How Far Does the Kansas Constitution Go in Protecting Bodily Autonomy and Dignity? 

Kansas courts are hearing two cases that will determine whether the state constitution’s protections of bodily autonomy and dignity extend to transgender people. The state’s recent history regarding reproductive rights will play a major role in the cases. 

In August 2022, Kansas voters became the first in the country to express support for abortion rights following the U.S. Supreme Court ruling that June overturning Roe v. Wade. Kansans voted “no” on a proposed state constitutional amendment that would have curtailed their abortion rights and effectively overturned a 2019 Kansas Supreme Court decision finding the state constitution’s protection of natural, inalienable rights include the right to reproductive freedom. That decision, Hodes & Nauser v. Schmidt, means the Kansas Constitution is more protective than the U.S. Constitution when it comes to reproductive rights, at least under current U.S. Supreme Court interpretation.

The extent to which Hodes extends beyond reproductive rights remains an open question — and one that is back in the spotlight in a pair of cases working their way through Kansas state courts.

Both cases consider Hodes’s effect on other fundamental choices about one’s life, specifically for transgender Kansans. One challenges a law that prohibits gender-affirming care for minors. The other seeks to block legislation that prohibits transgender Kansans from using state-issued identification documents that reflect their gender identity rather than the sex assigned at their birth. The law also criminalizes transgender people who use a multi-occupancy public bathroom that does not correspond to their sex assigned at birth.

The precise legal issues in each case and their timeline for resolution are slightly different, but they each present an opportunity for Kansas courts to consider the extent to which state constitutional protections differ from their federal counterparts. Both cases were filed in Douglas County District Court, where the University of Kansas is located. And the plaintiffs in each advocate for the court to find Hodes’s language regarding bodily autonomy, privacy, and intimate, personal choices to apply more broadly than to just reproductive rights.

The ultimate rulings in these cases will have profound consequences for both transgender Kansans and state constitutional interpretation writ large.

The Right to Privacy and Autonomy in Medical Care

After the U.S Supreme Court ruled in United States v. Skirmetti that a Tennessee law banning gender-affirming care did not violate the federal Constitution, transgender individuals in other states with similar bans turned to state constitutions. State constitutional cases since Skirmetti have produced mixed results. A North Dakota court, in T.D. v. Wrigley, upheld the state’s ban on gender-affirming care for minors, finding it did not run afoul of the North Dakota Constitution. The Montana Supreme Court, on the other hand, struck down a similar ban in Cross v. State. There, the court found the law violated the Montana Constitution’s express right to privacy.

Loe v. Kansas will add to this canon by considering another such ban, this time under the Kansas Constitution.

Filed last May on behalf of two transgender youth and their parents, Loe asks the court to enjoin Senate Bill 63, a Kansas law passed in 2025 that, among other things, prohibits doctors from proscribing puberty blockers and hormone therapy for transgender youth. The plaintiffs argue that without these medications they will experience severe emotional and physical distress and that the law unlawfully discriminates against them based on their transgender identity and status. Because the law does not prohibit the prescription of hormone therapy for other therapeutic purposes, the plaintiffs argue, it singles out transgender youth for differential treatment, in violation of the state equal protection clause. The parents of the transgender plaintiffs have their own claim: The law restricts whether and how they as parents can make personal choices about the medical care their children will receive, in violation of their state constitutional rights.

The plaintiffs have essentially asked the court to find that the law implicates the same rights at issue in Hodes — that the right “allows Kansans to make their own decisions regarding their bodies, their health, their family formation, and their family life.”

Whichever way the court rules on the plaintiffs’ still-pending preliminary injunction motion, the decision will likely address several issues not yet decided by Kansas courts. These include whether transgender status triggers heightened scrutiny under the Kansas Constitution and how bans on transgender care for minors implicate parents’ fundamental rights — two issues not decided under the federal Constitution in Skirmetti. The judge, Carl Folsom, will also need to consider the extent to which the Kansas courts should break their traditional equal protection lockstepping approach. Perhaps most importantly, Folsom’s decision might provide the first opportunity to evaluate whether the Kansas Supreme Court’s holding in Hodes has any application for medical decisions that are distinct from the right to receive an abortion.

The Right to Privacy and Autonomy in Drivers’ Licenses and Bathroom Use

The second major transgender rights case currently working its way through Kansas state courts is Doe v. Kansas. There, the plaintiffs challenge Senate Bill 244, a bill that passed through the Kansas legislature this session at lightning speed.

Some of the legal claims made by the plaintiffs in this case are related to the irregular process by which it became law. Initially, the bill was intended to fill a gap in prior legislation — the so-called “Women’s Bill of Rights,” enacted in 2023. That bill defined men and women based on sex assigned at birth and purported to extend those definitions to all applications throughout the Kansas code. The attorney general took the position that the bill required the Kansas Department of Revenue — the state executive branch agency in charge of issuing drivers’ licenses — to only display sex assigned at birth on all state-issued licenses.

The department disagreed. Based on its interpretation of the law, the department said it would continue reclassifying the listed sex on the front of licenses to match gender expression. This led to an intra-branch court battle, wherein the attorney general filed a mandamus action against the department, asking the court to adopt his preferred interpretation. A lower court agreed with the attorney general, but the Kansas Court of Appeals reversed and remanded for further proceedings. The Kansas Supreme Court declined to take the case, leaving the attorney general to go back to the legislature and ask for a statutory fix.

