Legislature(2021 - 2022)BUTROVICH 205
03/03/2022 10:00 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 34 | TELECONFERENCED | |
| *+ | SB 140 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 140-DESIGNATE SEX FOR SCHOOL-SPONSORED SPORTS
10:48:47 AM
CHAIR HOLLAND announced the consideration of SENATE BILL NO. 140
"An Act relating to school athletics, recreation, athletic
teams, and sports."
10:49:39 AM
SENATOR HUGHES speaking as the sponsor of SB 140, read her
opening statement:
Fifty years ago, women's sports changed forever. In
1972, slightly over 300,000 women and girls played
college and high school sports in the United States.
As of 2022, the number of female athletes in the US
has increased by over 900 percent to more than 3.5
million women and girls, thanks to the passage of
Title IX and the end of discrimination against girls
and women in sports. When I was a child and a
teenager, I loved basketball, and I shot hoops in my
driveway a lot, but there was no option for a female
to play at school. The only option was to be a
cheerleader and root for the boy's team. Fortunately,
my daughter had options due to Title IX and played
varsity girls' basketball in high school.
But this year, as we celebrate Title IX's 50th
anniversary, women and girls stand, once more, at risk
of being discriminated against, of losing an even
playing field in sports. An ever-increasing trend of
male-bodied athletes in women's sports threatens
competition and fairness. Girls and women should not
be robbed of the chance to be selected for a team, to
win a championship, or to be awarded a college
scholarship due to the physical advantage of male-
bodied athletes.
Title IX promises, "No person in the United States
shall, on the basis of sex, be excluded from
participation, or be denied the benefits of, or be
subjected to discrimination under any education
program or activity receiving federal financial
assistance." SB 140 seeks to ensure we don't revert to
discriminating against girls and women, as was the
case pre- 1970s.
Now, for those of you who think this bill is about
discriminating against those who identify as a gender
different from their biological sex at birth, it is
not. I want to put on the record that I love and value
every person, including these individuals. They are
precious and should have access to an even playing
field as well and opportunities to participate in
athletics. I am not transphobic and believe every
person deserves an even playing field. This bill is
not about blocking anyone from athletic opportunities,
that would be in violation of Title IX. This is about
ensuring Title IX is upheld.
10:53:00 AM
SENATOR HUGHES continued reading.
Thanks to Title IX, transgender athletes are
protected from discrimination in sports and
promised equal access to athletic programs. Their
inclusion in sports absolutely must be protected,
but it must not come at the cost of
discrimination against women.
The goal of SB 140 is to ensure discrimination
against girls and women does not occur. That they
are treated fairly and not disadvantage in
athletic programs compared to male-bodied
athletes whether they identify as male or female.
Undeniable evidence and scientific research
concluded that the average biological male body
is stronger, larger, and faster than the average
female body even after multiple years of
testosterone suppression treatment.
We see the imbalance, the male body advantages,
particularly in high school athletics. For
example, many male high school track and field
athletes consistently beat the times of the best
female Olympians, who've trained intensively for
years. Male-bodied athletes have a substantial
advantage over female athletes in sports,
regardless of the beliefs that the male-bodied
athlete may hold about their sexuality or gender
identity and regardless of multiple years of
testosterone suppression therapy.
As many of you are aware, this topic has come to
the forefront of public debate online and in the
news lately. Transwomen are dominating in a
variety of women's sports, both at the collegiate
and high school levels. To that end, I would like
to read a section of a letter written by 16 UPenn
Swim Team Members regarding their teammate, Lia
Thomas, a male-bodied athlete who identifies as a
female:
We fully support Lea Thomas in her decision
to affirm her gender identity and to
transition from a man to a woman. Leah has
every right to live her life authentically.
However, we also recognize that when it
comes to sports competition, that the
biology of sex is a separate issue from
someone's gender identity. Biologically, Lia
holds an unfair advantage over competition
in the women's category, as evidenced by her
rankings that have bounced from 462nd as a
male competitor to number one as a female
competitor. Leah's inclusion with unfair
biological advantage means that we have lost
competitive opportunities. Some of us have
lost records.
10:55:36 AM
SENATOR HUGHES continued reading:
This is the concerns addressed by SB 140. Only 18 of
the 40 members of the U Penn team will be chosen to
compete at the Ivy Championships. If Lea Thomas is
selected, a biological female will lose her
opportunity to compete without an option for another
category in which they could hope to qualify. Again, I
emphasize that Lea Thomas and other trans athletes
deserve the opportunity to compete and win fairly.
