by biological sex is a long-standing, direct means of advancing those interests. Courts have repeatedly accepted this fit in analogous settings.
• K.S.A. 77-207 itself declares that such distinctions meet the standard; while not binding on the courts, it supplies legislative findings the State will rely on.
• The law tracks biological sex rather than creating a novel or arbitrary classification.

Arguments that cut against it

• Challengers will contend the fit is insufficiently tight—that the law sweeps too broadly, ignores transgender individuals’ interests, or is pretextual.
• They may also argue that intermediate scrutiny is too lenient and that the Kansas Constitution’s autonomy/privacy protections demand stricter review (the Hodes framework).
• Evidence of legislative process or animus, if credited, could undermine the “important objective” or “substantial relation” showing.

Bottom line: If the court applies genuine intermediate scrutiny and accepts privacy/safety in sex-separated intimate facilities as important objectives, the law is more likely than not to be upheld. The principal risk is that the Kansas courts elevate the standard (via Hodes-style autonomy or equal-protection reasoning) or find the means-end fit lacking on the specific facts developed in litigation.

We'll see.

3 hours ago, Analytics said:

and that the big-government Christians will lose again.

Interesting that you keep attempting to frame litigation in provocative, slanted terminology.

Anyway, in March the court in Doe "denied a requested temporary restraining order to block enforcement of the law":

Quote

What is required for a temporary restraining order?

Listed below are the requirements for a TRO:

• To demonstrate a successful likelihood of proving the ACLU's claims, which included procedural due process and right to personal autonomy; right to equality under the law; right to informational privacy; right to free expression; and violation of single subject and clear title.

• To prove that there will be immediate irreperable harm.

• To show that the threatened injury of the transgender plaintiffs are greater than the harm that could happen to the defendants.

• To show the the TRO would serve the public's interest.

• To show no other adequate solution other than a TRO.

Why Douglas County District Judge James McCabria ruled against a TRO?

The biggest ruling made by McCabria is that the plaintiffs' team failed to fill the burden of proof under the TRO requirements.

Another point made in his ruling is that multiple sets of claims by Kobach and the ACLU are unsubstantiated with specific incidents or facts.

"But the Court cannot fairly analyze important concepts like injury to personal autonomy, informational privacy or equality under the law (or even determine whether they apply) without examining well-developed factual scenarios that have been subjected to challenge and debate," McCabria wrote in his ruling. "Courts should not exercise the tremendous power of an injunction on speculation."

More here:

Quote

The judge, an appointee of former Republican Gov. Sam Brownback, asserted that acting hastily to invalidate a state law “risks the appearance of either political bias or lack of appreciation for the value and importance of the full, fair deliberative process in such circumstances.”

He found that ACLU staff attorney Harper Seldin fell short on the first two elements necessary to justify a temporary restraining order — demonstrating a likelihood of the plaintiff’s success based on the merits of the claim and showing that there would be immediate, irreparable harm if the court did not intervene.

While certainly not definitive, that the plaintiffs' failure to establish a substantial likelihood of prevailing on the merits of the underlying claims (the article above references "successful likelihood," but that may be a typo) would not normally be encouraging to the plaintiffs.  In cases such as this there really isn't a factual dispute, but rather the dispute pertains to constitutionality.  If they could not demonstrate a likelihood of prevailing at the outset of the case, I'm not sure much will change in the future.

3 hours ago, Analytics said:

We'll see if their luck finally changes.

Yes, we'll see.

Sex-based separations in bathrooms, locker rooms, and similar facilities have long been treated as constitutionally permissible. Federal courts in recent years have generally upheld biological-sex rules in analogous settings (schools, prisons, etc.), and the U.S. Supreme Court’s 2025 Skrmetti decision applied only rational-basis review to a related transgender regulation.

Thanks,

-Smac

Edited 20 hours ago by smac97

[Calm]

2 hours ago, smac97 said:

think I have addressed this at substantial length.

It was just strange to me you referenced solely the men who would feel awkward and not the women.  I was trying to figure out what you were talking about….I assumed you yourself were referring to trans women, the edge cases in your view who do not visually look like they should be in a woman’s bathroom and was wondering if you saw something different between the cases.   I didn’t mean you to repeat everything, didn’t mean to make you work, could have just said something along the lines of left out the biological women, but they are included, of course, in the same line of reasoning. 

Edited 20 hours ago by Calm

[smac97]

5 minutes ago, Calm said:

It was just strange to me you referenced solely the men who would feel awkward and not the women.  

We're at a pretty pass when I have to ask you to clarify what you mean by "men" and "women."

