Apr 05, 2024

Proposal advances to restrict Nebraska school bathrooms, sports teams based on sex at birth

Posted Apr 05, 2024 2:00 PM
State Sen. Kathleen Kauth of Omaha introduces a bill Feb. 13, 2023, in Lincoln, before the Education Committee that would define school group bathrooms and sporting teams as either male or female. (Zach Wendling/Nebraska Examiner)
State Sen. Kathleen Kauth of Omaha introduces a bill Feb. 13, 2023, in Lincoln, before the Education Committee that would define school group bathrooms and sporting teams as either male or female. (Zach Wendling/Nebraska Examiner)

Zach Wendling

Nebraska Examiner

LINCOLN — A legislative committee narrowly advanced a measure Thursday that would define Nebraska K-12 school bathrooms and sporting teams as male or female based on sex at birth.

Education Committee members voted 5-3 to advance Legislative Bill 575, the Sports and Spaces Act, proposed by State Sen. Kathleen Kauth of Omaha. Public, private and parochial schools would need to adopt a policy to implement LB 575 if passed, including classifying group bathrooms and locker rooms as male or female and sports teams as male, female or mixed.

An amendment, also adopted 5-3, removes legal relief for students who may be “deprived of an athletic opportunity” or otherwise harmed if a public school knowingly violated the act. 

The change also adds a second prohibition for girls sports to include: “a biological female student who is taking cross-sex hormones and competing as a transgender male.” 

Athletic teams or sports designated for males would not be open to female students unless there is no female team equivalent.

Kauth said after the vote she was “very pleased.” She said she is “presuming” debate will be Friday.

“I believe I have the votes and what happens happens, and if it doesn’t work, then I bring it back next year,” Kauth said.

One vote remains a ‘mystery’

State Sen. Dave Murman of Glenvil, Education Committee chair, said LB 575 had been stuck in committee for two years, and “we don’t want to be held hostage by a fraction, probably a small fraction, of the Legislature.”

Murman said taking a vote on the bill was overdue after Kauth and State Sen. Rob Clements of Elmwood prioritized it two years in a row. 

State Sen. Merv Riepe of Ralston has targeted the State Board of Education for not acting on issues such as LB 575. 

Although he signed onto the bill when it was introduced, Riepe removed his name last May. At the time, he revealed a memo he wrote to Kauth and other senators regarding LB 575, suggesting that it be amended so the State Board of Education would be required to address the issue, not the Legislature.

“The greatest victory is that which requires no battle,” Riepe wrote, quoting Sun Tzu, a Chinese general. 

Riepe declined again Thursday to say how he would vote on LB 575, other than to say it would be a “mystery” until the last second.

Other senators who expressed hesitation with the bill last year declined Thursday to say how they would vote on LB 575. Debate on the measure could be scheduled as early as Friday and could last a maximum of four hours before seeking “cloture,” a procedural vote to end debate, which requires 33 votes.

An internal vote count this week run by Sumner State Sen. Teresa Ibach on Kauth’s behalf sat at 32 votes, with one senator “leaning” toward voting for cloture. Kauth confirmed the count.

‘Put politics aside’

State Sen. Danielle Conrad of Lincoln, an Education Committee member who led opposition to LB 575, including a failed vote to kill the bill (5-3 against doing so), said it has been known that the bill could shape up to be one of the most divisive of the session, similar to its sister bill, LB 574, in 2023. 

LB 574 contained a more restrictive limit on abortions and restricted transgender health care for minors.

Conrad said LB 575 doesn’t solve issues that are most important to schools, ranging from needed resources and teacher shortages to a desire to increase parental engagement.

“I’m asking you to put politics aside,” she told her fellow committee members, noting it could throw gasoline on the 2024 session.

State Sens. Lynne Walz of Fremont and Justin Wayne of Omaha also opposed LB 575.

Conrad asked her colleagues why discrimination was more important than tax relief or other issues. State Sen. Fred Meyer of St. Paul said it was an unfair question because the issue was simple in his district about differences between boys and girls.

Multiple superintendents in his district, he said, have asked the Legislature to step in so they don’t have to. He declined to give names to Conrad after the executive session.

Aryn Huck, community organizer for OutNebraska, a leading statewide LGBTQ organization, said that OutNebraska wants all children to thrive and succeed at school and that trans youths shouldn’t be excluded from opportunities that could build confidence, self-respect and teamwork.

“By excluding kids from sports, or not allowing them to continue using the school facilities they’ve been using, LB 575 sends the message that not everyone is welcome,” Huck said. “Singling out kids who want to belong will only harm them in the long term.”

NSAA’s Gender Participation Policy

Multiple times during the executive session, Conrad pointed to the Nebraska School Activities Association, which governs school activities and athletics in many public and private schools statewide and already has a Gender Participation Policy.

Since being implemented in 2016, fewer than 10 students have utilized the policy, which allows a path for trans students to play on a sporting team that matches their gender identity. An associated committee must unanimously approve the student’s application, which includes affirmation of the student’s gender identity.