However, it must not come at the cost of excluding
otherwise qualifying biological females from the only
category of sports in which they can hope to succeed.
10:56:19 AM
SENATOR HUGHES continued reading:
I'd like to take a moment to point out one familiar to
us in this imbalance of the male and female
physiological makeup. Lydia J. Kobe from Seward,
Alaska, won the gold medal for her time in the 100
meters in Tokyo, was about seven and a half seconds
longer than her counterpart, who won the gold medal in
the 100 meters, an American, Adam Peaty. There is just
a vast difference.
This issue at hand doesn't just impact college and
world competitions. It can be traced all the way down
to K-12 sports. Public school athletic programs are
the primary opportunity for biological females to
compete, win and earn scholarships for their
accomplishments. Not only are physiological advantages
of male-bodied athletes a consideration when it comes
to a level and fair, and true competitive playing
field, but safety is another concern. When it comes to
team sports and contact sports, the physical
advantages, such as strength, size, and speed of male-
bodied athletes, can put female-bodied athletes at
risk of physical harm.
SB 140 addresses the issue from several angles. First,
the bill requires public schools and private schools
competing against public schools to designate their
teams as either male, female, or co-ed. Subsequently,
the bill stipulates that membership on a team
designated female must be based on the participant's
biological sex. The bill also protects schools from
the threat of legal action for upholding the proposed
law. Finally, students are guaranteed the right to
seek legal action if they are deprived of athletic
opportunity or suffer retaliation or other adverse
action due to a school's lack of compliance with law.
These protections would maintain competition and
present Alaskan girls and women with an even playing
field. For decades Title IX law ensured that
biological sex-specific separations in athletics are
legal. This has preserved competition while allowing
women the chance to win. Senate Bill 140 is in line
with Title IX. In case you're wondering, the Emergency
Order 13988 issued at the federal level that tied
funding to allow male-bodied athletes to participate
in girls' and women's sports was based on a court
ruling pertaining to employment law, not to school
sports law, and it is in direct violation of Title IX.
10:59:06 AM
SENATOR HUGHES continued reading:
I want to point out too, SB 140 stands for an equal
opportunity for all. The liability section of the bill
would actually give a trans student athlete the
ability to file suit if deprived of an athletic
opportunity from a violation of this legislation. This
bill is not designed to preclude trans individuals
from participation in sports but rather to ensure that
participation in any category is fair based on the
athletics physiological ability. Enabling a
disadvantaged group should not necessitate
disadvantaging another group. The great triumph of
Title IX and the success of millions of women in
athletics must not be discarded in the name of social
progress. In closing, I want to make two final points:
I have nothing against anyone who wishes to be
transgender. However, I believe there's a
fundamental difference between the binary sex
you're born with and the gender you may identify
as. To protect women's sports those with a male
sex advantage should not be able to compete in
women's sport. It's not a transphobic thing. I
really want to say we have no issue with people
who are transgender. Every single woman athlete
I've spoken to, and I've spoken to many, all of
my friends in international sports, understand
and feel the same way as me.
Sharon Davis, Olympic medalist
I was bumped to third place in the 55-meter dash
in 2019, behind two transgender runners. With
every loss, it gets harder and harder to try
again. That's a devastating experience. It tells
me that I'm not good enough that my body isn't
good enough. And that no matter how hard I work,
I am unlikely to succeed because I'm a woman.
- Chelsea Mitchell, Canton High School Student
11:01:22 AM
SENATOR HUGHES continued reading:
The mental health of girls and women is at stake. The
argument regarding mental health has been made on
behalf of male-bodied athletes who, via this bill,
could still participate in co-ed or boys and men's
sports but not female sports, but we often fail to
think about what happens if we don't address this
issue when it comes to girls and women. How are we
impacting girls and women their mental health - if
we allow male-bodied athletes to beat them out of
spots, on rosters, out of championships, and out of
scholarships? That's one point I wanted you to
consider.
The final point is if we do not address this,
eventually, over time, girls' and women's sports will
be, frankly, totally eroded. Coaches are hired to take
teams to victory. When one women's team has a male-
bodied athlete giving that team an advantage, other
coaches will be pressured to have the same advantage
and will recruit male-bodied athletes. Rosters will
eventually fill up with more and more male-bodied
athletes to increase this advantage and victories,
robbing more and more females from athletic
opportunities.