I think many women and girls do not want men in women's bathrooms.  I think plenty of men feel the same about women in men's bathrooms, but less due to safety concerns and more due to privacy/dignity concerns.

5 minutes ago, Calm said:

I was trying to figure out what you were talking about….I assumed you yourself were referring to trans women, the edge cases in your view who do not visually look like they should be in a woman’s bathroom and was wondering if you saw something different between the cases.   I didn’t mean you to repeat everything, didn’t mean to make you work, could have just said something along the lines of left out the biological women, but they are included, of course, in the same line of reasoning. 

Okay.  Glad we cleared that up.

Thanks,

-Smac

[Calm]

2 minutes ago, smac97 said:

We're at a pretty pass when I have to ask you to clarify what you mean by "men" and "women."

 

Given you and others don’t view trans women as women or trans men as men, if I leave off trans or biological, I mean biological.  I try to speak the language of those I am speaking with using words as they do unless I specify I don’t.  

[Calm]

18 minutes ago, smac97 said:

think many women and girls do not want men in women's bathrooms.  I think plenty of men feel the same about women in men's bathrooms, but less due to safety concerns and more due to privacy/dignity concerns.

I completely agree.  I don’t myself.  That’s why I see an issue with the edge cases where someone can visually pass as the other sex.  I would prefer to have a passing trans woman use the restroom I am in rather than a passing trans man.  If that ever happens to me, I will be mildly freaked.  
 

Added:  that freak will include significant vicarious anxiety and discomfort I assume the other will be feeling as most likely they really, really don’t want to be there.

Edited 19 hours ago by Calm

[smac97]

3 minutes ago, Calm said:

I completely agree.  I don’t myself.  That’s why I see an issue with the edge cases where someone can visually pass as the other sex.  

Okay.

3 minutes ago, Calm said:

I would prefer to have a passing trans woman use the restroom I am in rather than a passing trans man.  

Okay.  Seems like the negation of sex-segregated spaces, since what counts as "passing" and what does not is almost certainly unworkable.

3 minutes ago, Calm said:

If that ever happens to me, I will be mildly freaked.  

What about just a regular guy, not a man dressed and "passing" as a woman, but a straight-up man?  Don't see how to exclude them.

Thanks,

-Smac

[Calm]

6 minutes ago, smac97 said:

Seems like the negation of sex-segregated spaces, since what counts as "passing" and what does not is almost certainly unworkable.

Just like is and isn’t porn.

[Calm]

8 minutes ago, smac97 said:

Okay.

Okay.  Seems like the negation of sex-segregated spaces, since what counts as "passing" and what does not is almost certainly unworkable.

What about just a regular guy, not a man dressed and "passing" as a woman, but a straight-up man?  Don't see how to exclude them.

Thanks,

-Smac

I don’t care as long as they behave themselves.  How would I even know to care if they pass as a woman?

Edited 19 hours ago by Calm

[MustardSeed]

Curious- how you would advise: 

A client in therapy who has never dressed trans in public shows up one day in session dressed trans.  Dress, heels, wig, but has facial hair.  Asks which restroom to use.  

You trust this client to be safe for others but cannot predict how safe the client will be in either situation.  
 

What do you recommend? I’m dealing with that this week.   

[bluebell]

1 hour ago, MustardSeed said:

Curious- how you would advise: 

A client in therapy who has never dressed trans in public shows up one day in session dressed trans.  Dress, heels, wig, but has facial hair.  Asks which restroom to use.  

You trust this client to be safe for others but cannot predict how safe the client will be in either situation.  
 

What do you recommend? I’m dealing with that this week.   

That's hard.

Would it be appropriate to tell them that you trust them to be safe in the women's restroom but cannot predict how others will respond to them?  Then the decision would be theirs.  Not sure if that would work or not in a liability situation though.  Are there laws in your state that dictate what restroom a person must use?

[Analytics]

19 hours ago, smac97 said:

You being an actuary, I am curious.  Here is my understanding:

• Actuaries price and reserve on the basis of factors that demonstrably correlate with claim costs.
• Sex is one of the strongest and most persistent of those factors in mortality, certain morbidity, and some casualty lines (especially young-driver auto).
• Male and female populations show different average life expectancy, different patterns of cardiovascular disease, cancer, disability, and (at younger ages) accident frequency/severity.
• Those differences are biological and behavioral in origin; and are therefore not created by the gender marker on a license.

Are these substantively accurate statements?

