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Restrictions on restrooms and sports teams are inadequate in the Nebraska Legislature. • Nebraska Examiner

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LINCOLN — State lawmakers fell two votes short Friday of advancing a proposal that would define K-12 school bathrooms and sports teams as male or female based on students' sex at birth.

State Senator Kathleen Kauth of Omaha. April 5, 2024. (Zach Wendling/Nebraska Examiner)

Bill 575the Sports and Space Act, introduced by State Senator Kathleen Kauth of Omaha, fell 31-15, after two conservative lawmakers who originally signed the bill when it was introduced last year did not vote for the measure: state Sens. Tom Brandt of Plymouth and Merv Riepe of Ralston. That was two votes shy of the 33 votes needed to end debate on the bill.

Riepe, who had until recently said his vote would remain a “mystery,” condemned Friday's last-minute attempts on a bill that had been introduced just a day earlier, while Brandt questioned how the bill's guidelines would be enforced and would be paid for.

With Friday's failed vote, the bill is effectively dead for this year. Speaker John Arch of La Vista said that is the case not enough time to try to combine billswhich could have been a next step to give LB 575 another chance at another bill next week.

Kauth said the measure would return in 2025 and could include restrictions on college sports.

“Hard hand of the government”

Last year, Riepe was among the first to point out gaps in the legislation as he went through the procedural step remove his name from the bill. At the time, he revealed that he had made Kauth aware of his dissatisfaction with the State Board of Education for its lack of involvement in the matter.

The Ralston senator said he met several transgender students and their families and was impressed by the love and care he saw. Riepe noted that they were seeking shelter, not attention, for “the life that was given to them in this very complicated world.”

“Thank God for his creation and the strength of families and friends who love these transgender students and walk with them every day through every challenge, without the heavy hand of the government,” Riepe said Friday.

State Senator Merv Riepe of Ralston. April 5, 2024. (Zach Wendling/Nebraska Examiner)

Kauth said her bill is about protecting women's sports and protecting the dignity and privacy of all school-aged children in the most intimate places. Without her bill, she said, “women will lose out” and will be deprived of scholarships and trophies along with trophies. They would also miss out on the lessons from sport that could prepare them for their careers later in life, she said.

“Women and girls will start refusing to exercise because they know the cards are stacked against them,” Kauth said.

State Sen. Dave Murman of Glenvil, chairman of the Education Committee, said lawmakers need to recognize that there are physical differences between boys and girls, such as in the Nebraska School Activities Association's sports records.

Policy already in place

The Nebraska School Activities Association already has one Gender participation policywhich has been in force since January 2016. Less than 10 students applied and were accepted to participate on the sports team of their choice.

Riepe distributed the NSAA directive to all lawmakers on Thursday evening.

“NSAA has provided tireless oversight and guidance,” Riepe said, noting that it allows supervisors to work one-on-one with families “with fairness, safety and respect for all.”

State Senator Tom Brandt of Plymouth. December 18, 2023. (Zach Wendling/Nebraska Examiner)

State Sen. Tom Brandt of Plymouth said he hopes Friday will be the last time he has to speak on LB 575, calling Nebraska a “leader in the nation” for its NSAA policies, which is an “excellent document.” already works for the state.

State Sen. Lynne Walz of Fremont suggested the Legislature consider enacting these regulations.

Kauth and state Sen. Teresa Ibach of Sumner expressed concern about the NSAA policy because it gives member schools the ability to adopt their own policies. Two counties in Nebraska – in Kearney and Norfolk – Subsequently, policies similar to LB 575 were introduced last year.

Kauth said the policy also advocates for children to use puberty blockers and cross-sex hormones, which it wanted to ban completely last year. An amended bill, LB 574, restricted young people's access to these medications.

Riepe also argued that the State Board of Education delegated its authority to the Legislature out of fear of legal repercussions for attempting to adopt such a policy and chose to “avoid its leadership responsibilities and shift financial liability to the state.” legislature and state taxpayers.”

“Certainly not a brave profile,” he said. “We’re trying to create a problem that doesn’t exist.”

Kauth said the state board was not an option, citing a previous situation conservative efforts in library books That fell short last month. She said in 2023 that the board “didn’t have the teeth for it.”

The legislature is running out of time

Speaker Arch reiterated Friday morning that the Legislature is running out of time and there are four days left for legislation after Friday.

