Legislature(2021 - 2022)BUTROVICH 205
04/06/2022 09:00 AM Senate EDUCATION
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| Audio | Topic |
|---|---|
| Start | |
| SB140 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 140 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
SB 140-DESIGNATE SEX FOR SCHOOL-SPONSORED SPORTS
9:09:17 AM
CHAIR HOLLAND announced the consideration of SENATE BILL NO. 140
"An Act relating to school athletics, recreation, athletic
teams, and sports."
[SB 140 was previously heard on 3/3/2022 and 3/12/2022.]
9:09:39 AM
SENATOR HUGHES, speaking as sponsor, stated that the spirit of
SB 140 was rooted in Title IX, which prohibits discrimination
based on sex in education programs and activities that receive
federally funded assistance. She stated that SB 140 was designed
to maintain the integrity of Title IX by protecting women and
girls in school athletic programs and allowing them to compete
on an even-playing field against other women.
9:10:30 AM
SENATOR HUGHES noted that some had accused her bill of
discriminating against individuals who may choose an identity
differing from their biological sex. She stated that this is an
unfounded allegation. She emphasized that SB 140 was neutral
regarding gender identity. She said she accepts, values, and
loves everyone, but the issue was not about acceptance but one
of fair competition.
SENATOR HUGHES stated that school sports and athletic programs
center around competition, and the ability of women and girls to
compete was at risk due to male-bodied athletes being allowed to
compete on women's and girl's teams across the country over a
range of grade levels.
9:11:10 AM
SENATOR HUGHES stated that SB 140 would address this concern by
basing women or girls' team membership on the participant's
biological sex found on their birth certificates that were
issued at or near their birth. She noted that birth certificates
were required for public school enrollment in Alaska. She
clarified that this bill was not excluding anyone from
participating in school sports. She explained that every student
would have two options: 1) The student could participate on a
team in alignment with their biological sex, or 2) the person
could choose to participate on a coed team.
SENATOR HUGHES stated that she appreciated the suggestions
members made. She highlighted that her office had prepared some
amendments to address concerns and strengthen the bill. She
indicated that she is confident that SB 140 would prove to be
constitutionally sound. She characterized the invited testifiers
as attorneys who were constitutional scholars familiar with
Title IX.
SENATOR HUGHES stated that this bill was not about divisiveness
or polarization. She said she heard from people from various
political parties and genders.
9:11:19 AM
SENATOR MICCICHE joined the meeting.
9:14:37 AM
JENNIFER BRACERAS, Director, Independent Women's Law Center,
Boston, Massachusetts, began invited testimony in support of SB
140. She stated that she was a former commissioner for the US
Commission on Civil Rights.
MS. BRACERAS stated that 2022 marked the 50th anniversary of
Title IX, a statute enacted to end discrimination in federally-
funded programs and to expand educational opportunities for
women and girls. She said Title IX is a federal
nondiscrimination mandate prohibiting recipients of federal
funds from discriminating based on their sex.
MS. BRACERAS stated that in 1972, society had a common
understanding that sex was male and female. Title IX prohibited
schools from implementing policies that favored members of one
sex over the other. While Title IX requires schools to treat
male and female students equally, the law did not prohibit the
separation of the sexes for specific purposes, such as bathrooms
and locker rooms. Early regulations explained how it would apply
to school sports and included sex separation for competition.
Schools may operate single-sex athletic teams so long as the
policies provide equal athletic opportunities for members of
both sexes. She elaborated that it does not mean that these
opportunities must be identical, such as the same sports teams,
but an equal number. Title IX's binary framework helped usher
unprecedented athletic opportunities and achievements for women
and girls.
9:18:13 AM
MS. BRACERAS indicated that this progress is at risk from
biological men entering and competing in biologically women's
sports. She noted that this included transgender athletes who
identify as female and male. For example, many schools
implemented field hockey and volleyball teams to add
opportunities for women. Many schools do not offer male
volleyball or field hockey teams. Some males have sought spots
on female volleyball teams with varying degrees of success. She
offered her view that this was removing opportunities for female
athletes, displacing them, or in the case of Lia Thomas,[a
transgender swimmer on the University of Pennsylvania swim
team], taking away a chance to win.
9:20:21 AM
MS. BRACERAS stated that it was not about transgender politics,
but it relates to fairness and equal opportunity for women in
competitive sports.
9:20:55 AM
SENATOR MICCICHE recalled her stating that Title IX had nothing
to do with sports although it identified some allowances for
sports. He related his understanding that Title IX related to
nondiscrimination. He asked how it came to be known as Title IX
sports.
MS. BRACERAS responded that Title IX prohibits discrimination in
all aspects of the educational experience, including sports. She
explained that Title IX clearly covers sports because it doesn't
exempt sports. Schools can't discriminate in terms of academics,
only allowing girls to take home economics and boys to take wood
shop. She highlighted that sports were treated differently
because they involved biological differences. The statute
forbids discrimination, but it doesn't mean teams must be
separate.
9:23:27 AM
SENATOR MICCICHE asked for the outcome of any field hockey
lawsuits.
MS. BRACERAS responded that it would depend on the state. She
indicated that Massachusetts has a state Equal Rights Amendment.
The courts have ruled that the state constitutional guarantee
overrides Title IX, and schools must allow male athletes to play
on female teams. She stated from her own experience that her
daughter played against at least three teams with male
participants. She related that in the Ninth Circuit Court of
Appeals (Ninth Circuit) case [Clark v. Arizona Interscholastic
Association], a boy sued to obtain a spot on a women's
volleyball team. The Ninth Circuit determined he was ineligible,
recognizing the physiological fact that males would have an
undue advantage competing against women.
