Reintroducing LGBT Rights in Kansas

In January 2019, Governor Laura Kelly signed Executive Order No. 19-02 (the “Order”),[efn_note]Jonathan Shorman, Kelly Reinstates Protections for LGBT State Workers in Kansas Eliminated by Brownback, The Wichita Eagle (Jan. 15, 2019, 10:40 AM), https://www.kansas.com/news/politics-government/article224559230.html.[/efn_note] prohibiting state employers and contractors from discriminating against gay, lesbian, bisexual and transgender employees.[efn_note]Kan. Exec. Order No. 19-02 (Jan. 15, 2019), https://governor.kansas.gov/wp-content/uploads/2019/01/EO201902.pdf.[/efn_note] While many may applaud the Order as a step toward LGBT equality, some argue it is an overstep of the governor’s authority.

Kathleen Sebelius first introduced an executive order protecting LGBT employment rights in 2007.[efn_note]Shorman, supra note 1.[/efn_note] However, in 2015, Sam Brownback repealed the  Sebelius Order, stating that it created a new protected class—which could only be done by the Legislature.[efn_note]Id.[/efn_note]  Regardless, Kelly reinstated those protections in the Order on her second day in office, making Kansas the fourth state within two weeks to sign an executive order protecting LGBT employment rights.[efn_note]Alan Greenblatt, LGBT State Workers Gain Rights in Red and Purple States, Governing (Jan. 24, 2019, 3:27 PM), https://www.governing.com/topics/workforce/gov-governor-states-lgbt-rights-protections-discrimination.html.[/efn_note]

Governor Kelly’s Order is not beyond the scope of her gubernatorial power.  Kansas governors have the authority to create executive orders addressing state personnel administration, including discrimination within state agencies.[efn_note]See Table 4.5, Gubernatorial Executive Orders: Authorization, Provisions, Procedures, The Book of the States 2017, The Council of State Governments.[/efn_note] Further, the Order does not create a new class, but merely defines Kansas’s existing discrimination policies and practices.  The Kansas Act Against Discrimination prohibits employment discrimination “by reason of race, religion, color, sex, disability, national origin or ancestry.”[efn_note]Kan. Stat. Ann. § 44-1001 (WEST 2019).[/efn_note]  Currently, seven cities in Kansas have ordinances that prohibit sexual orientation and gender identity (SOGI) discrimination in city government and private employment.[efn_note]Kyle Palmer, Prairie Village and Mission Just Approved LGBT Protections. What Cities Are Next?, KCUR (Dec. 24, 2018), https://www.kcur.org/post/prairie-village-and-mission-just-approved-lgbtq-protections-what-cities-are-next#stream/.[/efn_note]  Several of Kansas’s largest corporations and all of its public universities have policies prohibiting SOGI discrimination in the workplace.[efn_note]Christy Mallory & Brad Sears, The Williams Inst., Discrimination Against LGBT People in Kansas 3 (2019), https://williamsinstitute.law.ucla.edu/wp-content/uploads/Kansas-ND-Report-January-2019.pdf.[/efn_note]  The Order mirrors Kansas’s growing trend towards LGBT protections.

Further, Title VII may already include SOGI as a protected class.  The Equal Employment Opportunity Commission already considers SOGI to be sex discrimination protected under Title VII.[efn_note]What You Should Know About EEOC and the Enforcement Protections for LGBT Workers, Equal Emp. Opportunity Commission, https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm (last visited Aug. 12, 2019).[/efn_note]  Some circuit courts have also interpreted LGBT discrimination as a form of sex discrimination.[efn_note]See, e.g., Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339 (7th Cir. 2017) (en banc).[/efn_note]

Shortly after Kelly signed the Order, various legislators proposed bills that would include SOGI as protected classes.[efn_note]Jonathan Shorman, Dozens of Kansas Lawmakers Seek to Ban Discrimination Against LGBT Individuals, The Wichita Eagle (Feb. 4, 2019, 11:04 AM), https://www.kansas.com/news/politics-government/article225495620.html.[/efn_note]  These bill proposals may indicate that the Order is not seen as an abuse of executive power, but rather an exercise of Governor Kelly’s duty to faithfully execute Kansas laws and public policy.