Bill to define male and female for bathroom, sports access advanced after cloture vote

A measure that would limit access to school bathrooms, sports teams and locker rooms to those that align with an individual’s sex assigned at birth cleared the first round of consideration after four hours of debate April 22.

LB89, as introduced by Omaha Sen. Kathleen Kauth at the request of Gov. Jim Pillen, would restrict participation in school sports to teams that correspond to a student’s “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.

A Government, Military and Veterans Affairs amendment, adopted 33-11, would replace the bill and alter those definitions to base them on reproductive systems that would do so “but for a congenital anomaly or intentional or unintentional disruption.”

Students would be required to provide confirmation of their sex through a document signed by a doctor or under the authority of a doctor in order to participate in a sport that is designated for a single sex. Female students could participate in sports designated for males if no female-only alternative exists and coed sports still would be allowed under the amendment.

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 male and female.

Under the committee amendment, those 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.

As amended, LB89 would require public schools and public postsecondary institutions to designate restrooms as for use by females, males, single occupancy or for use by families. It would provide exceptions for a parent of caregiver of a minor child or individual with disabilities, cleaning and maintenance personnel and entrance to render emergency assistance.

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.

According to a New York Times poll, 80% of Americans support legislation such as LB89, Kauth said. She called the bill a “commonsense” proposal that would help prevent girls and women from “feeling embarrassed, feeling scared” and losing out on opportunities through participation in sports.

Many young students are uneasy about sharing “intimate spaces” with individuals of the opposite sex, she said, and segregating bathrooms and locker rooms as proposed in the committee amendment would prevent their discomfort and vulnerability.

“Ultimately, LB89 aims to strike a balance between fairness, safety and equality,” Kauth said. “It is a thoughtful and necessary measure that reaffirms the rights of women and girls in Nebraska to opportunity, privacy and safety.”

The committee amendment also would remove a provision in the original bill requiring all state agencies, boards, commissions and bureaus to designate bathrooms based on biological sex.

Under the amendment, state agencies would be required to define an individual’s sex as either male or female in the adoption and promulgation of rules and regulations, enforcement of administrative decisions and dispute adjudication.

Central City Sen. Loren Lippincott supported the measure, which he said would ensure that students compete on a level playing field with less potential for injury. LB89 “recognizes a simple scientific truth” that males and females are different, he said, and those differences lead to disparities in athletic ability.

“After puberty, testosterone surges in males, amplifying these advantages, and … male athletes can generate up to 30% more power in explosive movements like sprinting or jumping,” Lippincott said. “These are not small gaps; they’re game changers.”

Echoing those sentiments, Niobrara Sen. Barry DeKay also supported LB89. The biological advantages boys have in sports can create an unfair playing field for students, he said, and girls will be discouraged from participation if they can’t win championships or hold records.

“I’ve officiated sports for 41 years and I have not yet seen one player that wanted to play for second place,” DeKay said.

Sen. Tanya Storer of Whitman spoke in favor of the proposal, saying it was “not about hate” but about ensuring the continued progress of women in sports. Storer said she spoke with a student at LPS who quit her sports team due to discomfort at sharing a locker room with a “biological male.”

“This is a bill about protecting women,” Storer said.

Omaha Sen. Megan Hunt opposed the measure, which she called “fear-based,” and offered a series of unsuccessful motions to extend debate on LB89. She said the bill was a political distraction focused on people’s discomfort with the state’s most vulnerable individuals, not on actual dangers.

“Trans kids existing in a restroom in a fourth-grade classroom doesn’t hurt anyone,” Hunt said. “But forcing them out — singling them out, humiliating them — that does cause harm. We don’t get to legislate someone’s identity just because some people feel uneasy.”

Also opposing the measure was Sen. John Cavanaugh of Omaha, who said he’d heard from parents of transgender youth who were concerned for their safety. Some of those families are considering leaving the state, he said.

“I would ask … what is the right number of these young kids who are going to be forced out and have their lives upended?” Cavanaugh said.

Lincoln Sen. George Dungan said LB89 was unnecessary and driven by fear and not facts. Speaking against the bill, he said the proposal was based on ideas that historically have been used to separate people based on a perceived threat to the majority.

“The idea that we have to protect people from this smaller group of people, who maybe don’t have as loud of a voice … are the same arguments, I’m sure, that echoed in these halls when we talked about segregation,” Dungan said.

Sen. Merv Riepe of Ralston said he would vote to advance the bill on the understanding that lawmakers would consider narrowing the proposal during the next round of debate. He said he would offer an amendment on select file to remove intramural sports from the measure and provisions relating to state agencies, which he said “opens a can of worms.”

“I share the underlying concern … of preserving the integrity of interscholastic sports competition in Nebraska,” Riepe said. “However, I do not believe that concern justifies using state law to micromanage who may use which bathrooms or locker rooms. That level of oversight and accommodation is best left to individual schools, not dictated through state statute.”

Riepe added that he was “prepared to oppose LB89” if his amendment is not adopted.

Following four hours of discussion, Kauth offered a motion to invoke cloture, which ceases debate and forces a vote on the bill and any underlying amendments and motions.

The motion succeeded on a vote of 33-16, the minimum number required. Senators then voted 33-16 to advance LB89 to select file.