9:25:27 AM
SENATOR MICCICHE related his understanding that the only
difference between the two states was that Massachusetts had a
constitutional ERA, but Arizona did not have it.
MS. BRACERAS agreed. She explained that the ERA would prohibit
discrimination and require full integration of the sexes in each
arena. She stated that other states lack that provision, so it
had not impacted women's sports similarly.
9:26:20 AM
CHAIR HOLLAND related his understanding that in Clark v.
Arizona, a biological male wanted to compete as a male on the
girls' volleyball team.
MS. BRACERAS responded that he was correct.
9:26:31 AM
SENATOR STEVENS offered his view that this was a controversial
issue. Although he was sympathetic to people who were
transitioning, he was also sympathetic that a male could
displace a girl on their team. He asked whether Title IX
addresses changing rooms or locker rooms.
MS. BRACERAS responded that if schools accept federal funding,
the schools agree to abide by Title IX requirements.
9:27:54 AM
SENATOR STEVENS asked whether Title IX had impacted changing
rooms in schools, hospitals, or prisons.
MS. BRACERAS responded that she could not address it
specifically. She stated that it was never considered a
violation of federal law to allow private spaces for men or
women based on privacy, safety, or other relevant
characteristics. She indicated that under Title IX, it would be
discriminatory to favor one sex over the other. She indicated
that as long as institutions provided bathrooms or changing
spaces for both men and women, they would not treat members of
either sex less favorably, so it was not considered
discriminatory. She noted that Title IX does not change those
considerations.
9:30:17 AM
SENATOR BEGICH surmised that she disagreed with the current
administration's position in June 2021, which was that Title IX
equates to gender identity.
MS. BRACERAS responded that sex does not mean the same thing as
gender identity. She stated that Bostock v. Clayton applied only
to Title VII, related to employment discrimination.
9:31:07 AM
SENATOR BEGICH stated that on June 16, 2022, the Biden
administration interpreted sex under Title IX to equate to
gender identity. He asked if she disagreed that that was the
current state of play.
9:31:37 AM
MS. BRACERAS agreed that the Biden administration had
interpreted it that way but had not yet issued regulations. She
stated that US Presidents could not change the meaning of
federal statutes by executive order. She said that for a
department policy to have the force of law, it must be publicly
noticed, allow for a comment period, and the department must
promulgate regulations. She stated that it had not yet happened.
She highlighted that any guidance from the administration was
non-binding as a matter of law.
9:32:12 AM
SENATOR BEGICH asked whether she disagreed with the Biden
administration's interpretation.
MS. BRACERAS answered yes, she disagreed with the
interpretation.
9:32:35 AM
SENATOR BEGICH noted that she had described conflicts in
Massachusetts and Arizona, so she recognized that states might
have differences in constitutional protections and how they
interpret Title IX.
MS. BRACERAS responded that it wasn't about different
interpretations of Title IX; it was a conflict between state and
federal regulations.
9:33:37 AM
SENATOR BEGICH explained that what he was speaking about was
that SB 140 raised complex state constitutional and Title IX
questions. He pointed out that different decisions between the
Ninth Circuit and the US Supreme Court cases mentioned earlier
were because of the differences in Arizona and Massachusetts'
Constitutions.
9:34:19 AM
SENATOR BEGICH asked whether she was familiar with Alaska's
Constitution and its protection for individual rights of
privacy.
MS. BRACERAS answered that she did not have any expertise in
Alaska Constitutional Law, but rather in federal constitutional
and statutory civil rights law.
9:35:05 AM
MATT SHARP, Senior Counsel, Alliance Defending Freedom, Atlanta,
Georgia, provided invited testimony on SB 140. He stated that
one of the arguments the organization often hears is that laws
like SB 140 would violate the Equal Protection Clause of the US
Constitution, which guarantees that everyone receives equal
protection under the law. However, the court cases looking at
that issue, including binding Ninth Circuit precedent, have
upheld that states can draw a distinction based on sex. For
example, the US Supreme Court, United States v. Virginia [518
U.S. 515 (1996)], regarding Virginia Military Institute's policy
of only admitting males. The court ruled that policy
unconstitutional but recognized that the Equal Protection clause
would allow for different housing facilities and physical
standards students must meet. Other courts, including the Ninth
Circuit Court of Appeals decision in Clark v. Arizona, have
upheld policies for separate things based on physiological
differences relevant to the sports context. For example, in the
Ninth Circuit decision, men weren't allowed to compete in
women's sports because of muscle mass and biological differences
that would displace women. Arizona still allowed for equal
opportunity but excluded males from female sports.
MR. SHARP said that SB 140 would say that males are not eligible
to compete on female teams, which is consistent with the Equal
Protection Clause and raises no concerns. In response to Senator
Steven's questions about separate spaces for males and females
under Title IX, he stated that Title IX allows for separate
sports programs and provides separate toilets, locker rooms, and
showers under 34 CFR 106.33. It would also allow for separate
housing. He indicated that Title IX was written to allow states
to have equal opportunities for women.