Continued:

• If a risk truly varies by biological sex, recording or pricing a biological male as “female” (or vice versa) does not improve the data—it introduces misclassification error. For example, hormone therapy and surgery change some risk factors (e.g., certain hormone-dependent conditions, thromboembolic risk) but do not rewrite the entire sex-based risk profile.
• Where the carrier has credible experience or medical evidence that a transitioned person’s residual risk now more closely resembles the identified sex, some will adjust. Where it does not, birth sex (or a substandard rating that reflects the actual medical history) remains the more accurate approach.
• Broadly speaking, actuaries do not treat “identifies as a woman” as automatically equivalent to “is female for risk purposes.”
• Practices differ by product, carrier, and jurisdiction.
• When sex is a material rating factor, the safer and more common actuarial default is still biological sex / sex at birth, supplemented by individual medical underwriting.
• Self-identified gender is used more often when required by law, by document-matching convenience, or when the carrier has decided the residual risk difference is small enough to absorb.

I am really out of my field here, hence my request for your input.  From the outside looking in, I would think that from a pure data-quality standpoint, if the risk varies by sex, labeling a person according to subjective "self-identity" rather than sex reduces, rather than enhances, the usefulness of the classification.

How do you, in your professional capacity as an actuary, define "woman"?

My thoughts.

First, mortality tables are a model, and George Box’s warning about models applies: “All models are wrong, but some are useful.”

When actuaries develop mortality tables, we look at a giant population of people, some of whom we have labeled as “male”, and some of whom we have labeled as “female”. We then look at how many people are alive at various ages, how many people die at each age, and calculate mortality rates. Then we’ll do some smoothing, and a mortality table results.

Companies might then adjust industry tables based on their own data under the belief that their own population of insured individuals isn’t homogenous with the industry as a whole.

Regarding regulations, there are non-discriminatory laws, but in general U.S. companies are free to ask people their birth sex or their chosen gender, and according to industry surveys, it’s about 50-50 on companies choosing one or the other.

There is a study entitled "A long-term follow-up study of mortality in transsexuals receiving treatment with cross-sex hormones” that indicates that such people have a 50% higher mortality rate. Putting that into perspective, a 43-year old female non-smoker has a life expectancy of 44.5 years. Increase her mortality rate by 50%, and her life expectancy drops to 41.0 years. For a life insurance policy, that might mean the premium for the transexual with a 50% higher mortality rate would need a 20% higher premium.

So if we assume 1% of an insured block is transgender and is paying a premium that is 20% too low, that would mean that in aggregate, the premium for the entire block is 0.2% too low. However, that is probably overstating it, because the base mortality rate probably already includes 1% transgender people with their higher mortality rate, which would mean the 1% who is getting a 20% discount is offset by the 99% who are paying, on average, 0.2% too much. Can you see how this gets very complicated and is marginal?

There is also a study that says the difference of mortality between men and women is 20% biology, and 80% lifestyle. 

That is why I think most actuaries would agree with what Jonah von der Embse, FSA, CERA, MAAA said in an award-winning essay. He first explained, from a statistical point of view “Gender and sex are far from “binary, objectively determinable” characteristics, and there will never be a clean-cut way to sort them into two buckets.” He concluded that  the most fair way to price insurance might be to just use unisex rates, he then said:

“If actuaries (and regulators) decide to continue using sex or gender to assess risk, the next step would be to settle on consistent use – should actuaries use sex, gender, or sex assigned at birth? Gender expression would appear to be the most client friendly option, especially for transgender individuals. However, in a ‘male/female’ world, this option would not work for non-binary individuals. Sex assigned at birth is another logical option, but this may be a challenging data point to collect from a privacy standpoint, and it may be hard to justify, for example, the use of male rates for a fully transitioned transgender female.”
 
Again, mortality differences between men and women are 20% biology and 80% lifestyle. Men are about 4 times more likely to be hit by lightening. That isn’t because XY chromosomes have subtle electromagnetic properties that attract lightening. It’s because men are 4 times more likely to be in places where lightening strikes: fishing, boating, swimming, the golf course, the construction site, etc. 

Edited 5 hours ago by Analytics

[Analytics]

15 hours ago, smac97 said:

"Background" about abortion?  How does that relate to sex-segregated bathrooms?

No, about the contents of the Kansas State Constitution and the sensibilities of our State Supreme Court. 

15 hours ago, smac97 said:

Yes.

We should expect to see varying constitutional analyses in the state appellate courts.

I'm not sure why you are bringing up abortion or the "religious right's" efforts pertaining to it.  Could you clarify how this is relevant to sex-segregated bathrooms?

