Updated on December 21, 2019
Reintroducing LGBT Rights in Kansas
Emily is a 3L at the University of Kansas School of Law. Emily received her Bachelor of Arts in Tourism and Hospitality Management from Fort Hays State University. Professionally, Emily is interested in public interest work and employment law. Outside of law school, Emily enjoys traveling and going to trivia night with friends.
In January 2019, Governor Laura Kelly signed Executive Order No. 19-02 (the “Order”),1 prohibiting state employers and contractors from discriminating against gay, lesbian, bisexual and transgender employees.2 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first introduced an executive order protecting LGBT employment rights in 2007.3 However, in 2015, Sam Brownback repealed the Sebelius Order, stating that it created a new protected class—which could only be done by the Legislature.4 Regardless, Kelly reinstated those protections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.5
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.6 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.”7 Currently, seven cities in Kansas have ordinances that prohibit sexual orientation and gender identity (SOGI) discrimination in city government and private employment.8 Several of Kansas’s largest corporations and all of its public universities have policies prohibiting SOGI discrimination in the workplace.9 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.10 Some circuit courts have also interpreted LGBT discrimination as a form of sex discrimination.11
Shortly after Kelly signed the Order, various legislators proposed bills that would include SOGI as protected classes.12 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.
- 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.
- Kan. Exec. Order No. 19-02 (Jan. 15, 2019), https://governor.kansas.gov/wp-content/uploads/2019/01/EO201902.pdf.
- Shorman, supra note 1.
- 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.
- See Table 4.5, Gubernatorial Executive Orders: Authorization, Provisions, Procedures, The Book of the States 2017, The Council of State Governments.
- Kan. Stat. Ann. § 44-1001 (WEST 2019).
- 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/.
- 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.
- 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).
- See, e.g., Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339 (7th Cir. 2017) (en banc).
- 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.