9:38:45 AM
LAUREN ADAMS, Legal Director, Women's Liberation Front (WOLF),
Madison, Wisconsin, provided invited testimony on SB 140. She
stated that WOLF was the largest radical feminist nonpartisan
nonprofit agency. She said WOLF has over 1,000 members
throughout the US, including in Alaska. She highlighted that
nine states have had bipartisan support, passing bills similar
to SB 140. She stated that WOLF had conducted national and
statewide polling in red and blue states, which suggests that
policies like this were supported by a majority of voters across
the political spectrum. She offered her view that the public
knows having only coed sports was unfair. Separate sports are
permitted under Title IX because of the sex differences that are
highly relevant to athletics. She noted that the only reason
sports are separated was because of the physiological
differences and not because of race, ethnicity, sexual
orientation, religion, or anything else, so gender identity
should not be a factor for eligibility.
9:40:30 AM
MS. ADAMS stated that her organization promotes feminist values,
so it deeply offensive to say that a female athlete's place on a
girl soccer team was contingent on how much she expresses
femininity. She said to say that a male athlete who might
embrace femininity and reject masculinity does not belong on a
mens' or boys' team is not inclusive. Instead, schools should be
focused on ensuring that male athletes are safe and welcome on
teams that are open to their sex instead of asking female
athletes to give up limited spaces available to them. She
offered her view that it violates the Equal Protection Clause
because the status quo is that there are single sex mens' teams,
and coed teams. Thus, when these policies are enacted, women and
girls are being deprived of single sex sports opportunities.
MS. ADAMS stated that when these athletes are forced to compete
on coed teams, they are deprived of scholarships, medals, and
records. She acknowledged that transgender athletes in the US
have been publicized, including Lia Thomas, but one of the most
striking examples was in Iran, where homosexuality is condemned
by death, but sex-changes are state sponsored. She noted that
eight members of the Iranian women's soccer team are biological
males, thereby displacing eight female athletes.
9:42:41 AM
MS. ADAMS said that many polls, including Gallup, suggest that
up to 20 percent of young people playing high school and college
sports identify as transgender, nonbinary, or some other
identity. She said it was very much a feature of the current
generation not to be stuck with one label. She offered her
belief that a single male athlete could repeatedly displace
dozens of women or girls by winning the top slot repeatedly,
displacing female athletes. She indicated that asking women to
give up their spots wouldn't be fair.
9:44:04 AM
SENATOR BEGICH asked if she was aware that the Alaska School
Activities Association (ASAA) has indicated on the record and in
the press that there is no instance where a person in Alaska has
been denied an opportunity for a scholarship or any other
element on a sports team because of transgender sports.
MS. ADAMS responded that she was unaware that there were not
instances in Alaska but had heard of instances elsewhere
9:44:51 AM
MS. ADAMS suggested if there was no displacement, there
shouldn't be any issue putting it into law. If the argument is
that it means that there might not be any athletic opportunities
being realized for transgender athletes, then that should be the
debate. As Ms. Braceras noted, this guidance by the Department
of Education and possible rulemaking, will likely make it
unavoidable that this will happen.
SENATOR BEGICH remarked that the reason for that not occurring
is that it is not constitutional in the State of Alaska. He
indicated that she had mentioned the Gallup poll and evidence
about the Iranian soccer team. He requested that she provide
that data to the committee.
9:45:45 AM
SENATOR MICCICHE noted that she used the term radical female
liberation organization. He asked her what makes the Women's
Liberation Front (WOLF) "radical."
9:46:02 AM
MS. ADAMS responded that radical refers to root feminism. The
organization examines the sex-based oppression of women and
girls, including exploiting reproductive, domestic, and sexual
labor. She stated that WOLF opposes policies that take away
rights from women-only spaces on teams but it also works against
commercial sexual and reproduction exploitation in the multi-
billion dollar pornography business, commercial surrogacy, and
other forms of male violence. She said WOLF fights for the
rights of lesbian and bisexual women disproportionally harmed by
policies by allowing males into female-only spaces.
MS. ADAMS explained that radical doesn't mean fringe or extreme
but was focused on the root cause of discrimination against
women in this country and culture and why they are exploited in
different ways. She surmised that the reason women are exploited
was because women are physiologically and biologically different
from men. For instance, the reason pregnancy discrimination is a
form of sex discrimination was because only women can get
pregnant and have babies. WOLF acknowledges that women can get
pregnant, so they're the moms and are culturally expected to
forego their careers. Radical feminism fights against that type
of discrimination and works to protect women.
9:48:03 AM
MS. ADAMS noted that if people could identify as either sex,
some women identifying as men would mean that men could get
pregnant. This could potentially affect existing laws because
sex discrimination couldn't occur if people could identify as
either male or female.
9:48:46 AM
SENATOR MICCICHE stated that WOLF discussed gender abolition. He
asked how gender abolition was defined and dovetails into this
issue.
MS. ADAMS responded that the National Institute of Health (NIH)
and the World Health Organization (WHO) defines sex by biology.
She noted that some people view gender as a social construct,
which means that any society creates gender roles. She stated
that biological roles would be the roles someone would play if
they chose to reproduce. However, society's expectations of
behavior for women includes their dress, hair, and employment
and education avenues open to people. She explained that gender-
identity policies are an issue for WOLF because a gender
identity or self-identity was typically defined as male, female,
or not binary. She wondered how people can identify as something
any more than a person could identify with a different body type
than they have. Instead, the person would be identifying with
the social role prescribed for women in this country, Iran, or
other countries, which is a subordinate role.