Riepe criticized lawmakers for wasting time on LB 575, saying local control is only important to school boards until an issue becomes “difficult,” such as: Restriction of library books or sports teams and bathrooms. Brandt and Riepe rejected this library measure last month.

State Senator Wendy DeBoer of Bennington speaks on the floor of the Legislature
State Senator Wendy DeBoer of Omaha. March 3, 2023. (Zach Wendling/Nebraska News Service)

Omaha state Sen. Wendy DeBoer said there would likely be a local board that could address these issues, rather than state lawmakers who should be spending their time on property taxes and a statewide revenue package.

“Can't we invest the time and mental work that we need to get this right into our tax packages?” DeBoer said.

State Sen. Carol Blood of Bellevue, who spent much of Friday questioning Kauth about her bill's legislative history, said women don't need the Legislature's protections.

“We are not waiting for a man on a white horse or a prince on a horse to come and save us,” Blood said, adding that women win, not lose.

A proactive law

State Sen. Brian Hardin of Gering said to his knowledge the problems identified in LB 575 are not a problem in his district in western Nebraska, “but you don't close the gate after the cattle are out.”

“You don't hit the brakes until you've hit the car in front of you, and you don't put sunscreen on after you get burned,” he said.

Riley Gaines, center, is joined from left to right by State Senators Ben Hansen, Carolyn Bosn, Kathleen Kauth, Rob Clements, Tom Brewer, Loren Lippincott and Barry DeKay. August 27, 2023. (Zach Wendling/Nebraska Examiner)

State Sen. Barry DeKay of Niobrara, who has led K-12 sports for 40 years, said he doesn't expect the State Board of Education to address the issue, saying inaction will result in a “very strange gray area.” , where different schools have different policies for sports and bathrooms.

He said this could lead to “quite a mess” and lead to a “massive state controversy”.

DeKay said to his knowledge he has never officiated a game involving a trans player.

“Put the genie back in the bottle”

State Sen. George Dungan of Lincoln also pointed to the “legally precarious grounds” on which LB 575 remains, even after a Tuesday vote Appraise from Nebraska Attorney General Mike Hilgers. The Attorney General said the bill as presented would be “constitutional.”

An Education Committee amendment introduced with LB 575 in a 5-3 vote added a new restriction that would ban transgender boys from playing sports if they are taking cross-sex hormones.

The amendment would add the word “transgender” to the bill, undermining Hilgers’ opinion that “it cannot be said to single out transgender students” because it does not mention gender identity. Kauth listened to the concerns raised in committee and on Friday offered to remove that portion.

“But this is not a good faith attempt to fix the problem,” Dungan said. “This is an attempt to put the genie back in the bottle or the toothpaste back in the tube because the intent of this bill has been made clear. The intent of this bill is to discriminate against transgender youth.”

Chromosomes and enforcement

LB 575 would define “male” and “female” based on students’ chromosomes. Several senators questioned how schools would meaningfully implement this policy.

The proposal would have left implementation up to each of Nebraska's 244 school districts.

“How do you know if you’re looking at a child?” Riepe asked. “Are they like shirt sizes? Are they an “X” and a double “X” or a triple “X” and what are they?”

State Senator Jen Day of Omaha. February 29, 2024. (Zach Wendling/Nebraska Examiner)

State Sen. Jen Day of Omaha, who said she played sports from a young age, including against men, expressed concern that no one had ever asked about her or her children's chromosomes.

“When my children were born, no one came into the delivery room and took a test to see what chromosomes they had,” Day said. “How do we know?”

Kauth told the Nebraska Examiner on Thursday that student birth certificates or a doctor's certification, such as through an annual physical exam, could meet her bill's requirements.

Riepe said Thursday evening that he had signed many birth certificates – and none contained information about chromosomes.

Brandt questioned who would pay for student chromosome testing or additional restrooms and lockers, and asked whether it would be an unfunded obligation for some of the smallest schools in his district that are “very cash-strapped.”

He also questioned how LB 575 would apply to multichromosomal or intersex children who are not transgender and may be born with multiple sex characteristics. They may not even know this part of their identity — their parents may never have told them, Brandt added.

For a father with his young daughter or a mother with her young son, Brandt asked how those parents could help their children go to the bathroom at a school function without breaking the law.

“This bill is not thoughtful enough to address this issue,” Brandt said.