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

A measure that would define male and female in state law was narrowed to apply only to access to interscholastic sports before being advanced to the final round of consideration May 14.

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.

The measure, known as the Stand with Women Act, was amended during the first round of debate to alter those definitions and 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.

Lawmakers narrowed the measure on general file to 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.

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.

Kauth said the bill represents “commonsense adherence to biology” and is needed to ensure that women and girls are not unfairly disadvantaged by competing against transgender athletes for medals and records.

“Eighty percent of the entire country believes that we should not have males participating in female athletics, and they should stay out of their locker rooms and bathrooms,” she said. “The fact that we have to legislate this still astounds me.”

Ralston Sen. Merv Riepe offered an amendment during select file debate, adopted 34-8, that would further narrow the proposal by removing all provisions in the bill related to bathroom and locker room designations and signage based on the measure’s definitions of male and female.

The amendment also would remove provisions in the bill as amended on general file requiring all state agencies 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.

Finally, the amendment would remove any reference to intramural sports.

Riepe said his proposal would focus the bill on fairness in athletic competition. Local school districts already are handling bathroom and locker room access on a case-by-case basis, he said, and “micromanaging” those decisions is not necessary.

“They don’t need a one-size-fits-all [mandate] from Lincoln,” Riepe said. “These are deeply personal and often sensitive situations and they deserve better than to be turned into a political litmus test.”

Kauth said she would have preferred to keep the provisions relating to bathrooms and locker rooms in the bill, but that a compromise was necessary for the measure to move forward.

“I respect his decision and we’ve made that modification,” Kauth said, “And I think a lot of times on this floor, we find out that sometimes making incremental steps is the best way to go.”

David City Sen. Jared Storm supported the proposal, calling it a matter of safety. He said his daughters have expressed fear of having to compete against “biological boys,” who he said would have unfair physical advantages even if they were undergoing hormone replacement therapy.

“God created men and women equal in dignity, but different,” Storm said.

Sen. Mike Jacobson of North Platte also spoke in favor, calling LB89 “the minimum that our citizenry would expect from us” to ensure a level playing field in sports.

“If we took a vote across the state, overwhelmingly, Nebraskans believe that that’s the right thing to do,” Jacobson said.

Lincoln Sen. George Dungan opposed the measure. He cautioned fellow lawmakers that while discrimination may not be the intent of the proposal, it would be the impact.

This bill would “completely upend” the lives of families of trans students who wish to participate in youth sports but are not out at school, he said, without a compelling state interest for doing so. Ensuring that a particular athlete holds a school record or wins a medal is not reason enough to “ostracize” trans youth, he said.

“Women’s sports are thriving in the state of Nebraska and LB89 does nothing to protect the entirety of women’s sports,” Dungan said.

Sen. Megan Hunt of Omaha also opposed the bill. She said the push for such legislation is coming from lawmakers, not students.

“Most kids want fairness [and] inclusion,” Hunt said. “They want the freedom to play with their friends without being political. It’s adults in this room and in legislatures around the country who are forcing division in spaces where it never existed before.”

After two hours of debate, Kauth offered a motion to invoke cloture, which ceases debate and forces a vote on the bill. The motion succeeded on a vote of 33-14 and lawmakers advanced LB89 to final reading 33-15.