MS. ADAMS highlighted that the reason to have women-only spaces
was to protect them from violence, access to public life, and
the ability to use public spaces. She pointed out that women
fought for women's public bathrooms 100 years ago to have places
to congregate outside the home. She offered her view that
[policies that allow women to be displaced] feel like the US is
going backward. Further, WOLF has a substantial lesbian and
bisexual women membership, a demographic that some of these
policies have very much harmed. Under Title IX, lesbian, gay,
bisexual, transgender, and queer (LGBTQ) campus centers were
telling college girls that they needed to accept opposite-sex
partners because they were experiencing same-gender attraction,
but not same-sex attraction. She expressed concern that a
hetero-normative culture was being imposed on girls at a point
when they are just beginning to accept themselves and be
accepted for their sexual orientation. It can lead to young
women going back in the closet because they don't want to admit
they don't want to accept biological males as partners. She
opined that these things feel very regressive.
9:52:57 AM
SENATOR STEVENS related his understanding that she had indicated
that that one in five young people identify as transgender.
However, in his experience, he did not find this to be true. He
asked if she could provide more information on these statistics.
MS. ADAMS agreed to provide information to the committee. She
stated that it wasn't that 20 percent identify as transgender,
but that 80 percent identify as cisgender, which is a person who
identifies with their birth sex. The remaining 20 percent
identify as other genders, including nonbinary, gender queer,
and gender fluid.
MS. ADAMS offered her belief that it was worth researching
information de-transitioning and de-cisgendering. She stated
that a large population, especially young people, identify as
transgender for a period of time, but over time, they don't,
which means they don't have a fixed identity. She indicated that
many people advocating for certain policies tend to focus on a
small population of young kids who had experienced persistent
gender identities rather than on all gender identities. Some
gender fluidity was due to experimentation, for instance, some
boys don't want to be pigeonholed as masculine, and some girls
don't like limitations or being defined by their sex. In
society, gender-fluid young women are told that if they don't
identify as female, then they must be nonbinary or transgender.
Thus, people signal to those who had rejected these sex
stereotypes that stereotypes define their sex.
9:55:38 AM
MS. ADAMS highlighted that these kids were also being
medicalized. She indicated that the well-meaning policymakers,
in an effort to compromise, suggest young people transition by
taking puberty blockers and starting hormone therapy. She
offered her belief that it was not a solution for those who had
adopted a temporary identity. She offered to provide studies
that show the long-term follow-up for gender fluidity, because
those studies show that 10 years later many transgenders
identify as gay or bisexual adults. Medicalization leads to
irreversible changes in fertility and sexual function for a
group, mainly LGB, which some people believe is a form of
conversion therapy. She related the story of Kai Shappley,
[featured in a docuseries "Trans in America" by the American
Civil Liberties Union (ACLU)], whose conservative family doesn't
accept that their male child by birth identified as a girl until
the young child wanted to die. She said in Iran, a man who wants
to have a sexual relationship with another man is considered a
degenerate. Still, a biological male who wants the same thing
but identifies as a woman would be accepted in society. She
characterized it as people who must fit into a specific box. She
emphasized that these boxes existed and were being reinforced.
9:58:21 AM
SENATOR STEVENS expressed an interest in the data that showed
that 20 percent of American youth identified themselves as
transgender.
CHAIR HOLLAND acknowledged that he had heard the same statistics
and requested that Ms. Adams provide documentation.
MS. ADAMS clarified that 20 percent referred to those
identifying as transgender, nonbinary, or other identities. She
offered to provide the statistics to the committee.
9:59:48 AM
CHAIR HOLLAND stated that Senator Begich commented that SB 140
was unconstitutional. He offered his belief that SB 140 was in
compliance with Title IX.
10:00:10 AM
SENATOR BEGICH clarified that SB 140 was unconstitutional under
Alaska's Constitution, which has stronger protections regarding
the right to privacy and equal protection rights.
SENATOR HUGHES stated that she held a long discussion with Mr.
Sharp on those issues. She deferred to Mr. Sharp to explain why
SB 140 does not infringe on privacy rights or equal protection.
MR. SHARP related his understanding that Alaska mirrored how the
federal courts have interpreted equal protection. He stated that
his previous discussion of how the federal courts have
interpreted the Equal Protection Clause holds true.
10:01:30 AM
MR. SHARP stated that he studied the Alaska Constitution's Right
to Privacy provision. He related his understanding that it
protects publicly disclosing private information. However, SB
140 would not require, permit, or allow any public disclosure of
information about a student in violation of the privacy clause
of the Alaska Constitution because it would all be done
privately. Any student wanting to participate in sports would be
subject to certain eligibility determinations. For example,
questions at the collegiate level would include age and the
length of time competing. High school students seeking to
compete would answer questions about which geographic district
they live in, their age, and weight class for certain sports,
including wrestling. He explained that SB 140 would add to the
list of eligibility questions such that a biological male would
not be able to compete on female teams.
10:02:42 AM
MR. SHARP maintained that the eligibility determination would be
a private conversation, and the student would be told privately
they were ineligible. He acknowledged that students would have
the prerogative if they wanted to raise awareness or complain
about it. The school would handle this the same way that student
eligibility was determined for other sports.
SENATOR BEGICH responded by stating that the Alaska Supreme
Court had opined on the Equal Protection Clause, explicitly
stating that it was designed to be stronger than the equal
protection provided by the US Constitution. Although he
appreciated his comments, he pointed out that Mr. Sharp was not
licensed to practice law in Alaska and had not made those
arguments before the Alaska Supreme Court or other courts. He
emphasized that the legal advice does not concur with his
opinion and states the opposite. He said it begs the question of
whether this bill should be referred to the Senate Judiciary
Committee.
