By a margin of two votes, the Nebraska Unicameral failed to advance what is likely one of the last pieces of widely controversial legislation for the 2024 session on Friday afternoon.
The ‘Sports and Spaces Act,’ LB 575, narrowly advanced Thursday out of the Legislature’s Education Committee on a 5-3 vote. The bill would have compelled public, private, and parochial schools to define and separate school bathrooms and sport teams based on sex at birth, either male or female according to their chromosome composition (XX or XY). In effect, the bill would disallow youth who identify as transgender from participating in sport teams/utilizing bathrooms for their identified gender.
Lawmakers pounded through 18 bills before arriving at LB 575, at which time presiding officer Lt. Gov. Joe Kelly reminded those observing the legislature that he had discretion to clear the gallery if there were any outbursts, as there were last year when debate over a bill relating to transgender healthcare resulted in several arrests.
“Physical differences between biological males and biological females have long made separate and sex specific sports teams important, so biological female athletes can have equal opportunities to compete in sports,” said the bills introducer Senator Kathleen Kauth of Omaha, who also piloted last year’s controversial ‘Let Them Grow Act‘ prohibiting “gender affirming” care for Nebraskans under the age of 19.
Kauth touted various physical differences between girls and boys, often referencing skeletal muscle mass, cardiovascular endurance, anaerobic output, testosterone production, etc.
“On average, biological male athletes are bigger, faster, stronger, and more physically powerful than their biological female counter parts,” Kauth said.
Sen. Megan Hunt of Omaha, who’s child identifies as transgender, filed to indefinitely postpone the bill upon its introduction.
“The point of LB 575 is discrimination. The discrimination and the hate and the bigotry is the whole point,” said Hunt. “It’s about the danger and the power of the imagination of a bigot, Senator Kathleen Kauth and those would support a bill like this.”
Sen. Loren Lippincott of Central City interrupted Hunt, calling a point of order on the decorum of her reference to Kauth as a “bigot,” saying “I don’t believe its appropriate for her to call another member within our group names.”
“Members, as a reminder, please keep your comments directed towards the bill,” reiterated Lt. Gov. Kelly.
“If you’d like to censure me, please go ahead,” responded Hunt.
Lincoln Senator Danielle Conrad — an attorney, member of the Education committee, and former Executive Director of the ACLU of Nebraska — expressed legal concerns about the bill. As did fellow Lincoln Sen. George Dungan, also an attorney.
“Any kind of law that discriminates based on sex has to be subject to ‘intermediate scrutiny,'” said Dungan. “What that means is, in order to be upheld, that law has to be found to be related to a substantial governmental interest… we’ve heard people say the important governmental interest were doing here is were ‘protecting sports’ or ‘protecting privacy.’ But that is wrong. What LB 575 seeks to do is ban transgender youth from participating in sports.”
Dungan explains, an Education Committee amendment attached to LB 575 spells out that any school athletic team “designated for females, women, or girls shall not be open to a biological female student who is taking cross-sex hormones and competing as a transgender.”
Kauth disputed the claim that the bill would lack legal standing, saying she’s been affirmed by an advisory opinion issued by Nebraska Attorney General Mike Hilgers.
Hilgers cited, prior to the committee amendment which referenced “transgender” youth, that LB 575 did not reference gender identity, so the bill “cannot be said to single out transgender students.”
Further, Hilgers opined, if references to chromosome composition do single out trans students, a rational-basis test would rule this issue to be of “substantial government interest.”
Sen. Merv Riepe said this issue has already been accommodated by the 2016 addition of the Nebraska Sports Activities Association (NSAA) gender participation policy, adding that multiple school super intendents he’s spoken with have dealt approached these instances on a case-by-case basis.
“This is local, until a tough decision such as library books or ‘sports and spaces’ is up for leadership,” said Riepe, urging the State Board of Education to take up the issue, if it were a concern — not state lawmakers.
Omaha Senator Terrell McKinney, a Creighton law student and wrestling coach, said the bill was “oppression in the form of protection,” drawing a comparison to the killing of Palestinians civilians in the Gaza Strip by Israeli military operations — perhaps the first mention of the conflict between Israel-Palestine on the floor of the legislature.
Beyond legal, some non-attorney Senators had financial concerns about the bill.
Sen. Tom Brandt of Plymouth, speaking for the first time on this issue, asked how testing for a student’s chromosome profile — something schools do not request — would be paid for. Brandt also questioned the prevalence of this issue.
“Where has this ever happened in Nebraska schools?” Brandt asked. “This bill is incomplete and needs to be reworked… my understanding there have been less than 10 transgender kids apply to participate in sports,” citing numbers from the NSAA.
“This is an issue that we need to stand up and say ‘Woah.’ Its common sense. Its been like this for generations, that there are spaces segregated by sex. We need to maintain that,” said Kauth, in one final appeal to her collogues before motioning to end debate.
The vote came down 31-15, two votes short of the 33 required to end debate. Senators Riepe and Brandt were both “present not voting.”
Speaker John Arch of La Vista said lawmakers are in “crunch time” with only four working days left in the session, and the clerk would not be allowing other bills to be combined any more this session. With this, the bill is effectively dead for the year.