The law didn't come about because a coalition of police officers, district attorneys, psychologists etc. explained that this law was necessary in order to better protect the vulnerable people of our society. It came about because the religious right watches Fox News and related hate-filled "news" sources and decided this was something to be angry about. Rather than having a full open debate on the issue that involved experts weighing in on the implications of the matter, they snuck it into law through a "gut and go" procedure.

15 hours ago, smac97 said:

Oddly, the Kansas legislature has apparently attempt to enact a statute setting the level of constitutional analysis is set by statute:

I haven't looked into this, and I have no experience with Kansas jurisprudence, but it seems almost axiomatic that under basic separation-of-powers principles, the judiciary, not the legislature, determines what standard of review the state constitution requires and whether a particular law satisfies it. A statute can supply definitions, substantive rules, and legislative findings, but it cannot dictate to the courts the applicable constitutional test or compel a finding that the test is met.

I totally agree. The Kansas legislature hates the Kansas Supreme Court and is always trying to do things like this to undermine it.

15 hours ago, smac97 said:

That said, I think you "it's all political" approach to jurisprudential thought is not a reliable thing.  Moreover, because the statute on its face differentiates based on sex, it necessarily requires strict scrutiny.  There are three standards:

• (1) the rational basis standard, which requires only that the enactment bear some rational relationship to a legitimate state interest;
• (2) the heightened or intermediate scrutiny standard, which requires the enactment to substantially further an important state interest; and
• (3) the strict scrutiny standard, which requires the enactment serve some compelling state interest and be narrowly tailored to further that interest. The determination of which of the three standards applies depends on the nature of the right at stake.

The second on applies. 

That is your opinion. I asked the same question to ChatGPT and it said:

My best prediction: strict scrutiny, under the Kansas Constitution. Hodes holds that infringements of the fundamental right of personal autonomy protected by §1 receive strict scrutiny. SB 244 directly dictates which intimate spaces individuals may use based on sex at birth and imposes penalties.

If the Court treated it only as sex discrimination, intermediate scrutiny would be the conventional test. But given Hodes, I think the stronger Kansas constitutional analysis is personal autonomy → strict scrutiny. The State’s privacy interest is substantial, but the law’s categorical means-ends fit looks vulnerable.

Note that "Hodes" is an abortion case. I didn't do anything to prompt GPT to relate this to abortion. GPT saw the same connection I did.

When this goes to trial, the ACLU will show a huge number of real people who are harmed in specific ways because of this law, not the least of which State Representative Abi Boatman, who will explain how the law interferes with her ability to fulfill her responsibilities as a state representative. From the TL/DR article you didn't read, "One time there was a call of the House, a parliamentary procedure used to create a quorum. Boatman didn’t hear the call because she was on a different floor, awaiting her turn in the bathroom. Later, a fellow legislator called her out for having been absent. “I was using the only bathroom this Legislature has said I can use,” she said."

In contrast, whoever is defending this law is going to have a hard time explaining why it furthers an important state interest.

 

 

Edited 5 hours ago by Analytics

[smac97]

1 hour ago, Analytics said:

No, about the contents of the Kansas State Constitution and the sensibilities of our State Supreme Court. 

The law didn't come about because a coalition of police officers, district attorneys, psychologists etc. explained that this law was necessary in order to better protect the vulnerable people of our society. It came about because the religious right watches Fox News and related hate-filled "news" sources and decided this was something to be angry about. Rather than having a full open debate on the issue that involved experts weighing in on the implications of the matter, they snuck it into law through a "gut and go" procedure.

I totally agree. The Kansas legislature hates the Kansas Supreme Court and is always trying to do things like this to undermine it.

That is your opinion. I asked the same question to ChatGPT and it said:

My best prediction: strict scrutiny, under the Kansas Constitution. Hodes holds that infringements of the fundamental right of personal autonomy protected by §1 receive strict scrutiny. SB 244 directly dictates which intimate spaces individuals may use based on sex at birth and imposes penalties.

If the Court treated it only as sex discrimination, intermediate scrutiny would be the conventional test. But given Hodes, I think the stronger Kansas constitutional analysis is personal autonomy → strict scrutiny. The State’s privacy interest is substantial, but the law’s categorical means-ends fit looks vulnerable.

Note that "Hodes" is an abortion case. I didn't do anything to prompt GPT to relate this to abortion. GPT saw the same connection I did.

