SESSION OF 2023
SUPPLEMENTAL NOTE ON HOUSE BILL NO. 2238
As Recommended by House Committee on
Education

Brief*
HB 2238 would create the Fairness in Women’s Sports
Act (Act) and require interscholastic, intercollegiate,
intramural, or club athletic teams or sports that are sponsored
by public educational entities or any school or private
postsecondary educational institution whose students or
teams compete against a public educational entity to be
expressly designated based on biological sex.

Definitions
The bill would establish definitions for six terms,
including:
● “Biological sex” to mean 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 or chosen, or subjective experience
of gender;
● “Public educational entity” to mean any public
school or postsecondary educational institution;
○ The bill would define a “public school” as any
elementary or secondary school maintained
and operated by a school district; and
____________________
*Supplemental notes are prepared by the Legislative Research
Department and do not express legislative intent. The supplemental
note and fiscal note for this bill may be accessed on the Internet at
http://www.kslegislature.org
 ● “School” to mean any nonpublic school offering any
of the grades kindergarten through 12.
Athletic Team Criteria
The bill would require all interscholastic, intercollegiate,
intramural, and club athletic teams that are sponsored by
public educational entities or any school or private
postsecondary institutions whose students compete against
teams from other public educational institutions to be
expressly designated as one of the following, based on the
biological sex of the team members:
● Males, men, or boys;
● Females, women, or girls; or
● Coed or mixed.
The bill would further specify that athletic teams or
sports designated for females, women, or girls shall not be
open to students of the male sex.
[Note: The bill would not exclude students of the female
sex from participating on athletic teams designated for males,
men, or boys.]

Rules and Regulations
The bill would require the Kansas State High School
Activities Association (KSHSAA), the Kansas Board of
Regents, and the governing bodies for municipal universities,
community colleges, and technical colleges to adopt rules
and regulations for the implementation of the designations of
their athletic teams.


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Prohibition of Complaints
The bill would prohibit governmental entities, licensing
organizations, accrediting organizations, or athletic
associations or organizations from taking the following
actions against public educational entities that maintain
separate teams for students of the female sex:
● Entertaining a complaint;
● Opening an investigation; or
● Taking other adverse actions.
Resolving Violations
In the event of a violation of the Act, the bill would allow
the following individuals and organizations to file civil suit and
seek relief in the form of monetary damages, reasonable
attorney fees, and other appropriate relief:
● Any student deprived of an athletic opportunity or
who suffers direct or indirect harm by a violation of
the Act;
● Any student subjected to retaliation or other
adverse action by a public educational entity or
athletic association or organization for reporting a
violation of the Act; or
● Any public educational entity that suffers direct or
indirect harm as a result of a violation of the Act.
The bill would require all civil actions to be initiated no
later than two years after the harm occurred.


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Severability
The bill would declare all sections of the Act to be
severable in the event one or more sections are determined
to be invalid.

Background
The bill was introduced by the House Committee on
Education at the request of Representative Wasinger.
[Note: The bill contains provisions nearly identical to
those included in the conference committee report for 2022
SB 160, which was vetoed by the Governor. The bill adds a
definition section.]

House Committee on Education
In the House Committee hearing, proponent testimony
was provided by representatives of the Alliance Defending
Freedom, Kansas Catholic Conference, and Kansas Family
Voice and by private citizens. The proponents generally
indicated the bill is necessary to ensure biological females
can fairly participate in athletics due to the distinct
physiological advantages held by biological males over
biological females.
Written-only proponent testimony was provided by a
representative of the Independent Women’s Forum. One
proponent, a parent, suggested an amendment regarding
public school travel protections based upon a student’s
biological sex.
Opponent testimony was provided by Representatives
Meyer and Woodard. Opponent testimony was also provided
by representatives of the American Civil Liberties Union-
Kansas, Equality Kansas, Kansas Interfaith Action, and
MainStream Coalition, and by private citizens. Opponents

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generally indicated the bill would harm transgender children
by excluding them from participating in athletic activities
under the gender they identify as. The conferees also noted
there are no examples of transgender athletes in Kansas
excelling in athletic competition due to the physiological
advantages related to sex.
Written-only opponent testimony was provided by
Representative Susan Ruiz and representatives of the
Greater Kansas City Chamber of Commerce, Kansas Action
for Children, Kansas Association of School Boards, Kansas
Chapter of American Academy of Pediatrics, Kansas National
Education Association, Kansas PTA, Kansas Suicide
Prevention HQ, and State Board of Education, and by private
citizens.

Fiscal Information
According to the fiscal note prepared by the Division of
the Budget, the Kansas State Department of Education
indicates the bill would have no fiscal financial effect on the
Department or local school districts.
The Office of the Attorney General (OAG) indicates the
bill would likely be challenged on constitutional grounds and
would need to go through the appellate process to get a
definitive ruling on the validity of the law. The OAG indicates
costs to defend such lawsuits could be absorbed within
existing resources, but further notes local school boards and
community colleges could be affected by enactment of the
bill, as those entities would be subject to increased legal
liability.
The Kansas Board of Regents (Board) indicates
enactment of the bill would require the Board and the
governing boards of Washburn University, community
colleges, and technical colleges to adopt rules and
regulations related to implementation of the Act. The Board
indicates the duties associated with adopting rules and
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regulations and the administration of the Act could be
absorbed within existing resources. The Board also indicated
a concern regarding any conflict that may occur with policies
of the National Collegiate Athletic Association (NCAA) and a
potential impact on the state’s ability to host NCAA events.
The Office of Judicial Administration also indicates the
bill could result in additional civil cases being filed, which
could increase revenues and expenditures from additional
time spent by judges and court staff in hearing and
processing these cases. However, a fiscal effect on the
Judicial Branch cannot be estimated.
Any fiscal effect associated with the bill is not reflected
in The FY 2024 Governor’s Budget Report.
Education; Fairness in Women’s Sports Act; defined terms; nonpublic schools;
postsecondary educational institutions; public educational entities; transgender; sex


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