We do not want this trend to take hold in Alaska. Your
support to ensure discrimination against girls and
women does not occur in our state is needed. Thank
you.
11:02:38 AM
SENATOR HUGHES stated the presentation of SB 140 would include
invited testimony of athletes, coaches, and legal and technical
experts. The presentation would also include slides from
research studies, articles, and quotes.
She began the presentation by sharing quotes from the document
Competition: Title IX, Male-Bodied Athletes, and the Threat to
Women's Sports, slides 1-13:
[Original punctuation provided.]
[T]here will always be significant numbers of boys and
men who would beat the best girls and women in head-
to-head competition. Claims to the contrary are simply
a denial of science.
MARTINA NAVRATILOVA Winner of 18 Grand Slam
Tennis Singles Titles
I would have won my first ever high school track meet
if it weren't for this [male-bodied] athlete...It was
very disappointing.
MARGARET ONEAL Hawaii
Those with a male sex advantage should not be able to
compete in women's sport.
SHARRON DAVIES British Olympic Silver Medalist
We're all about equality for women in sport but right
now that equality is being taken away from us. . . .
Unfortunately, there's nothing we can do because every
time we voice it we get told to be quiet.
TRACEY LAMBRECHS Former Women's Olympic
Weightlifter (2016 Rio), New Zealand
11:04:56 AM
SENATOR HUGHES noted the distance of the 2nd and 3rd place
finishers behind CeCe in slide 5.
NCAA Division II runner CeCe (formerly Craig) Telfer
of Franklin Pierce University wins the 400 meter
hurdles on May 25, 2019.
I don't know of a woman athlete who doesn't want trans
girls to be treated fairly... But the cost of treating
her fairly should not come at the cost of
discriminating against a biologically-female-at birth
woman.
DONNA LOPIANO Former CEO, Women's Sports Foundation
I didn't feel it was fair for [this athlete] to be
playing [and taking] away a position from girls who
could have started, which to me was so wrong on so
many levels.
DESTINY LABUANAN Maui, HI
We know who's going to win the race before it even
begins...It just seems like all our hard work is going
down the drain.
ALANNA SMITH Danbury, CT
In 2017, men and boys around the world outperformed
Allyson Felix's best 400-meter more than 15,000 times.
I knew that I was the fastest girl here, one of the
fastest in the state....Then, the gun went off. And I
lost.
CHELSEA MITCHELL Canton, CT
Coaches at the collegiate level are rewarded for
winning, so these coaches will choose biological males
in order to remain competitive in their conference.
Where are the spaces for biological females then? What
does this mean for equal opportunity for women?
CYNTHIA MONTELEONE Team USA Masters Track Athlete,
Coach, and Metabolic Practitioner
When it comes to women's sports, biology matters.
INGA THOMPSON 10x National Champ, 3x Olympian,
3x World Medalist, 2x Podium Finisher
in the Women's Tour de France
[When it comes to competitive athletics,] sex
segregation is the only way to achieve equality for
girls and women.
MARTINA NAVRATILOVA Winner of 18
Grand Slam Tennis Singles Titles
11:07:21 AM
At ease.
11:08:00 AM
CHAIR HOLLAND reconvened the meeting.
11:08:05 AM
DANIEL PHELPS, Staff, Senator Shelley Hughes, Alaska State
Legislature, Juneau, Alaska, stated that peer-reviewed
scientific reports support SB 140. In the British Journal of
Sports Medicine, in a report titled "The Effect of Gender
Affirming Hormones on Athletic Performance in Transwomen and
Transmen," researchers found that prior to hormone therapy,
transwomen had a 15 to 31 percent athletic advantage over
biological females. After one year of testosterone suppression,
transwomen still had 9 percent faster mean run speeds than
biological women. One year of suppression is the recommended
time for transwomen's inclusion into women's sports by world
athletics.
MR. PHELPS said another study done by Drs. Hilton and Lundberg
titled "Transgender Women in the Female Category of Sport"
reviewed the differences between biological males and females in
athletics and assessed whether testosterone suppression removed
the performance advantage of male-bodied athletes. It was found
that the performance gap between male and female-bodied athletes
becomes significant at puberty. The gap is as much as 10 to 50
percent, depending on the sport. The study also found that
strength, lean body mass, muscle size, and bone density are only
trivially affected by testosterone suppression.
