TOPEKA — Transgender activist Samantha Boucher tried her best to get arrested Tuesday for using the second floor women’s bathroom in the Kansas Statehouse in defiance of a new state law that criminalizes bathroom use based on gender assigned at birth.
Capitol Police declined.
Boucher’s plans for civil disobedience turned into a statement about the confusion surrounding Senate Bill 244 and how it is to be enforced.
As she told Gov. Laura Kelly in a chance encounter in the rotunda, where the governor had just finished a news conference: “The way it is worded is quite difficult for enforcement, but we’re about to put that to the test.”
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She thanked the governor for her veto of the legislation.
“I am very sorry that you and others have been put in this situation,” Kelly said.
Boucher shouted as she walked away from the governor: “And now, we will see if the attorney general chooses to enforce the law.”
Danedri Herbert, spokeswoman for Kansas Attorney General Kris Kobach, didn’t answer a phone call or respond to a text message seeking comment for this story.
Boucher is the founder and executive director of Trans Liberty, a national nonprofit that issued an evacuation order for the state after the bill became law. The group set up Operation Lifeboat to provide cash assistance for trans residents and help them flee.
She said she chose to come to Kansas for Trans Day of Visibility because “no single bill in American history has ever been as aggressive toward the trans community as SB 244.” In addition to restricting bathroom use, the bill retroactively invalidated the driver’s licenses of anyone who had changed their gender marker.
Boucher said the organization plans to help 2,000 Kansas families leave the state.
“We’re in this for the long haul,” Boucher said. “We’re going to make sure everybody who was affected by this, especially having their licenses taken away from them, is accounted for, and if they want to leave the state, we’ll help them do that. If they choose to stay, then we’ll do our best to help them do that more safely.”
A small group of trans people and their allies joined Boucher at the Statehouse. Only Boucher defied the law.
Connor Montgomery, of Manhattan, said it was important for trans people to be visible “because we are a very small minority of people who have injustices against us constantly, like with these new laws forcing trans women into men’s bathrooms, which is incredibly dangerous, and putting men like me in women’s restrooms.”
“I don’t think it’s a very kind thing for the lawmakers to go around us when making these types of decisions,” Montgomery added. “I feel like if they met some of us personally, that they might change their minds about how this affects us.”
The law says an individual may receive a warning on first violation for unlawful use of a bathroom in a government building, followed by a $1,000 fine for a second violation and a Class B misdemeanor for a third violation. Those violations would be triggered by a complaint and investigation. Governmental entities are required to investigate complaints about bathroom use or face a $125,000 fine.
Additionally, an individual who feels “aggrieved” by a trans person’s bathroom use can pursue a private right of action for $1,000, a provision of the law that critics describe as a “bounty.”
“It’s one thing to to fear your government,” Boucher said. “It’s another thing to fear your neighbors. That is a clear and bold attempt to make trans people feel unsafe in the community at large, not just in a public building.”
Boucher talked to Capitol Police, a division of the Kansas Highway Patrol, as soon as she entered the building and let them know that she planned an unlawful use of a bathroom. Police informed her they weren’t responsible for enforcing the civil offenses described in the law, but that they would notify the Kansas Department of Administration, which has oversight of the building.
At her request, Kansas Highway Patrol Lt. Grady Walker followed her to the bathroom, filmed her going in and out three times — she said she peed during her first trip — and interrogated her in private afterward. Walker told reporters he was treating it as a criminal investigation.
“We will not be able to discuss or disclose any information about this investigation until it’s concluded, but she is free to leave at this time,” Walker said.
Boucher praised Walker for his professionalism.
Samir Arif, a spokesman for the Kansas Department of Administration, said the agency as of 4 p.m. had not received any complaints regarding bathroom usage at the Statehouse. He declined to answer follow-up questions about how the law is enforced, including who would have standing to make a complaint and whether there was a deadline for doing so.
Kansas Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: info@kansasreflector.com. Follow Kansas Reflector on Facebook and Twitter.
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Trans Liberty leader defies Kansas law by using Statehouse bathroom, without complaint or arrest
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