Enter Senate Bill 244. This bill, as originally drafted, provided the statutory language that the appellate court found lacking in the Women’s Bill of Rights: It explicitly required the department to only issue drivers’ licenses that reflected sex assigned at birth. After passing out of committee, though, the legislature turned to a problematic practice called “gut and go,” which allows lawmakers to insert controversial provisions into unrelated bills in order to rush them through without significant public debate. It took the drivers’ license-related language that was heard in committee and combined it with a ban on using restrooms in public buildings that do not align with one’s sex assigned at birth. It also added a private bounty-hunter enforcement scheme, similar to Texas’s abortion ban. Then it shoved all of this into an empty bill shell that had already passed one chamber and sent it immediately to a floor vote — robbing Kansans of the opportunity to weigh in. After passing both houses and overriding a gubernatorial veto, the bill took effect on February 26, 2026.

Two days later, the American Civil Liberties Union filed the Doe lawsuit, challenging the license and bathroom bill on several independent but overlapping state constitutional grounds. The plaintiffs are two transgender adults who were labeled as female at birth, but who have lived their adult lives as men. They work in or attend school in public buildings. Under the various provisions of the law, they are required to surrender their Kansas drivers’ licenses and birth certificates stating that they are male in exchange for ones that identify them as female and use only female restrooms in the public buildings where they lead their daily lives.

The plaintiffs argue that these restrictions essentially compel them to display their transgender status every time they go to the restroom or use their state-issued ID — including at liquor stores, when renting cars, to vote, to check into hotel rooms, and more. Such forced “outing,” according to plaintiffs, implicates their state constitutional rights to procedural due process, personal autonomy, informational privacy, equality, and free expression. The penalty component of the bathroom provisions also open transgender Kansans to fines and criminal liability for using bathrooms that correspond with their gender identity and outward gender presentation, making it especially dangerous for those who would feel unsafe using legally compliant restrooms.

The plaintiffs filed a motion for a temporary restraining order alongside their petition, presenting the court with an opportunity to preliminarily block the law while the litigation of plaintiffs’ claims plays out. The district court denied plaintiffs’ request, letting the law go into effect during the litigation.

The district court’s order is only six pages and should not be viewed as fatalistic to plaintiffs’ claims. As evident during the argument on plaintiff’s motion and in his written order, Judge James McCabria was weighing complicated constitutional arguments against a necessarily limited evidentiary record, and knew he had to issue his opinion quickly. But he noted during the arguments that he had not yet been able to digest the briefs or research the legal issues, and he seemed hesitant to side with one party or the other. The court’s initial opinion, then, could be read as one of cautious deliberation: McCabria may be buying himself time to more fully understand the claims and the facts.

Importantly, the court did not state that the law does not implicate any constitutional rights, although he expressed some skepticism given how federal courts have interpreted similar federal rights. Perhaps of greater concern to the plaintiffs, however, McCabria seemed inclined to agree with the attorney general’s argument that Hodes was inherently limited to abortion rights. Although his opinion denying the plaintiffs’ motion merely notes he needs more specific cases and more time to study them, the implication may be that he does not want to tread new ground — especially on an expedited schedule.

One issue that McCabria will ultimately have to decide is what level of scrutiny to apply to a law that appears to single out transgender Kansans for different treatment. This is not unlike the issue currently pending before the judge in the Loe case. And, regardless of the level of scrutiny applied, the court will be forced to grapple with what government interest, if any, the bill advances.

The case also presents questions beyond the scope of the rights to privacy and bodily autonomy. Plaintiffs argue that the law violates the state constitution’s so-called single-subject rule, which prohibits legislation that combines two or more unrelated subjects into a single bill. And the court’s order did not mention the law’s private enforcement mechanism, under which anyone who uses a multi-occupancy restroom that does not align with their sex assigned at birth is susceptible to a civil lawsuit by any “aggrieved” person. The contours and constitutionality of this private enforcement mechanism will undoubtedly be discussed in future proceedings.

Perhaps the judge will be more convinced after the law has been in effect for some time and the plaintiffs come forward with more concrete examples of harm they have suffered as a result. McCabria has scheduled an evidentiary hearing on the plaintiffs’ preliminary injunction motion for September. In the meantime, the two Doe plaintiffs — and all transgender Kansans — are required to comply.

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The ultimate resolution of the complex constitutional issues in these cases are months if not years away, despite the high stakes involved and the impact these bills are having and will have on the lives of transgender Kansans.

Both Doe and Loe will likely end up before the Kansas Supreme Court. That court will ultimately decide the extent to which the Kansas Constitution protects transgender Kansans and whether the privacy and autonomy rights that carried the day in Hodes mean anything for intimate, private choices beyond reproductive rights.

The weight of these decisions should also be viewed in light of the upcoming August primary elections, in which Kansans will vote on a constitutional amendment that, if passed, would convert the current merit supreme court selection process to one of partisan judicial elections. The stakes of that vote are part of the broader political environment surrounding the Doe and Loe litigation — and the ultimate resolution of the legal issues in play in these two important, ever-evolving cases.

Sharon Brett is an associate professor at the University of Kansas School of Law.

Suggested Citation: Sharon Brett, How Far Does the Kansas Constitution Go in Protecting Bodily Autonomy and Dignity?, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Mar. 23, 2026), https://statecourtreport.org/our-work/analysis-opinion/how-far-does-kansas-constitution-go-protecting-bodily-autonomy-and