When this goes to trial, the ACLU will show a huge number of real people who are harmed in specific ways because of this law, not the least of which State Representative Abi Boatman, who will explain how the law interferes with her ability to fulfill her responsibilities as a state representative. From the TL/DR article you didn't read, "One time there was a call of the House, a parliamentary procedure used to create a quorum. Boatman didn’t hear the call because she was on a different floor, awaiting her turn in the bathroom. Later, a fellow legislator called her out for having been absent. “I was using the only bathroom this Legislature has said I can use,” she said."

In contrast, whoever is defending this law is going to have a hard time explaining why it furthers an important state interest.

Hmm.  You went from "intermediate" to "strict" scrutiny in less than a day.  

I asked Grok: "How do you think the Hodes decision in Kansas may apply to a challenge to the Kansas law regarding sex-segregated bathrooms?"

The response:

Quote

Hodes supplies the challengers’ strongest doctrinal hook, but it does not cleanly or automatically invalidate the bathroom law.

What Hodes actually held

In Hodes & Nauser v. Schmidt (2019) and its follow-on decisions, the Kansas Supreme Court held that Section 1 of the Kansas Bill of Rights protects an inalienable natural right of personal autonomy. That right includes bodily integrity and self-determination. The Court ruled that the decision whether to continue a pregnancy is integral to this autonomy right and is therefore fundamental, triggering strict scrutiny.

Key features of the decision:

• It is grounded in the text and history of the Kansas Constitution, not the U.S. Constitution.
• The Court described personal autonomy broadly (control over one’s body, self-determination, decisions about family and health).
• Once a plaintiff shows an actual infringement of the protected autonomy interest, the burden shifts to the State to prove a compelling interest and narrow tailoring.

How challengers will try to use Hodes

In the bathroom/ID litigation (Doe v. Kansas), plaintiffs argue roughly as follows:

1. Gender identity and the ability to live and present in accordance with that identity are core aspects of personal autonomy and self-determination.
2. Forcing a person to use restrooms that correspond to biological sex (and invalidating identity documents) constitutes government compulsion that undermines bodily integrity, dignity, and self-definition.
3. Because these interests fall within the autonomy right recognized in Hodes, strict scrutiny applies.
4. The State cannot meet strict scrutiny: privacy and safety interests, while real, can be served by less restrictive means (single-occupancy facilities, etc.), and the law is overbroad.

They will also lean on Hodes’ willingness to recognize unenumerated natural rights and to apply rigorous scrutiny to government intrusions into intimate personal decisions.

Why Hodes does not automatically control

There are significant distinctions the State (and ultimately the Court) can draw:

• Subject matter: Hodes involved the uniquely intimate decision of whether to continue a pregnancy — a decision the Court described as having “profound and unique attributes” tied to bodily integrity and family formation. Using a multi-occupancy public restroom is a different kind of interest.
• Nature of the regulation: Abortion restrictions directly control what a person may do with her own body. Sex-separated facilities regulate access to shared, intimate public spaces where the privacy and safety interests of other people are also at stake. Courts have long treated sex-separated bathrooms, locker rooms, and similar facilities as constitutionally permissible.
• Level of scrutiny is not automatic: Even under Hodes, the plaintiff must first prove that the specific interest is part of the fundamental autonomy right and that the law actually infringes it. The Kansas Supreme Court has not yet held that gender identity or restroom access is a fundamental autonomy interest.
• Competing autonomy/privacy interests: The State can argue that biological-sex separations protect the personal autonomy and bodily privacy of the majority of users. Hodes does not require the Court to ignore those countervailing interests.

Likely judicial path

• Trial court / intermediate appellate stages will be cautious. The Douglas County judge already declined emergency relief, signaling reluctance to extend Hodes quickly.
• At the Kansas Supreme Court, the question will be how far the justices are prepared to push the autonomy principle beyond the abortion context. The Court has a majority that has been protective of Hodes, so an expansion is possible, but not inevitable.
• Realistic outcomes include:
  • Applying strict scrutiny and striking or narrowing parts of the law (especially the most aggressive enforcement and ID-invalidation features);
  • Recognizing an autonomy interest but finding that sex-separated facilities survive even heightened review because of privacy/safety;
  • Declining to extend Hodes this far and applying intermediate or rational-basis review instead.

Bottom line: Hodes gives challengers a powerful, Kansas-specific doctrinal foundation to demand strict scrutiny and to frame restroom access as an autonomy issue. It does not, however, dictate the result. The Court will have to decide whether gender-identity claims and public-facility access are sufficiently analogous to the pregnancy decision to receive the same rigorous protection. That is an open and contested question; Hodes makes the challenge stronger than a pure federal equal-protection claim would be, but it leaves substantial room for the State to defend sex-segregated bathrooms.

