School athletics, bathroom access bill considered

An expanded version of a failed measure from last session that would have restricted K-12 student access to school facilities and sports teams was considered by the Government, Military and Veterans Affairs Committee Feb. 7 during a marathon hearing lasting more than 10 hours.

LB89, as introduced by Omaha Sen. Kathleen Kauth at the request of Gov. Jim Pillen, would restrict student participation in school sports to teams that correspond to their “biological sex” — defined for males as a person whose “biological reproductive system is organized around the production of sperm,” and for females as being organized around the production of ova.

An amendment brought by Kauth to the committee hearing would alter those definitions to indicate reproductive systems that would do so “but for a congenital anomaly or intentional or unintentional disruption.”

The bill as introduced also would require that all public and private schools in Nebraska, both K-12 and postsecondary, designate bathrooms and locker rooms based on the bill’s definitions of biological sex.

Under Kauth’s amendment, the bill’s provisions would apply to private schools only if the school’s students or teams compete against a public school in an interscholastic or intramural sport or the school is a member of an athletic association.

LB89 also would require all state agencies, boards, commissions and bureaus to designate bathrooms based on biological sex. It further would require such entities to define biological sex as either male or female in the adoption and promulgation of rules and regulations, enforcement of administrative decisions and dispute adjudication.

Kauth said the proposal 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.

More than 75% of Nebraskans support “sex segregation” in sports, Kauth said, and LB89 would reflect the will of the majority of the state’s residents and recent national trends.

“This is something that is needed, this is something that is wanted and, unfortunately, it is something that is often silenced,” Kauth said. “[LB89] is a crucial piece of legislation that aims to protect the integrity of athletic competitions and ensure the safety and privacy of women and girls at schools and state agencies.”

Pillen testified in favor of the proposal, calling it a reflection of “commonsense Nebraska values.” He said LB89 would build on an executive order he issued last year that establishes a person’s biological sex as defined at birth for purposes of state government.

“The highest calling of government is to keep us safe, to keep all of our citizens safe,” Pillen said.

Several student athletes also testified in favor of the proposal, including Selina Soule, who described herself as a former elite track and field athlete from Connecticut. Soule said she had to compete against two transgender athletes in high school, causing her to lose out on medals, records and college scholarships.

“No matter how hard we trained or how hard we pushed ourselves, they won time and time again,” Soule said. “I was forced to become a spectator in my own sport.”

UNL senior Hannah Holtmeier, said she was “forced to share a sorority house with an adult male,” when a transgender student joined the Kappa Kappa Gamma house where she lived.

Speaking in support of LB89, she said the measure would protect other women from similar situations, which she described as a violation of the private, safe space that a sorority house is meant to provide.

Marion Miner, testifying on behalf of the Nebraska Catholic Conference, also supported the proposal. The bill would serve several important government objectives, he said, including ensuring privacy, fairness and equality of opportunity.

Miner said several U.S. courts have found that similar proposals are consistent with the Equal Protection Clause of the U.S. Constitution and Title IX.

Dozens of opponents to the bill, including Erin Feichtinger of the Women’s Fund of Omaha, questioned its necessity and its potential impact. Testifying in opposition, Feichtinger said many policies could be enacted to protect and advance the well-being of Nebraska women and girls, none of which are included in LB89.

“If we cared about ending discrimination against women, we would address the growing gender wage gap, focus intensely on the child care crisis and implement family leave policies, just to name a few,” she said.

Jane Erdenberger, president of the Omaha Public Schools Board of Education, also opposed the bill on behalf of the OPS board. Local schools should decide how best to identify and address students’ needs, she said, and the Nebraska School Activities Association already provides guidelines on how to do so for transgender students.

Also testifying in opposition to LB89 was J. Scott Barker, bishop of the Episcopal Diocese of Nebraska, who called the bill a “culture war volley that is unnecessary, unkind and inflammatory.” Barker said he has met transgender Nebraskans across the state and seen them struggle to find acceptance within themselves and the larger community.

“Nobody chooses this for themselves or their child,” he said. “It’s a hard life [and] you’ll make it much, much harder — especially for trans youth and their parents — if you pass this bill.”

Mary Kelly of the League of Women voters opposed the bill, saying the history of restrooms in the U.S. is “mired in discrimination.” Prior to the Industrial Revolution, public restrooms were available only to men, she said, because women were not expected to be outside the home long enough to need such facilities.

In the Jim Crow era, restricting bathrooms and water fountains was a way to keep Black people out of public spaces, Kelly said.

“The impact of restricted access to restrooms is real,” she said. “Whether or not there is a bathroom available to you determines where you can go and how long you can stay at a location — it communicates whether or not you are a welcome member of society who can and should be out in public.”

Speaking on behalf of the Nebraska Psychological Association, doctoral student Gina May said transgender youth have higher rates of depression and suicide than other teens. Restrictive restroom policies have been associated with a nearly 2.5 times higher risk of sexual assault for transgender girls, she said.

“LB89 seeks to restrict bathroom access, although research shows that access to school bathrooms that match students’ gender identity protects the health of transgender youth and presents no risk to their cisgender peers,” May said.

The committee took no immediate action on the proposal.