Legislature(2021 - 2022)BUTROVICH 205
04/29/2022 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB140 | |
| SB196 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 196 | TELECONFERENCED | |
| += | HB 246 | TELECONFERENCED | |
| += | SB 124 | TELECONFERENCED | |
| + | SB 140 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 140-DESIGNATE SEX FOR SCHOOL-SPONSORED SPORTS
1:34:12 PM
CHAIR HOLLAND announced the consideration of SENATE BILL NO. 140
"An Act relating to school athletics, recreation, athletic
teams, and sports."
[CSSB 140(EDC) was before the committee.]
1:34:28 PM
SENATOR HUGHES, speaking as sponsor, paraphrased the sponsor
statement for SB 140.
[Original punctuation provided.]
1:34:51 PM
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.
When I was a teenager, the only option for a female to
be connected to a public-school athletic program was
to be a cheerleader, and the cheerleading squads were
small (5-10) at each high school. As of 2022, the
number of female athletes in the U.S. has increased by
over 900 percent to more than 3.5 million women and
girls thanks to the passage of Title IX.
SENATOR HUGHES remarked that playing basketball was not an
option when she was a teenager, but her daughter played varsity
basketball due to Title IX.
1:35:32 PM
This year, as we celebrate Title IX's 50 the
anniversary, women and girls stand, once more, at risk
of losing an even playing field in sports. An ever-
increasing trend of males and transgender women who
were born male playing 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 advantages of
transgender women.
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."
The goal of SB140 is not to preclude transgender
athletes from competition or equal access to sports
and athletic programs in schools. Rather, thanks to
Title IX, transgender athletes are protected from
discrimination in sports and promised equal access to
athletic programs.
1:36:12 PM
The goal of SB140 to ensure discrimination against
girls and women does not occur - that they are treated
fairly and not disadvantaged in athletic programs
compared to male-bodied athletes. Undeniable evidence
and scientific research conclude that the average
biological male body is stronger, larger, and faster
than the average female body even after testosterone
suppression treatment. This is particularly true 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
intensely for years. Male-bodied athletes have a
substantial physical advantage over female athletes in
sports, regardless of the beliefs that the male-bodied
athlete may hold about their sexuality or gender
identity.
For decades, biological sex-specific separations in
athletics have preserved competition while allowing
women the chance to win. 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. SB140
stands for an equal opportunity for all.
The bill would require public schools to designate
their athletic teams male, female, or co-ed and a
student who participates in an athletic team
designated female to be female based on her biological
sex. Private schools competing against public schools
would also be required to comply with these rules.
1:36:17 PM
SENATOR HUGHES added that SB 140 creates an even playing field
in women's sports by creating an eligibility requirement that
members on a school athletic or sports-designated female, women,
or girls be biologically female based on the athlete's
biological sex at birth.
SENATOR HUGHES stated that scientific research concludes that
the average biological male body is stronger, larger, and faster
than the average female body even after testosterone suppression
treatment. This is particularly true in high school athletics.
Many male track and field athletes consistently beat the times
of the very best female Olympians who have trained intensely for
years.
SENATOR HUGHES highlighted that this topic has come to the
forefront of public debate online and in the news. Transwomen
dominate in various women's sports nationwide at the high school
and college levels. For example, 16 members of the University of
Pennsylvania swim team authored a joint letter to their school
regarding their teammate, Lia Thomas, a transwoman.
1:37:40 PM
SENATOR HUGHES read a quote from the letter about Lia Thomas:
We fully support Lia Thomas in her decision to affirm
her gender identity and to transition from a man to a
woman. Lia 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 #462 as a male to
#1 as a female.
Lia's inclusion with unfair biological advantages
means that we have lost competitive opportunities.
Some of us have lost records.
1:38:16 PM
SENATOR HUGHES stated that this was the concern addressed by SB
140.
SENATOR HUGHES said she is not opposed to transgenders or is
full of hatred as some have stated because she values everyone.
She offered her view that transgender athletes like Lia Thomas
deserve the opportunity to compete and win fairly. However, it
must not come at the cost of excluding otherwise qualified
biological females from the only category of sport in which they
can hope to succeed. SB 140 is neutral regarding gender identity
and does not factor in an individual's choices about their
sexuality or eligibility to play school sports. It offers every
athlete an equal opportunity to compete on at least two teams: a
coed team and a team that aligns with their biological sex at
birth. The spirit of SB 140 is rooted in Title IX and seeks to
establish protections for women and girls so they will not be
robbed of future opportunities. This bill has received hundreds
of hours of work from national experts and attorneys familiar
with Title IX and relevant case law. She noted the binding Ninth
Circuit [Court of Appeals] precedent in Clark v. Arizona, in
which the court upheld the right for six separate athletic teams
and prohibited boys from playing on the girls' volleyball team.
1:39:31 PM
SENATOR HUGHES related that the previous committee spent roughly
seven and one-half hours analyzing the bill, four of which were
to take public testimony. The committee spent the remaining time
reviewing constitutional matters in two subsequent hearings. Six
amendments were adopted to tighten the bill and remove any doubt
that SB 140 infringes on constitutional rights.
1:40:35 PM
At ease
1:41:32 PM
CHAIR HOLLAND reconvened the meeting.
1:41:43 PM
DANIEL PHELPS, Staff, Senator Shelley Hughes, Alaska State
Legislature, