A few spaces are exempt from Kansas’ new bathroom law that requires people to use the facilities in government buildings that match their sex assigned at birth, Attorney General Kris Kobach said in an opinion he released Wednesday.

Kobach’s opinion, which carries no legal authority, exempted some government spaces — such as skilled nursing rooms at the Kansas Office of Veterans’ Services — from complying with the bathroom law that went into effect in February.

He issued the opinion in response to an April letter from Justin Whitten, Gov. Laura Kelly’s chief counsel, who asked for clarification on defining “multiple-occupancy private spaces” and “facilities” as written in Senate Bill 244.

“This was a poorly written and ambiguous law, which is why the governor’s office sought an attorney general opinion,” said Olivia Taylor-Puckett, spokeswoman for Kelly. “The AG’s opinion provides new clarity on the more limited scope of SB 244 as inapplicable to places that are more ‘residential in character’ like a cabin or hospital room.”

The bill became law in February after passing through contentious legislative debate, including a veto from Kelly that was overturned. At the time, Kelly questioned vague language in the bill and how it would apply to some state facilities.

The law sets high fines for agencies that fail to comply and smaller fines escalating to class B misdemeanors for those who violate the law. Critics said the law doesn’t specifically address implementation, leaving agencies statewide struggling to determine what to do to comply.

In an April letter, Whitten asked Kobach to render an opinion on whether spaces like hospital rooms, prison cells and bedrooms in public buildings are considered “multiple-occupancy private spaces” under the law.

The letter asked for definition of “facilities,” and whether Kansas Department of Wildlife and Parks cabins throughout the state and Kansas Office of Veterans’ Services nursing facility rooms must adhere to the law.

“SB 244 makes no distinction based on a ‘facility’s’ purpose and instead focuses on the existence of a mere possibility of whether an individual may be in a state of undress in front of another individual,” Whitten’s letter said.

Arguments that the hospital is the “facility” rather than the patient room are “untenable,” he said. The hospital building would fit under the law’s definition of a public building, while the room would be the private space, Whitten said.

“If your answer relies on finding an ambiguity in Senate Bill 244 with the term ‘facilities,’ we ask that you work with the Legislature in the 2027 session to clarify this ambiguity,” he said.

Kobach’s opinion

Citing a dictionary definition of “facility” and saying that “in the absence of a contrary definition, words in a statute should be given their ‘ordinary, contemporary, common meaning,’ ” Kobach said neither the skilled nursing rooms or the Kansas Department of Wildlife and Parks rental cabins meet the definition of “facility,” which exempts them from the law.

Kobach said SB 244 listed examples of rooms the bill applies to.

“The debate surrounding SB 244 focused on the types of rooms listed in the statute — restrooms, locker rooms, changing rooms, and shower rooms — and the risks to safety and privacy when individuals of one biological sex use facilities designated for individuals of the opposite biological sex,” his opinion said.

Kobach said the Legislature’s intent didn’t include stopping a married couple from sharing a nursing home or assisted living facility room or to prevent people in those facilities from receiving guests of the opposite sex.

Prison cells, however, more closely match the type of facilities addressed in the law, Kobach said, which means multiple-occupancy cells must only be shared by prisoners of the same sex.

Taylor-Puckett said attorney general opinions are generally given “persuasive but not binding weight in a courtroom.” She recommended that individuals and entities should consult with their attorney with regard to any decisions about complying with SB 244.

‘Poorly drafted’

Harper Seldin, senior staff attorney for the American Civil Liberties Union, said he was glad to see some spaces exempted from the law but that the opinion reinforced what civil rights activists contended from the beginning: The vagueness of the law makes it difficult to enforce and understand.

“This uncertainty about whether people just living their lives are going to run afoul of this law, I think demonstrates both that the law was meant to terrorize and also that it’s poorly drafted,” he said.

Some Kansans and legislators objected to SB 244 being termed an “anti-trans” bill. But Seldin said the interpretation reinforces that it is a bill targeted at transgender and intersex people.

“These interpretations really continue to try to find ways to push transgender and intersex people out of public life, while making sure that people who aren’t transgender don’t feel any disruption whatsoever,” he said. “It does seem to very strongly suggest that this law was really targeted at transgender people and is not actually responsive to any concerns about safety or privacy.”

Seldin said any concerns about safety and privacy aren’t related to reality in Kansas.

Seldin is representing two Lawrence transgender men who are challenging the bathroom law in court, with the next hearing scheduled for Sept. 29 through Oct. 2. That will be an evidentiary hearing regarding the ACLU’s request for a temporary injunction of the law, Seldin said.

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Story via Kansas Reflector