Bill to define male and female for bathroom access considered

A new attempt to limit access to public school bathrooms and locker rooms was considered by the Government, Military and Veterans Affairs Committee Jan. 28.

LB730, introduced by Omaha Sen. Kathleen Kauth, would require state agencies, public schools and public postsecondary educational institutions to designate restrooms and locker rooms based on sex as defined in the bill and prohibit use by the opposite sex.

A male is defined in the bill as a person who, but for a congenital anomaly or intentional or unintentional disruption, has a reproductive system that utilizes sperm for reproduction. A female is defined as having a reproductive system that utilizes eggs for fertilization.

The proposal contains exceptions for custodial, maintenance and inspection personnel, as well as parents or caregivers of minor children and individuals rendering emergency assistance.

It also would allow coaches, athletic trainers and authorized school personnel of the opposite sex to enter restrooms and locker rooms, provided the individual “takes reasonable steps” to ensure that no one inside is in a state of undress.

LB730 tasks the governing bodies of schools with enforcement of the bill’s provisions, but is silent on the manner of enforcement or penalties for violations. The bill does, however, prohibit retaliation for “good-faith” reporting of violations.

Finally, the bill would require all state agencies to define an individual’s sex as either male or female for purposes of rules and regulations, enforcement of administrative actions and adjudication of disputes.

Kauth said the bill essentially is the portion of her LB89 from last session that was amended out of that proposal during floor debate in order to secure its passage. She called this year’s version a “commonsense measure” that would establish a right to privacy in “intimate spaces” for both sexes.

“What this committee needs to determine is, does the law still recognize biological sex as a meaningful and legitimate category, or can it be erased in favor of subjective identity claims?” Kauth said. “Belief does not trump biology. It is impossible to change your sex. Access to female bathrooms and locker rooms must be restricted to females.”

Elizabeth Nunnally of the Nebraska Family Alliance echoed those sentiments in her support of LB730. Calling the measure “grounded in biological reality,” she said it is unfair and dangerous to force women and girls to share bathrooms and locker rooms with males.

“Our laws and policies should recognize and respect that males and females are biologically different,” Nunnally said. “Respecting these biological differences is essential to ensuring the privacy, dignity and safety of both sexes.”

Justin Jacobsen of Lincoln also testified in favor of the bill, saying his daughter felt uncomfortable when a student who identified as transgender used the girl’s restroom with her at school.

“I can’t tell you the shock, awe and anger that I felt having been told this,” Jacobsen said.

Instead of making girls uncomfortable while trying to accommodate students who are “struggling with this mental delusion,” he said, schools should be protecting children like his daughter.

Michelle Jud, speaking on behalf of Rainbow Parents of Nebraska, testified in opposition, calling LB730 an “egregious waste of time” and a “discriminatory, harmful and unnecessary” proposal.

“Ultimately, this is not about protecting children and women, as they like to say,” Jud said. “It is about erasing trans people from existence. It is about eradicating something that they don’t understand and therefore something that they fear.”

Ashleigh Clarke, a licensed clinical psychologist testifying on behalf of the Nebraska Psychological Association, also opposed the bill. She said the measure would place schools, universities and state agencies in enforcement roles for which they are not equipped.

“In practice, these requirements cannot be reliably implemented,” Clarke said. “Institutions lack any appropriate or standardized mechanism to determine compliance, resulting in inconsistent, complaint-driven enforcement that increases stigma and conflict without evidence of increased safety benefit.”

Speaking on behalf of the Omaha Public Schools Board of Education, board president Jane Erdenberger testified in opposition as well. She said local communities can best identify how to support their students, rather than a one-size-fits-all approach mandated by the state.

Christon MacTaggart, executive director of the Nebraska Coaltion to End Domestic and Sexual Violence, questioned assertions that the bill would protect women.

The coalition provided shelter for 1,800 survivors of sexual violence last year, she said, and there were no reported incidents involving a trans person victimizing another survivor. In fact, she said, research indicates that trans individuals are more likely to be victims of sexual violence than perpetrators.

“This is not sexual violence prevention,” MacTaggart said.

The committee took no immediate action on LB730.