For trans girls, the process also includes a medical examination and physiological testing to affirm the student has taken at least one year of cross-sex hormones and doesn’t “possess physical … or physiological advantages over genetic females of the same age group.”

Conrad said it is a “very expensive, arduous process” that hasn’t had issues. 

Meyer said in his experience, the NSAA is flimsy and may not hold firm in policy. Murman said he has heard second-hand concerns with the policy, though he hadn’t “personally verified it.”

Gov. Jim Pillen, who has supported LB 575 and designated it a priority in his State of the State address, said the bill is “just common sense” and matches Nebraska values.

Bellevue senator listening for concerns

Bellevue Public Schools has a policy to address transgender students, allowing students to use the restrooms for the gender they identify with. Sarah Centineo, a Bellevue school board trustee, testified against LB 575 last year.

Centineo testified “with absolute certainty” that Bellevue’s policy, which has been in place since 2015, has not been a problem. She added that her husband is a bowling coach and personally expressed concern that he would be required to question whether a girl should be allowed to bowl with other girls and how he could be required to “prove” that she’s a girl.

“That destroys trust between a coach and between a student,” Centineo testified.

State Sen. Rita Sanders of Bellevue, former mayor of the city, said that after numerous phone calls and emails related to LB 575, it’s time to make a decision — “up or down, we move on.”

Centineo and Sanders disagreed about whether Centineo was speaking on behalf of Bellevue Public Schools when she testified last year. Centineo is running against Sanders this election cycle. 

Sanders said she confirmed with the district that Centineo was not representing the district when testifying. 

Centineo told the Examiner she was representing the district and provided an email she sent from her district email to the committee one week after testifying that Sanders responded to.

Bellevue Public Schools did not immediately return a request for comment.

Sanders said she will be listening for any concerns to be “brought to light” during LB 575 debate and emphasized that senators need to remember they are talking about children.

“I think with any bill you have to look for the concerns, the areas of concerns, that I think are addressed during good debate,” Sanders added.

Enforcing the policy

When it comes to enforcing LB 575, Sanders said lawmakers need to have a discussion, such as around chromosomes, and said lawmakers or lobbyists could suggest amendments.

“We either come out with a better bill, or it goes away,” Sanders said.

Murman told the Examiner that he’s unsure how schools would track students’ chromosomes or enforce the bill.

“That’s something I never thought about,” Murman said, noting schools would need to decide.

Kauth said a birth certificate or a doctor’s attestation, such as through students’ annual sports physicals, could satisfy her bill’s requirements. She also pushed back on “fear mongering” from some opponents to her bill that schools would implement “genital inspections.”

“Come on,” she said. “I am very concerned by anyone who’s promoting that.”

Opposition strategy forming

Thursday’s committee action represents one of the last possible moments for members to advance LB 575 to the full Legislature. Murman declined to say whether Speaker Arch — who sets the floor debate agenda — asked the committee to delay consideration until Thursday.

“Every bill that comes to the floor is a negotiation between the speaker and the bill sponsor, or the committee sponsor, and that includes this bill,” Murman said. 

Murman has supported LB 575 since its introduction. When  asked why LB 575 didn’t advance or come up for a vote sooner, he noted that 2023 demonstrated how a “very small minority” can control what happens in the Legislature and “can, in their own words, ‘burn down the session.’”

“We don’t want that to happen, and I assume it won’t happen because we’ve been very giving in waiting and so forth,” he said.

State Sen. Machaela Cavanaugh of Omaha, who fought Kauth’s LB 574 last year, often bringing debate to a crawl as she extended debate on  every bill to its maximum time limit, committed to stall debate in the Legislature’s final days because of the Education Committee’s vote.

“Get ready to hear my recipes, my movie synopsis and on and on,” Cavanaugh said Thursday afternoon. “Until 575 is dead, that’s what we’re going to be doing.”

She added that while LB 574 was a “travesty” and harmed transgender children, LB 575 “makes it impossible for transgender children to exist in this state.”

Cavanaugh later said she would focus opposition on LB 575, not on other bills.

Attorney general’s opinion

Kauth, Murman and other LB 575 supporters deny any discrimination — and did so during the Education Committee executive session. They argue the bill is about protecting all school-aged children and preserving women’s sports, including Title IX.

“Protecting women’s sports and girls sports is so critically important, especially for kids at that age,” Kauth said. “… We’ve got all these amazing opportunities that will go away if girls are starting to compete with boys in their high school and middle school years.”

Nebraska Attorney General Mike Hilgers, in an opinion sought by Kauth that does not carry the same weight as a judicial opinion, argues LB 575 does not violate federal laws, such as the Equal Protection Clause of Title IX, the federal educational civil rights law. 

The attorney general is charged with defending state laws.

Hilgers noted the measure does not reference gender identity, so the plain text of the bill “cannot be said to single out transgender students.”

Now, however, with the amendment adopted by the committee, the measure does reference gender identity.