I will be interested to see how far the Kansas Supreme Court is willing to go regarding the constitutional right to "personal autonomy."  There must be some constraints on this principle.

Thanks,

-Smac

[MustardSeed]

4 hours ago, bluebell said:

Are there laws in your state

No.  In my state is protective of lgbtq

[Analytics]

1 hour ago, smac97 said:

Hmm.  You went from "intermediate" to "strict" scrutiny in less than a day.  

I asked Grok: "How do you think the Hodes decision in Kansas may apply to a challenge to the Kansas law regarding sex-segregated bathrooms?"

The response:

I will be interested to see how far the Kansas Supreme Court is willing to go regarding the constitutional right to "personal autonomy."  There must be some constraints on this principle.

Thanks,

-Smac

There are two issues in this same legislation: the legal definition of one’s sex, and sex-segregated bathrooms.

The way I see it, there are perhaps 20,000 transgender adults in the state of Kansas, the vast majority of whom act like, dress like, and look like their chosen gender. To me, the idea of personal autonomy extends to your gender expression, and part of that gender expression is the sex that appears on the ID you are required to present every time you interact with law enforcement, want to vote, buy alcohol, enter a club, or cash a check. If you are transgender, the state doesn’t have the right to out you whenever you do these things. Because of that, I think the plaintiffs will have a strong case on having their official sex on government ID match their chosen gender.

I have no problem with the state saying only “women" can use the women’s restroom. But I do have a problem with the state insisting that for purposes of mandating which bathroom must be used, this is a woman:

 

[Calm]

1 hour ago, MustardSeed said:

No.  In my state is protective of lgbtq

I am assuming clothing and wig are just the usual vibe, nothing exotic about them.

First I would ask their preference, talk about likely occurrences as well.  

I don’t see if they use the men’s restroom they are being as safe or feeling as safe as they should be even if it’s only looks they get and not snide remarks or even verbal abuse in your building.  But maybe the vibe in your building is more open.

 If they are there for therapy, it’s hardly helpful they have to worry about possible harassment at a time it’s better they are opening up.  At the very least they are risking getting filmed.  This needs to be protected against if possible.  So choice of restroom should be their choice with adjustments to avoid potential confrontations.  

Is there someone in the office able to go with them to the restroom, safety in numbers kind of thing?  Whichever one they choose?  

For me as a woman using the facilities, the dynamic is very much changed if I know a woman is with them.  That reads to me this is a sincere person doing what they need to do, not a risk, just life as usual for them…or even if there is a risk, I don’t need to worry about it, stepping in to help or reassure because there is someone else there and at most I can follow their lead (trying to imagine various scenarios, the most likely bad one being another woman being upset and making harsh comments or taking pictures imo, I would want to step in to try and defuse the situation, but it would make me very anxious as it’s an unpredictable situation for me, I am not sure if my help would be wanted to begin with and that anxiety could easily be misread as rejection, which would be unfortunate).

The companion can stay outside the restroom if there is no one else is using it if your client would prefer.  Could even let anyone entering what’s going on…”my friend, who is transgender, is using the facility for a few minutes; feel free to go in if you are comfortable, but they thought you should have a choice rather than be surprised’ perhaps?  Depends on how common this kind of thing is, if unexpected or not.

If there is no one available to go in with them, maybe discuss options of approach and see what could work for both of you in order to find something they are comfortable with, but also lowers the possibility of confrontation as that can be detrimental for them as well.  And of course, ensure they know clothes need to be fully back in place before leaving the stall.  No exposure allowed.  

Since it’s a restroom and not a locker room, there should be no exposure, so it’s primarily a safety issue, imo.  Unless there is additional mental health signals or aggressive moves, a dress signals nonaggressive to me.  But best if another woman with them.  Who is going to attempt an assault with a witness there? (There are predators who function in teams, but rare and if the vibe is “acquaintances” and not best buddies, probability is so low.)

.  Locker room, if they aren’t okay with dressing more male for the activity and using the men’s locker room until they more fully transition if they are going to do so (jeans and tshirt is female attire as well), I would push them to use only a woman’s locker room if possible with individual curtain or otherwise closed off stalls or change in the restroom or even a shower if it’s dry enough.

On a practical point, I hope they sit down to avoid overspray for the next person.  When using a woman’s restroom, use it like a woman would and leave it clean, please.  