MR. PHELPS advanced to a slide titled Table 4. He said that
research at Duke Law compared male and female-bodied athletes'
data from track and field events across various levels. The
research revealed that female-bodied athletes are not
competitive for the win against males. He stated that the second
column from the left showed the best results across a range of
events for the top female athlete in each event. The next column
showed boys, which would be male-bodied athletes under the age
of 18, and the best result for each event. The best boy beat the
best woman in the world in every event. The difference is
greater when the top woman athlete results are compared to men.
The fourth column shows the number of boys who in one year beat
the best woman in the world in her event. The far-right column
is a tally across time of the number of instances where men
outperformed female-bodied athletes. The numbers are in the
1000s.
11:11:22 AM
SENATOR HUGHES mentioned that a male tennis player who ranked
203rd in the world beat both Serena and Venus Williams. A high
school boy beat Florence Griffith-Joyner's world record time,
and a male competitor ranked 5606th tied with her time, which
illustrates the differences in body types using data.
11:12:29 AM
CHAIR HOLLAND turned to invited testimony.
11:12:38 AM
CYNTHIA MONTELEONE, Team USA Track Athlete, Maui, Hawaii, read
her op-ed published by Fox News:
I'm a mom, a coach and a Team USA World Masters track
athlete who is fighting for something greater than
another gold medal: I'm standing for the protection of
women's sports.
If male-bodied athletes continue competing on female
teams, it will be the end of women's sports. This is
no exaggeration; this is reality, and it's happening
right now.
At the 2018 World Masters Athletics Championships in
Malaga, Spain, I competed in the 200-meter race
against a male-bodied athlete, whom I beat by only a
few tenths of a second. The next year, the same
athlete beat my teammate in the hurdles for a place on
the podium at the 2019 World Championship indoor meet
in Poland.
MS. MONTELEONE added that people argue that if she won, there is
no issue. However, one female beating one male does not mean all
elite females can beat all elite males. Furthermore, the
individual she won against was approximately 6'5" tall, which
gave him the advantage in the hurdles.
MS. MONTELEONE resumed reading:
My teammate had trained harder than anyone I know. It
wasn't just on the world stage that I experienced the
demoralizing trend of male-bodied athletes displacing
females from their own competitions; it was also on my
home island of Maui, Hawaii.
A year and a half after my experience in Spain, my
daughter lost to a biological male identifying as
female in her first-ever high school track race.
11:14:34 AM
MS. MONTELEONE noted that due to COVID, this had been her
daughter's only track race, and it was lost to a biological
male.
MS. MONTELEONE resumed reading:
I had watched proudly as my strong and determined girl
did all the right things made personal, difficult
sacrifices to train her body to be as fast and fit as
possible for her first race.
Yet all her hard work seemed to drift away along with
the male-bodied athlete, who had just transferred from
the boys' volleyball team to the girl's team the
season before.
MS. MONTELEONE added that the issue is also about safety. The
same male-bodied athlete spiked the ball so hard it gave a girl
a concussion.
MS. MONTELEONE resumed reading:
The athlete breezed right by her to win first place,
leaving her to finish second.
How can you win as a female when you're lined up next
to a male body whose strength, heart and lung
capacity, and pace are all greater than your own no
matter what the "treatment"?
It's not only the fact that my daughter placed second
behind this individual in her first race, but we also
began to witness all the other ways this injustice
impacts families like ours: the mental health impact
on girls who have to race male-bodied athletes, the
personal lessons in effort rewarded and goals
achieved, and future scholarships, awards and
accolades.
11:16:05 AM
MS. MONTELEONE continued reading:
Numerous studies have shown males continue to hold
large physical advantages over females, even when
suppressing their testosterone. A male's muscular
advantage is only minimally reduced when testosterone
is suppressed, and males are still 12 percent faster
than their female counterparts after two years of
feminizing hormones.
We are not just hormones. What about the impact of our
cycle on sports performance? What about the impact of
birth control or pregnancy? These are all valid
obstacles that males identifying as females do not
have to address.
The most important factor is the psychological toll.
Many of the girls I coach suffer from anxiety over
having to compete against male-bodied athletes. We all
know the powerful scientific neurotransmitter
connection between our minds and our bodies: When you
think you can win, it is scientifically proven you
have a better chance of doing it.
Yet those of us who dare speak out that competing
against males is unfair are told, "Oh, it's not that
big of a deal. It doesn't happen that often." "Just
keep your mouth shut and be quiet." That's what I was
told when I raised questions as to the unfairness of
running next to a male-bodied athlete at the World
Masters.