10:04:26 AM
SENATOR MICCICHE stated that it was a strange bedfellow bill. He
related that SB 140 appeared to address a conservative concern.
Yet, WOLF was unabashedly pro-choice, considering themselves
radical in their approach, were teamed up with very conservative
groups, such as Alliance Defending Freedom. He emphasized that
he absolutely supports that biological males should not compete
against biological females in Title IX sports. He wondered what
Ms. Adams thought about the intersex condition regarding sports
participation.
MS. ADAMS responded that she did not have a good answer for the
medical aspect, noting that intersex was very rare. She said
every single disorder or sexual development is sex-specific,
such as having more masculine appearances than feminine ones.
She offered her view that it was very apparent at puberty. She
suggested not conflating that issue with another issue. She
stated that sports were based on bodies and physical abilities.
10:07:30 AM
MS. ADAMS suggested that it was so rare that schools or school
districts should have the flexibility to address cases on a
case-by-case basis as they arise. She was unsure whether the
Alaska School Activities Association, unaware of any transgender
dominance cases in Alaska, was aware of discrimination against
athletes with sexual development disorders. She offered her view
that these people need compassion and that the state needed a
curated solution that she doubted should be addressed at the
legislative level.
SENATOR MICCICHE offered his view that it should not be life-
defining for young people struggling with a medical anomaly. He
wondered if ADA covered intersex issues. He acknowledged that
while Alaska does not have a single case where a transgender
athlete tried to compete on a female team, the legislature was
acting proactively to address future transgender athletes. He
viewed intersex as a potential issue that should be considered.
He asked Mr. Sharp how other states were ensuring that young
athletes without a clear male or female sex delineation sex were
treated so they felt like they belonged and could feel
successful.
10:10:15 AM
MR. SHARP responded that he completely agreed that any student
born with an intersex or similar condition would be fully
protected. He indicated that the Americans with Disabilities Act
(ADA) explicitly covers those individuals in 42 USC 12211, which
includes gender identity disorder based on physical impairment,
chromosomal issues, or other developmental issues such as
ambiguous reproductive anatomy. He clarified that it does not
include someone who is self-identifying but who has those
conditions. He stated that any student with such a condition
would be entitled to full accommodations. He said any student
with a medically-diagnosed intersex condition would receive full
protection. He said the school and parents would work together
to develop a plan similar to other individualized Education
Programs (IEPs).
10:12:38 AM
SENATOR HUGHES moved to adopt Amendment 1 work order 32-
LS0911\A.9.
32-LS0911\A.9
Marx
4/5/22
AMENDMENT 1
OFFERED IN THE SENATE
TO: SB 140
Page 1, following line 2:
Insert a new bill section to read:
"* Section 1. The uncodified law of the State of
Alaska is amended by adding a new section to read:
LEGISLATIVE FINDINGS AND INTENT. (a) The
legislature finds that
(1) maintaining fairness in athletic
opportunities for women is an important state
interest;
(2) requiring the designation of separate
sex-specific athletic teams or sports is necessary to
maintain fairness in athletic opportunities for women;
(3) significant biological and
physiological differences between males and females,
including greater strength, speed, and endurance
capabilities among males on average, provide a
competitive advantage to male athletes in sports; and
(4) having separate sex-specific teams
furthers efforts to promote sex equality and that
discrimination against women and girls in sports is
counter to that effort.
(b) It is the intent of the legislature to
preserve an even playing field in school athletic
programs, to maintain opportunities for female
athletes to demonstrate their strength, skills, and
athletic abilities, and to provide female athletes
with opportunities to obtain recognition and
accolades, college scholarships, and the numerous
other long-term benefits that result from
participating and competing in athletic endeavors."
Page 1, line 3:
Delete "Section 1"
Insert "Sec. 2"
Renumber the following bill section accordingly.
10:12:42 AM
CHAIR HOLLAND objected for purposes of discussion.
10:12:52 AM
DANIEL PHELPS, Staff, Senator Shelley Hughes, Alaska State
Legislature, on behalf of the sponsor, explained Amendment 1. He
stated that although page 14 of the drafting manual typically
advises against statements of purpose, it was helpful in this
case because of some of the constitutional challenges raised.
MR. PHELPS stated that Amendment 1 would provide specific
legislative intent and that the goal of SB 140 was fairness in
athletic opportunities for women and girls.
10:13:36 AM
SENATOR BEGICH offered his view that it did not add to the bill.
Second, he stated that legislative findings and intent are
findings of fact. He directed attention to paragraphs 1 and 3.
He expressed concern that it was demonstrating the fact that
there had been a demonstrated unfairness in athletic
opportunity, which clearly isn't the case. It defines how
different sexes are but doesn't acknowledge that women have
greater endurance for some sports, such as the Iditarod race. He
questioned whether the findings and intent were factual. He
stated that he intended to oppose Amendment 1.
10:14:47 AM
SENATOR HUGHES acknowledged that there would always be
exceptions, but these were based on factual research presented
in the first hearing.
10:15:12 AM
CHAIR HOLLAND stated that he appreciated the article
"Transgender Women in the Female Category of Sport: Perspectives
on Testosterone Suppression and Performance Advantage" by Emma
N. Hilton and Tommy Lundberg. He related that the article
indicated that even after eight years of hormone therapy, there
was still an advantage of transgender females over females based
on their biological male beginnings.