[Analytics]

22 hours ago, webbles said:

I think it would be pretty easy to determine sexual assault, but the others you mentioned (voyeurism, spying, exhibitionism).  How would we prosecute them?  I've been in locker rooms where if the same behavior was done outside of a locker room, it would be considered exhibitionism.  Or how do we say that someone is spying.  Say a person in a locker says that another is spying, then what?  We don't have cameras in locker rooms.  And if the person being accused is a trans person, wouldn't they see it as an attack on them and rightfully defend themselves?  That's where I come from.  Sex segregated places made it a bit easier to determine if someone was being nefarious.  A person could accuse another person and if the accused happened to be the wrong gender, then it was a simple case.  But that's no longer the situation.  Now, it seems like we have to have actual assault before any prosecution can happen.

In a locker room situation, it is definitely a blurry line. 

As something that is obviously over the line, a few months ago at the Kansas City Airport, somebody saw the corner of a phone peeking around the bottom of a bathroom stall. They reported it to airport security, and were able to track down the perp, who was a worker at an airport vender. He was charged with felony invasion of privacy.

For behavior that is closer to the line, what's the person doing? If somebody goes into the locker room, changes, works out, takes a shower, changes and goes home, give him the benefit of the doubt. If he is hanging out in the locker room more than he needs to, that gets suspicious. Creepy behavior is creepy regardless of their sex or gender. I would suggest that if you are worried about a homosexual glancing at your naked body in the locker room and getting a kick out of it, you have a choice: either get over it or don't use that locker room any more and change at home. Ditto someone who is transgender. 

[Calm]

29 minutes ago, Analytics said:

would suggest that if you are worried about a homosexual glancing at your naked body in the locker room and getting a kick out of it, you have a choice: either get over it or don't use that locker room any more and change at home. Ditto someone who is transgender. 

Just to be clear as I am assuming you are specifically speaking to webbles here, maybe in general men, while this may be how men view the situation, with women there is also “will they assault me?” often in the thought process.  Which is not something to “get over” in my view given it is a real possibility and occurrence for too many.  You can ignore looks, ignoring assaults isn’t healthy.

Edited 30 minutes ago by Calm

[smac97]

41 minutes ago, Analytics said:

There are two issues in this same legislation: the legal definition of one’s sex, and sex-segregated bathrooms.

I think the former (legally defining "sex") is within the province of the legislature.  So is the latter, subject to constitutional scrutiny.

41 minutes ago, Analytics said:

The way I see it, there are perhaps 20,000 transgender adults in the state of Kansas, the vast majority of whom act like, dress like, and look like their chosen gender.

And yet the statute addresses biological sex, not "chosen gender."

41 minutes ago, Analytics said:

To me, the idea of personal autonomy extends to your gender expression, and part of that gender expression is the sex that appears on the ID you are required to present every time you interact with law enforcement, want to vote, buy alcohol, enter a club, or cash a check.

Aye, there's the rub.  

I agree that personal autonomy is a serious constitutional principle, and Hodes gives it real weight in Kansas. The question is not whether autonomy exists, but where its limits are when it collides with other interests the state may legitimately protect.

A driver’s license or birth certificate is not intended as an expression of private identity. It is a government document that records biological sex for a range of public purposes—law enforcement, medical emergencies, vital statistics, and access to sex-separated spaces. Requiring those documents to reflect biological sex does not “out” someone in the sense of forcing private disclosure; it declines to make the state itself rewrite an official record to match an individual's subjective "gender identity."

I think the same limiting principle applies to sex-segregated bathrooms and similar facilities. These spaces exist because biological sex creates material differences in privacy, safety, and vulnerability. The segregation is based on biological sex, not "gender identity."  The state’s decision to maintain them on the basis of sex is not an attempt to control anyone’s internal sense of self or private gender expression. It is a regulation of shared, intimate public spaces where the autonomy and bodily privacy interests of other people are also at stake.

If personal autonomy means the state must alter official sex designations on request and must grant access to opposite-sex facilities on the basis of self-identification, it becomes difficult to identify a coherent stopping point or limiting principles.  After all, the same logic could be advanced for other recorded facts (date of birth, height, weight, eye color, age) or for access to any sex-separated space whenever someone experiences distress at the mismatch. Courts have generally not treated those other categories as subject to unilateral redefinition.  And the more emphatic the "special pleading" becomes (to treat sex as malleable, but not the other objective markers noted here), the more problematic the constitutional challenge becomes.  After all, if "personal autonomy" can mean a state-recognized "right" for a man to "identify" as a woman, what is the legal distinction between that and him wanting to "identify" as 6'2 tall (when he is not that height), or 185 pounds (when he is not that weight) or 28 years old (when he is not that age), etc.?  