From coast to coast, we see college administrators,
coaches, the National Collegiate Athletic Association,
and many others in the media and culture trying to
downplay our stories and sweep us under the rug. But
know this:?There is a groundswell. From my very own
daughter raising her voice along with the young track
stars Chelsea Mitchell, Selina Soule and Alanna Smith
in Connecticut, to Lainey Armistead, who plays soccer
in West Virginia, to the female swimmers at the
University of Pennsylvania who are stressed by the
presence of a male in their locker room (not to
mention the women who compete, and often lose, against
this male-bodied athlete).
11:17:50 AM
MS. MONTELEONE continued:
Yes, indeed, there's a chorus of voices bravely
recounting the missed opportunities, lost scholarships
and titles, and the enormous challenge of competing in
the sport you love on a playing field you know isn't
level.
How does this affect how girls think about the future?
My daughter is a junior in high school and plans to
follow in my footsteps and pursue collegiate-level
track. But she is already worried about whether she
will be able to compete for and receive scholarships.
After all, we know college athletic departments get
funding from producing champions so what's their
motivation to recruit biological women like her for
their female teams when male-bodied athletes could
bring a better chance of victory and more money? We
are already seeing this trend at the University of
Pennsylvania.
It is wrong for high school girls or women at any
age, for that matter to worry about not being good
enough simply because they are a woman. We are
witnessing the nail in the coffin in the death of
Title IX.
Female athletes deserve their chance to receive
accolades, awards and scholarships. We must raise our
voices on behalf of fairness and equal opportunity for
all women, before the entire category of women's
sports is erased.
11:18:58 AM
ALARY WOODS, representing self, Lexington, Kentucky, stated she
underwent full gender-affirming surgery to legally and
clinically be female, something she has desired since the age of
four. She said she is grateful for the advancements that made
the transformation possible. She opined that fairness in women's
sports needs to be preserved. A balance needs to be struck
between the support of transwomen and the goodwill essential for
promoting long-term integration efforts based on solid
foundational principles. The first principle is that the
history, suffrage, setbacks, and fears of women, by extension,
are the struggles of transwomen. Therefore, transwomen should
speak up for fellow sisters, daughters, and mothers when rights
and accomplishments are being systemically rolled back. She said
it is distressing to her that women's voices are being coerced
into silence for an ideology that is untenable and unsustainable
in its present form.
11:21:37 AM
MS. WOODS said that not considering the voices and needs of
fellow females is the antithesis of being a woman. She said
being welcomed into womanhood made her a woman, not make-up,
pronouns, or surgeries. Women that supported her in her
transition have confided to her that it is not fair for male-
bodied athletes to compete in female sports. Therefore, she
desires to support the collective of all women in the struggle
to maintain female-bodied sports. The barriers ideologues impose
to segregate and tarnish goodwill and trust should be broken by
constructive dialogue and collaboration with no voice silenced.
Everyone should be heard so that fears imposed by academicians
and others can be released from relationships. Trans and non-
trans voices should be heard to discover the best outcome.
11:24:44 AM
TANNER HART, representing self, Illinois, said she competed in
women's track and field in high school and won 13 Alaska State
women's track and field titles. She went on to compete at
college and competed against a biological male. She opined that
it is unfair because physiologically, their hearts are larger,
and their lungs have more capacity. These two facts are enough
for male and female sports to be kept separate. Allowing male-
bodied athletes in female sports forces women to compete at a
disadvantage.
11:26:26 AM
LARRY WHITMORE, Retired Alaska Athlete Official, Hawaii, said he
is a former teacher and coach in the Anchorage School District
who supports the Alaska Even Playing Field Act. He has coached
various sports for boys and girls. He has also been a cross-
country running, track and field official. The mission statement
for track and field officials states they are to regulate and
administer interscholastic athletic competition fairly and
safely. This is not possible when biological males are allowed
to compete with biological females. We already know that
biological males have greater bone density, bigger hearts and
lungs, and more muscle strength than biological females. Other
aspects make competition between biological males and females
unfair. Girls' bodies begin changing between the ages of 12 and
15 to prepare for childbearing. As a coach he became aware of
the physical and emotional challenges some girls face during
their monthly cycle and the affect it had on their performance.
From experience coaching track and field, he noticed many girls
performed their best in their first two years of high school
before their hip area developed. He stated that these changes
only occur in biological females, which makes competition
between men and women unfair. Common sense dictates that to
protect Title IX and save women's sports from being destroyed,
biological males must not compete in women's sports. He strongly
supports allowing everyone to participate and compete in
interscholastic sports by having transgender or co-ed teams.