CHAIR HOLLAND noted that Senator Begich maintained his objection
to Amendment 1.
10:15:55 AM
A roll call vote was taken. Senators Stevens, Hughes, Micciche,
and Holland voted in favor of Amendment 1, and Senator Begich
voted against it. Therefore, Amendment 1 was adopted on a 4:1
vote.
CHAIR HOLLAND announced that Amendment 1 was adopted on a vote
of 4 yeas and 1 nay.
10:16:26 AM
SENATOR HUGHES moved to adopt Amendment 2, work order 32-
LS0911\A.6.
32-LS0911\A.6
Marx
4/5/22
AMENDMENT 2
OFFERED IN THE SENATE
Page 1, line 14, following "sex":
Insert "as either female or male, as designated
at the participant's birth. The biological sex listed
on a participant's birth certificate may be relied on
to establish the participant's biological sex
designated at the participant's birth if the sex
designated on the birth certificate was designated at
or near the time of the participant's birth."
10:16:30 AM
CHAIR HOLLAND objected for discussion purposes.
10:16:33 AM
MR. PHELPS explained that Amendment 2 would provide a definition
for biological sex.
10:16:49 AM
SENATOR MICCICHE asked what if the determination of birth was
incorrect and as the child developed, the child was clearly a
gender other than listed on the birth certificate.
10:17:37 AM
SENATOR HUGHES responded that the Americans with Disability Act
(ADA) would accommodate the child. She offered her belief that
sometimes it was difficult to confirm the baby's sex at birth
visually.
10:18:07 AM
MR. SHARP suggested that it would likely be an individual with
an intersex condition or a disorder of sexual development. ADA
would cover it, and their eligibility would be determined by
their Individualized Education Plan or other accommodation
necessary. He emphasized that Amendment 2 was meant to provide a
default rule. For example, a student who had emigrated from
another country might not have a birth certificate, or their
birth certificate may have been amended. He explained that
nothing would preclude schools from asking for additional
evidence. For example, the school could say that because the
student was missing their birth certificate, it would need a
statement from the student's physician verifying their sex.
10:19:33 AM
SENATOR MICCICHE directed attention to the language in Amendment
1 [on line 5], which read, "? was designated at or near the time
of the participant's birth. He related his understanding that
the bill would allow the school to evaluate sex using different
methods. He wondered if this definition locked in the child's
gender at birth as a male or female.
10:20:34 AM
SENATOR HUGHES referred to line 3 of Amendment 2, which read,
"may be relied on," allowing a physician's statement to be used.
10:21:06 AM
SENATOR BEGICH offered his view that "may be relied on" was not
meant to provide an exception. He said he shared Senator
Micciche's concern. He asked whether Legislative Legal Services
provided advice regarding that interpretation.
10:21:29 AM
SENATOR HUGHES responded that Legislative Legal Services drafted
it. She deferred to Mr. Phelps.
MR. PHELPS, on behalf of the sponsor, stated that Legislative
Legal Services drafted Amendment 2, and he also had input from
outside counsel. He explained that the intent behind "may" was
that it was a "may" and not a "shall." Thus, the birth
certificate may be relied upon, which would allow for another
potential document or determination if there was a specific
situation that merited it.
10:22:27 AM
SENATOR BEGICH wondered if Legislative Legal Services could
answer whether the language in Amendment 2 would prohibit a
student whose birth certificate erroneously identified the
baby's sex at birth from being able to participate.
CHAIR HOLLAND answered that no one from Legislative Legal
Services was available.
10:22:47 AM
SENATOR HUGHES stated that she was confident it would address
Senators Micciche and Begich's concerns.
10:23:13 AM
CHAIR HOLLAND agreed.
10:23:20 AM
SENATOR BEGICH stated that he interpreted Amendment 2 to say
that the birth certificate may be relied on if the sex
designated on the birth certificate was designated at or near
the time of the participant's birth. He offered his view that it
would mean that it would not be relied upon if it came later. He
said that is why he believes Amendment 2 is ambiguous.
10:23:47 AM
SENATOR MICCICHE agreed that was the same question he had at the
beginning of this discussion. He offered his view that it did
not seem to allow a birth certificate to be amended, which could
lock in a biological male or female's sex incorrectly. He noted
that Alaska has less conventional medical care available in some
rural areas. He asked whether there could be an exception if the
sex of the child turns out to be wrong and whether the birth
certificate could be amended.
10:25:40 AM
MR. SHARP responded that he was not concerned. He explained that
if a baby was assigned the wrong sex at birth, but through
testing or other means, it was determined that the person's
gender on their birth certificate was listed wrong, it would be
covered under ADA. It would trump state law, and ADA provisions
would determine their eligibility. He noted that several states
currently allow individuals to change their birth certificates
to reflect their gender identity without any medical diagnosis.
He noted that this had resulted in some males being allowed to
compete as females in sports.
10:26:42 AM
MR. SHARP related a scenario where a 13 or 14-year-old had their
birth certificate amended to reflect their gender identity. If
they insisted that they be allowed to compete on a female team
[even though they are biologically a male], the amendment would
require the school to refer to the sex assigned at or near the
birth as shown on their birth certificate.
10:27:00 AM
MR. SHARP stated that Amendment 2 would inform schools that they
could rely on the birth certificate as long as the sex listed on
the birth certificate was designated at or near the time of the
participant's birth. If the birth certificate was changed at a
later date, this language would inform the school that it could
not rely on the birth certificate, so the school would need
further documentation, such as a signed affidavit from a
physician or other evidence to verify their sex. He related that
the bill provides flexibility because some schools require a
sports physical that lists the student's sex, which a physician
signs.