The stronger reading of the autonomy right recognized in Hodes—even giving it full weight—is that it protects individuals from compelled medical procedures, forced pregnancy, or direct control over their own bodies and private decisions. It does not require the state to abandon biological sex as a classifying principle in official records or in the design of intimate public facilities. That distinction seems to me a necessary constraint if the principle is to remain workable.  Otherwise, "personal autonomy" becomes a blank check for the Kansas Supreme Court to fabricate and dole out newly-minted constitutional "rights" like some sort of black-robed Pez dispenser.

I acknowledge that the Kansas Supreme Court may ultimately draw the line differently.  What you call "the sensibilities of our State Supreme Court" may make it appear to be one of the more progressive / left-leaning state supreme courts in the country.  6 of the 7 justices were appointed by Democratic governors.  So your preferences may well play out.  Whether that would amount to judicial activism/overreach is yet to be seen.  But again, even "progressive / left-leaning" may eventually realize that "personal autonomy" as to have some constraints and parameters.

In any event, the existence of a genuine autonomy interest does not automatically convert every identity claim into a right to rewrite government documents or to redefine the boundaries of sex-separated spaces.

41 minutes ago, Analytics said:

If you are transgender, the state doesn’t have the right to out you whenever you do these things.

I think this needs to be demonstrated rather than asserted.

I also think you will have a pretty hard time demonstrating it.

The State does not have authority to regulate the contents of its official documents, such as driver's licenses, etc.?  Could you elaborate on how that works?

Same goes for passing sex-based laws.  Constitutional scrutiny will always apply, but that likely cuts against your preferred outcome, since I think the State can present all sorts of important state interests for regulating sex-segregated spaces, as it has in the past many times.

41 minutes ago, Analytics said:

Because of that, I think the plaintiffs will have a strong case on having their official sex on government ID match their chosen gender.

A private citizen can compel the State of Kansas to change objective data on driver's license in favor of subjective, because-I-say-so preferences?  Could you elaborate on how you get there?  

Also, could you elaborate on why the State can require designation of objective data points like a person's DOB, but not biological sex?

41 minutes ago, Analytics said:

I have no problem with the state saying only “women" can use the women’s restroom.

But you do have a problem if "women" = adult human female.  Am I correct on that point?

I am reminded of this little thing about Abe Lincoln:

Quote

There is a famous riddle about the difference between a supposition and a fact:

How many legs does a dog have if you call the tail a leg?
Four. Calling a tail a leg doesn’t make it a leg.

There are different versions of this puzzler, and each is based on a different type of animal, e.g., a sheep, a calf, a horse, or a pig. But the template for the question and answer remains the same. Abraham Lincoln has usually been given credit for this instructive brainteaser.

Similarly:

Q. What is a man who is unequivocally biologically male, but subjectively "identifies" as a woman?

A. He's a man.  A claim by a man to "identify" as a women does not make him one.

41 minutes ago, Analytics said:

But I do have a problem with the state insisting that for purposes of mandating which bathroom must be used, this is a woman:

You’re drawing a distinction I think is worth taking seriously: you accept that the state may maintain sex-separated bathrooms limited to "women," but you object to the state deciding that men who "identify" as women remain men for that purpose.

That distinction actually points in the opposite direction from the ID argument.

If the state is allowed to maintain women’s bathrooms as women’s bathrooms, then it necessarily needs a workable, non-circular definition of who qualifies.  This is where the foundational premise of your position - that "a woman is anyone who 'identifies' as a woman" - bumps into cold, hard reality.  The longstanding, administrable definition has been biological sex. Once the state is required to treat self-identified gender as controlling for official purposes, the sex-separated bathroom rule becomes difficult to enforce in any coherent way. The same person the state must record as female on a driver’s license is then the person the state must treat as female for bathroom access. The two issues are linked.

On the “outing” concern: a sex designation on a government ID is not primarily a speech or privacy act directed at the public. It is an official record used for identification, law enforcement, medical emergencies, and access rules that still turn on sex. Declining to change that record is not the state “outing” someone; it is the state declining to alter a material fact it has traditionally recorded. People remain free to present themselves however they wish in daily life. The state is simply not obligated to make its own documents the vehicle for that presentation.

You say you have no problem with “only women can use the women’s restroom.” The live question is, and has been for years, what the word “women” means when the state draws that line. If it means adult human females, the bathroom policy is coherent and the ID policy follows. If it means anyone who identifies as a woman, then the bathroom policy you say you accept becomes largely unenforceable. That is the tension I don’t think the autonomy argument resolves.

I appreciate your input.

Thanks,

-Smac