11:31:22 AM
MR. PHELPS shared slides containing quotes from court cases that
establish precedent for SB 140:
[Original punctuation provided.]
There are [i]nherent differences between men and
women, and these differences remain cause for
celebration, but not for denigration of the members of
either sex or for artificial constraints on an
individual's opportunity.
United States v. Virginia 518 U.S. 515.533 (1996).
Because of innate physiological differences, boys and
girls are not similarly situated as they enter
athletic competition.
Kieczek v. Rhode Island Interscholastic League, Inc.
612 A.2d 734.738 (R.I. 1992)
It takes little imagination to realize that were play
and competition not separated by sex, the great bulk
of the females would quickly be eliminated from
participation and denied any meaningful opportunity
for athletic involvement.
Cape v. Tenn. Secondary Sch. Athletic Ass'n. 563 F.2d
th
793, 795 (6 Cir. 1977)
11:32:35 AM
MR. PHELPS presented the sectional analysis for SB 140 as
follows:
[Original punctuation provided.]
Section 1 Page 1, Lines 3 4
Adds subsection (d) to AS 14.18.040 stating the word
"sex" to mean biological sex.
Section 2 Page 1, Lines 5 15; Page 2, Lines 1 25
Amends AS 14.18 by adding Article 2. Designation of
Athletic Teams and Sports and the following
subsections:
Sec. 14.18.150. Page 1, Lines 7 14
(a) Students or teams from a public or private
school whose teams compete against a public
school must designate each school-sponsored
team or sport as follows:
(1) male, men or boys' team or sport
(2) female, women, or girls' team or sport;
or
(3) coeducational or mixed team or sport
(b) Any student who participates in an athletic
team or sport that is designated "female,
women, or girls" must be female, based on
the participant's biological sex.
Sec.14.18.160. Page 1, Line 15; Page 2 Lines 1 3
Protects schools and school districts from complaints,
investigations, or any adverse actions for complying
with AS 14.18.150.
Sec. 14.18.170. Page 2 Lines 4 19
Discusses liability and recourse for a student
deprived of an athletic opportunity or suffers direct
or indirect harm resulting from a violation of AS
14.18.150; or for a student who suffers retaliation
for reporting a violation of the aforementioned.
Discusses same liability and recourse for schools or
school districts that suffer direct or indirect harm
as a result of a violation of AS 14.18.150. Allows for
a two-year statute of limitations.
Sec. 14.18.180. Page 2 Lines 20 25
Defines "school" as an elementary, junior high,
secondary, or post-secondary school. Defines "school
district" as a borough school district, city school
district, regional educational attendance area, state
boarding school, and/or state centralized
correspondence study program.
11:35:18 AM
SENATOR HUGHES stated the next three presenters are national
experts familiar with legal issues, including Title IX.
11:36:31 AM
REPRESENTATIVE BARBARA EHARDT, Idaho State Legislature, Idaho
Falls, Idaho, stated Title IX passed when she was eight. It
changed her life because she played sports in school, in college
on scholarship, and had a Division One women's basketball
coaching career for 15 years at four universities. She has
testified in other states. It is gratifying to see legislation
similar to what she brought forward pass in other states because
it is an important matter. She opined that sports first begin
with competition and then winning; if this were not the case,
players would not get cut, and coaches would not get fired. To
say sport is about humanity, community, and inclusivity is a
false narrative. Competition is a key element that needs to be
protected in the sex-segregated opportunities that Title IX has
provided.
MS. EHARDT said that Idaho women runners were forced to compete
against June Eastwood. June competed as a male for three years
at the University of Montana before switching to the female team
as a senior. In 2020, June ran in the indoor track Big Sky
Championships. June annihilated the Idaho women, much like Lia
Thomas did in the sport of swimming. She theorized that if June
Eastwood and Lia Thomas had started competing as freshmen women,
coaches would have been forced to find a biological male to
compete against them, because coaches who do not win lose their
jobs. In the world of NCAA athletics repeating the actions of
others is a truism.
11:40:18 AM
MS. EHARDT noted that in 1995 Nike was incredibly supportive of
girls and women in an ad called "If You Let Us Play." It
documented benefits to girls that play sports, such as 60
percent less likely to get breast cancer, more likely to leave a
man that beats them, and less likely to get pregnant before they
want to. These are all things indicative of women and why
opportunities in women's sports must be protected.