10:28:28 AM
SENATOR HUGHES related her understanding that Alaska allows some
birth certificates to be amended. She said she was glad that in
the rare instances of intersex, the students would be covered
under ADA.
10:29:03 AM
CHAIR HOLLAND removed his objection.
10:29:11 AM
SENATOR BEGICH objected.
SENATOR BEGICH said that Amendment 2 would create legal
ambiguity, so it should have a referral to the Senate Judiciary
Committee.
10:29:37 AM
A roll call vote was taken. Senators Hughes, Micciche, Stevens,
and Holland voted in favor of the motion to adopt Amendment 2,
and Senator Begich voted against it. Therefore, Amendment 2 was
adopted on a 4:1 vote.
10:29:53 AM
CHAIR HOLLAND announced that Amendment 2 was adopted on a 4:1
vote.
10:30:04 AM
SENATOR HUGHES moved to adopt Amendment 3, work order 32-
LS0911\A.12.
32-LS0911\A.12
Marx
4/5/22
AMENDMENT 3
OFFERED IN THE SENATE BY SENATOR HUGHES
TO: SB 140
Page 1, line 15, following "protected.":
Insert "(a)"
Page 2, lines 1 - 2:
Delete "consider a complaint, open an
investigation, or"
Page 2, following line 3:
Insert new subsections to read:
"(b) A school or a school district may decline
to consider a complaint brought against the school or
school district for complying with AS 14.18.150.
(c) Nothing in this section abrogates,
restricts, or otherwise limits
(1) the access of any person to a state or
federal court; or
(2) a person's right to bring in state or
federal court a complaint or cause of action arising
out of this section."
10:30:08 AM
CHAIR HOLLAND objected for discussion purposes.
10:30:12 AM
MR. PHELPS explained Amendment 3 would provide clarifying
language to Sec. 14.18.160. He stated that this section intended
to reduce the burden and expense for schools and school
districts for costs associated with complaints for complying
with the law. The sponsor expressed an interest in allowing
school districts to make their own choices about responding to
complaints. Amendment 3 would remove the restriction on
consideration of such complaints and open an investigation for a
complaint arising from this legislature. The bill would grant a
school or district the power to decline to consider a complaint
against them for complying with the law. He indicated that other
language provides that nothing in this section would abrogate,
restrict, or otherwise limit a person's access to the courts or
their right to bring a cause of action arising out of this
section.
10:31:21 AM
SENATOR BEGICH stated that he was uncertain whether Amendment 3
resolves the issue raised in a letter from Legislative Legal
Services that he had provided to the committee dated March 2,
2022, from Marie Marx, Legislative Counsel.
SENATOR HUGHES responded that due process rights were discussed
with Legislative Legal Services when drafting Amendment 3. She
said she was confident that it does address the question raised.
10:32:11 AM
CHAIR HOLLAND stated he appreciated the sponsor's action on
Amendment 3. He indicated his support for Amendment 3.
10:32:16 AM
CHAIR HOLLAND removed his objection.
SENATOR BEGICH stated he would not object to Amendment 3 but
would seek a legal opinion on Amendment 3.
10:32:36 AM
CHAIR HOLLAND found no further objection, and Amendment 3 was
adopted.
10:32:51 AM
SENATOR HUGHES moved to adopt Amendment 4, work order 32-
LS0911\A.3.
32-LS0911\A.3
Marx
4/4/22
AMENDMENT 4
OFFERED IN THE SENATE
TO: SB 140
Page 2, following line 19:
Insert a new section to read:
"Sec. 14.18.180. Access to courts. Nothing in
AS 14.18.150 - 14.18.190 abrogates, restricts, or
otherwise limits
(1) the access of any person to a state or
federal court; or
(2) a person's right to bring in state or
federal court a complaint or cause of action arising
out of AS 14.18.150 - 14.18.190."
Page 2, line 20:
Delete "Sec. 14.18.180"
Insert "Sec. 14.18.190"
Delete "AS 14.18.150 - 14.18.180"
Insert "AS 14.18.150 - 14.18.190"
10:32:53 AM
SENATOR HOLLAND objected for discussion purposes.
10:32:55 AM
MR. PHELPS, on behalf of the sponsor, explained that Amendment 4
pertains to court access. It makes a similar statement as the
previous amendment. Still, it would apply to the entire bill,
such that nothing in the bill would prevent a person's access to
state or federal court or a person's right to bring a complaint
or cause of action to a state or federal court arising from the
bill.
10:33:50 AM
CHAIR HOLLAND removed his objection; he found no further
objection, and Amendment 4 was adopted.
10:34:11 AM
SENATOR HUGHES clarified that Senator Micciche sought after and
would offer Amendment 5.
10:34:24 AM
SENATOR MICCICHE moved to adopt Amendment 5, work order 32-
LS0911\A.10.
32-LS0911\A.10
Marx
4/5/22
AMENDMENT 5
OFFERED IN THE SENATE BY SENATOR HUGHES
TO: SB 140
Page 2, lines 6 - 7:
Delete "for injunctive relief, damages, and any
other relief available under law"
Page 2, lines 12 - 13:
Delete "for injunctive relief, damages, and any
other relief available under law"
Page 2, lines 16 - 17:
Delete "for injunctive relief
10:34:29 AM
CHAIR HOLLAND objected for discussion purposes.
