School athletics, bathroom access proposal considered

Nebraska students would be required to use school bathrooms and play on school sports teams based on their sex assigned at birth rather than their gender identity under a bill heard Feb. 13 by the Education Committee.

Sen. Kathleen Kauth
Sen. Kathleen Kauth

Under LB575, sponsored by Omaha Sen. Kathleen Kauth, school athletic teams or sports would be designated as for males, men or boys; females, women or girls; or coed or mixed.

Teams or sports designated for females, women or girls would not be open to biological male students, and those designated for males, men or boys would not be open to biological female students unless there is no female team available.

In recent years, Kauth said, there have been instances of transgender women and girls outcompeting non-transgender women and girls in athletics. She said LB575 is necessary to uphold Title IX — the 1972 civil rights law that prohibits sex-based discrimination in education programs or activities that receive federal funding — by ensuring that women and girls can compete fairly in their chosen sports.

“Biological females will lose spots on teams, playing time and the ability to compete for scholarships if we do not act,” she said.

The bill also would require Nebraska public and private schools to designate each group bathroom and locker room in school buildings as either for use by biological females or biological males, as determined by chromosomes and anatomy.

Schools could not allow a biological male to use a restroom or locker room designated for use by biological females, and biological females could not use a male-designated restroom or locker room.

Kauth said LB575 is intended to protect students’ privacy and dignity and would not prevent youth with gender dysphoria from playing school sports as long as they play on the teams and use locker rooms and bathrooms that match their biological sex.

Greg Brown, a professor of exercise science at the University of Nebraska at Kearney, testified in support of the bill on his own behalf. He said transgender women athletes have certain physical advantages — such as greater muscle mass and lung capacity — over non-transgender women athletes, even if they receive hormone therapy.

“The issue of males wanting to compete in girls’ sports is not just an abstract concern but is happening here in Nebraska,” he said. “LB575 is necessary because it seeks to maintain the level playing field for female athletes without the intrusion of male bodies.”

Also in support was Paige Steinman, a cross country runner at UNK. She said she would not feel safe sharing a locker room with transgender women athletes.

“With an already increasing dropout rate of girls participating in sports,” Steinman said, “I fear that allowing males in locker rooms would only further discourage female sports participation.”

Sarah Hanson, a mother of two high school athletes in Nebraska, also testified in support. She said it defies common sense to allow children or teens to use bathrooms or locker rooms or to participate in school-sponsored sports based on their gender identity rather than their biological sex.

“Boys competing in a girls’ race makes a mockery of the sport,” Hanson said, “and it’s an embarrassment to the basics of biology.”

Testifying in opposition to LB575 was Aaron Burbach, who said he realized he was a transgender man during his junior year at a high school in Omaha. Although he cut his hair and began to wear more masculine clothing, Burbach said, he continued to use the women’s bathroom.

One day, Burbach said, as he was leaving the bathroom, two other students chased him down the hall, yelling at him.

“What exactly is the plan for students like me?” he said. “I was doing exactly what this bill would have required me to do, and I was nearly attacked for it.”

Jay Irwin, an associate professor of sociology at the University of Nebraska Omaha, testified in opposition to the bill on his own behalf. He said LB575 is aimed at excluding already marginalized people and uses “baseless assumptions” about the inherent superiority of individuals who are assigned male at birth.

“The easiest statement is that elite athletes are elite regardless of their sex assigned at birth,” Irwin said. “Bills like these devalue the strength of assigned-female-at-birth people and assume that they are fragile and in need of ‘protection’ even as elite athletes.”

Also testifying in opposition on her own behalf was Sofia Jawed-Wessel, an associate professor of public health at UNO. She said most sports governing bodies no longer use genital anatomy and chromosomal testing alone to perform gender verification tests.

“They’ve tried it and failed because there was too much variation in anatomy and chromosomal makeup,” Jawed-Wessel said.

Ryan Salem, a Lincoln high school coach, also testified in opposition to LB575. He said the Nebraska School Activities Association, which governs Nebraska high school athletics, already has rules for transgender athlete participation that ensure fairness in competition.

Rose Esseks testified in opposition to the bill on behalf of the Nebraska Psychological Association. She said there is no evidence of any transgender student assaulting another student in a bathroom, but 70 percent of transgender youth report being verbally or physically harassed in a bathroom or being denied access to one.

Esseks said transgender children and teens are at higher risk of developing significant mental health problems than cisgender youth because they are much more likely to be bullied, assaulted and discriminated against.

“When they are not able to use the appropriate bathrooms and excluded from sports, trangender children are at even greater risk of poor outcomes than their cisgender peers,” she said.

The committee took no immediate action on LB575.

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