She then pointed out that biological males and females each have
an opportunity to compete. However, what is happening is that
biological males can choose to compete in either, which gives
them two opportunities. The problem is not that men get two
opportunities, and women only get one. The problem is that men
get two opportunities, and the women's opportunity is taken
away, which is unfair. As a collegiate coach who holds camps,
clinics, and tournaments for kids, the difference in male and
female abilities starts before puberty. A second-grade girls'
team cannot successfully compete against a second-grade boys'
team, so she has the girls compete against the kindergarten
boys' team. It is not a matter of puberty; it is a matter of
whether a person has XX or XY chromosomes. This is inherently
important to who we are as men and women and should be
celebrated. She stated she could answer questions regarding
economic effects and reactions from the NCAA.
11:43:29 AM
MATT SHARP, Senior Counsel, Alliance Defending Freedom, Atlanta,
Georgia, said women deserve to compete on a level playing field.
Males competing in women's sports destroy fair competition and
women's athletic opportunities. His law firm represents female
athletes like Selena Soule of Connecticut, Madison Kenyon of
Idaho, and several others in lawsuits seeking to preserve
fairness in women's sports. He opined that it is unfortunate
that the number of women who have lost championships, records,
and athletic opportunities is increasing across the country. For
example, in Connecticut, two males captured 15 Women's
Championship titles, set 17 new records, and took over 80
opportunities to advance in competitions that rightfully
belonged to females. While everyone should be allowed to
participate in sports, biology matters when organizing sports.
When the reality of biological science is ignored, women pay the
price. SB 140 would ensure that all female athletes have an even
playing field to compete and win. It would set an eligibility
standard for female teams so that male-bodied athletes would not
take spots on Alaskan teams, and taxpayer-funded scholarships
would be awarded to female athletes who earned them. States,
including Montana, South Dakota, Idaho, Florida, Arkansas,
Mississippi, and Iowa, have passed laws like SB 140 to protect
fairness in K-12 and collegiate sports.
SB 140 is consistent with the Constitution and federal law.
Federal courts have long recognized that it is constitutional to
provide separate programs based on sex, including sports teams,
locker rooms, and even single-sex schools. For example, the
Supreme Court in the Virginia Military Institute (VMI) decision
said that women must be permitted to enroll in VMI. Justice
Ginsburg authored the main opinion for the court. She wrote that
once women were admitted to VMI, female students would
undoubtedly require separate physical standards because of the
"physiological differences between male and female individuals.
It is just for the same reason men and women undoubtedly require
separate physical competitions," in other words, athletics.
MR. SHARP said that the Ninth Circuit Court of Appeals, which
has jurisdiction over Alaska, upheld an Arizona policy several
years ago like SB 140, which noted that males are not eligible
to compete on female teams. The court concluded that
physiologically males would have an undue advantage competing
against females and substantially displace them if they were
allowed to compete for a position. The court further recognized
the importance of government in redressing past discrimination
against women in athletics and promoting equality of
opportunities between sexes as legitimate and vital. He stated
that SB 140 supports these precedents and other court decisions.
11:47:01 AM
MR. SHARP said attorney generals from 14 states, including
Alaska, filed a brief supporting the constitutionality of Idaho
women's sports legislation enacted in 2020, but that recently
the NCAA did not stand with female athletes. Therefore, this
body must urgently set a clear, fair, and scientifically based
policy to guide Alaska's schools and colleges in guaranteeing
equal opportunities for women to participate and win. Allowing
males on female teams means a girl loses a spot and the benefits
of participation. In an Inc.com survey of women business leaders
and CEOs, 94 percent said they participated in sports and
described their athletic experiences as vital to their
professional development. Girls in Alaska should have the same
athletic opportunities for experiences that will help them be
successful.
11:49:19 AM
JENNIFER BRACERAS, Director, Independent Women's Law Center,
Boston, Massachusetts read her testimony:
Competitive score is a zero-sum game, where some
athletes make the cut and others do not. Someone wins,
and others lose. In a zero-sum competition, the
inclusion of male-bodied athletes in women's sports
inevitably means that females lose out.
Almost 50 years ago, Title IX transformed sports by
guaranteeing women the right to equal athletic
opportunities. Congress enacted Title IX to end unjust
discrimination in education and to expand educational
opportunities for women and girls. Although the
statute originally made no mention of athletics, in
1974, Congress passed an amendment proposed by Senator
Jacob Javits of New York that directed the Department
of Health, Education, and Welfare to issue regulations
regarding athletics. Those regulations state that
schools and educational institutions may operate
single-sex athletic teams so long as they provide
equal athletic opportunity for members of both sexes.