10:34:32 AM
SENATOR MICCICHE explained Amendment 5. He stated that Sec.
14.18.170, relating to liability, provides a student the right
to bring a private cause of action against a school. He said he
thought the bill went too far by suggesting categories of
action. Amendment 4 would remove the language "for injunctive
relief, damages, and any other relief available under law" from
all three sections.
10:35:27 AM
CHAIR HOLLAND removed his objection; he found no further
objection, and Amendment 5 was adopted.
10:35:43 AM
SENATOR MICCICHE moved to adopt Amendment 6, work order 32-
LS0911\A.11.
32-LS0911\A.11
Marx
4/5/22
AMENDMENT 6
OFFERED IN THE SENATE BY SENATOR HUGHES
TO: SB 140
Page 2, following line 19:
Insert a new section to read:
"Sec. 14.18.180. Relationship to rights under
federal law. AS 14.18.150 - 14.18.190 may not be
construed to modify a person's rights under 20 U.S.C.
1400 - 1482 (Individuals with Disabilities Education
Act), 29 U.S.C. 794, or 42 U.S.C. 12101 - 12213"
Page 2, line 20:
Delete "Sec. 14.18.180"
Insert "Sec. 14.18.190"
Delete "AS 14.18.150 - 14.18.180"
Insert "AS 14.18.150 - 14.18.190"
10:36:14 AM
CHAIR HOLLAND objected for discussion purposes.
10:36:17 AM
SENATOR MICCICHE explained Amendment 6. He said he wanted to
clarify that there are cases of physiological issues associated
with an intersex condition. He said he would like to support
youth with this condition, which is beyond their control. He
stated that nothing in the bill would modify a person's rights
under the Individuals with Disabilities Education Act or ADA
issues.
10:37:00 AM
CHAIR HOLLAND removed his objection; he found no further
objection, and Amendment 6 was adopted.
10:37:29 AM
SENATOR STEVENS said he supports moving SB 140. He expressed
concern that the bill did not receive a referral to the Senate
Judiciary Committee. He stated that many of the issues are
constitutional issues, which transcend the scope of the Senate
Education Committee.
10:38:56 AM
SENATOR BEGICH agreed with Senator Stevens. He said he would do
his best to ensure the bill gets a hearing in the Senate
Judiciary Committee. He wondered if the sponsor was chasing a
problem that doesn't exist, as Billy Strickland, the executive
director for the Alaska School Activities Association (ASAA),
had indicated. He said he was disappointed the committee spent
so much time on this bill. Since he is participating via
teleconference, he cannot vote on the motion to report it from
the committee, but if so, he would oppose it.
10:40:03 AM
SENATOR MICCICHE stated that the committee dealt with many
issues that would be considered judiciary issues. He said he
would have referred it to the Senate Judiciary Committee had he
realized the constitutional issues that would be raised.
SENATOR MICCICHE emphasized that sports save lives, because many
extracurricular activities provide youth with activities they
love. He offered his view that the bill provides some
protections or the committee highlighted that the protections
were provided under federal law. He stated that his vote on SB
140 would be to separate and defend female sports from medically
biological males from participating in them.
10:42:00 AM
SENATOR HUGHES offered her view the Senate Education Committee
improved the bill by amending it to clarify and put to rest some
constitutional issues. She highlighted that this issue has had a
national conversation. She noted that 12 or 13 other states
considering this issue only had one committee of referral. She
reminded members that legislators take an oath to the
constitution. She related that she had served on various
committees, and constitutional issues arose. She noted that the
invited testifying attorneys offered their views that this bill
would withstand constitutional scrutiny and be upheld by the
courts. In response to Senator Begich's concern that this bill
doesn't address a current problem, legislators don't just fix
problems but also prevent them.
SENATOR HUGHES stated that she wanted to assure the young girls
and women who work hard in sports that they will continue to
have what Title IX had afforded to women's sports. She said the
bill wasn't about excluding anyone but was to ensure that all
students have an opportunity to be included in a team aligned by
their biological sex or a coed team. She offered her belief that
delaying addressing this issue could erode girl and women's
sports.
10:45:45 AM
SENATOR STEVENS moved to report SB 140, work order 32-LS0911\A,
as amended, from committee with individual recommendations and
attached fiscal note(s).
CHAIR HOLLAND found no objection and CSSB 140(EDC) was reported
from the Senate Education Standing Committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB140 _AASB- letter.pdf |
SEDC 4/6/2022 9:00:00 AM |
SB 140 |
| SB 140 Testimony - Women's Liberation Front Letter of Support.pdf |
SEDC 4/6/2022 9:00:00 AM |
SB 140 |
| SB 140 Amendment #1 (A.9).pdf |
SEDC 4/6/2022 9:00:00 AM |
SB 140 |
| SB 140 Amendment #2 (A.6).pdf |
SEDC 4/6/2022 9:00:00 AM |
SB 140 |
| SB 140 Amendment #3 (A.12).pdf |
SEDC 4/6/2022 9:00:00 AM |
SB 140 |
| SB 140 Amendment #4 (A.3).pdf |
SEDC 4/6/2022 9:00:00 AM |
SB 140 |
| SB 140 Amendment #5 (A.10).pdf |
SEDC 4/6/2022 9:00:00 AM |
SB 140 |
| SB 140 Amendment #6 (A.11).pdf |
SEDC 4/6/2022 9:00:00 AM |
SB 140 |