Notice that the regulation says both sexes, meaning
two.
11:50:40 AM
MS. BRACERAS continued reading:
Title IX's binary conception of sex, under which
schools may operate separate teams for male and female
athletes, helped usher in a period of unprecedented
athletic opportunity and achievement for women and
girls, which you have already heard quite a bit about.
That progress today is at risk. It is at risk from
schools, athletic associations, and leagues that allow
transgender athletes who were born male to participate
in women's sports. But it is not simply about
transgender participation under women's sports. One
thing you have not heard about today is the way that
male participation in women's sports is happening
outside of the transgender context.
Across the United States, there are many schools that
operate field hockey or volleyball teams only for
women and do not offer those teams for men. It's
significant because many of these teams were initially
created by schools in the 1970s in order to comply
with Title IX, so they added field hockey and
volleyball for women in order to increase the number
of spots for female athletes. But sports like this are
today at risk in states like Massachusetts and other
areas across the country that require women's teams,
such as field hockey and volleyball, to roster male
players when the school does not offer a male team in
that particular sport. Last fall, Independent Women's
Forum and Independent Women's Law Center issued a
report called Competition: Title IX, Male Bodied
Athletes and the Threat to Women's Sports, and in that
report, we talk about this phenomenon. There's
actually a photo in the report of a female field
hockey player, who happens to be my daughter, playing
against male field hockey players in high school. My
daughter is now a Division One field hockey player.
She's now in college. But even a person of her
athletic ability who plays at a Division 1 level had
trouble going up against high school male athletes,
boys who play hockey, boys who play lacrosse, and just
thought, "Oh, well why don't I take on a Fall sport
and go out for field hockey." There was not just one
team her high school had to play against that had
[indiscernible]. There were at least three teams that
had multiple male field hockey players on a team.
11:53:27 AM
MS. BRACERAS continued reading:
Defenders of policies like these say that they're
necessary to promote fairness and inclusion, but what
these policies actually do is treat female athletes
unfairly and deny them equal opportunity to compete.
So not only did my daughter have to go up against male
field hockey players, but there were female field
hockey players at those other schools that didn't make
Varsity because a boy did.
As you've heard today, the average male is bigger,
stronger, and faster than the average female. Because
of this scientific fact, when male-bodied athletes
compete against women, women most often lose. But
Title IX not only protects our right to fair
competition, it protects our right to play at all.
Allowing biological men to compete as athletes on
women's teams with limited rosters means that there
are fewer spots on those teams for females, so women
get relegated to the JV team or don't make the team at
all. Perhaps if they do make the team, they get less
playing time when a man takes the field, or they may
receive less scholarship money. The fight to protect
women's sports is not simply about transgender
politics. It's about fairness and equal opportunity
for women to play competitive sports. And if the
federal government isn't going to protect Title IX and
stop discrimination against female athletes, then the
states must step up and prohibit the participation of
all male-bodied athletes in women's athletic
competitions.
11:55:34 AM
SENATOR HUGHES thanked the committee for its time and the
testifiers for presenting the dilemma facing women's sports and
the solution.
11:55:54 AM
SENATOR BEGICH stated he has been patient in listening to the
discussion from the experts and hopes for an opportunity to ask
questions regarding SB 140 because there is a different side to
the transgender women in sports argument. Recent case law
controverts the cases presented from 1977, 1992, and 1996. The
Idaho bill enjoined in 2020 by the Ninth Circuit Court is under
full panel review. The B.P.J v. West Virginia case was struck
down in West Virginia, and the current administration has
interpreted Bostock v. Clayton as protecting transgender rights.
He said that Legislative Legal Services had provided a legal
memorandum underscoring the unconstitutionality of SB 140 that
he would provide for discussion. He stated there is direct data
connecting legislation like SB 140 to suicide among transgender
youth that he would share since safety was brought up as a
concern.
CHAIR HOLLAND stated that the committee will spend significant
time on SB 140.
11:57:45 AM
SENATOR HUGHES requested that time be allotted in a future
hearing for expert testifiers to address the concerns that were
mentioned.
CHAIR HOLLAND replied that it would depend on the limited time
in the schedule and the availability of the testifiers.
CHAIR HOLLAND held SB 140 in committee.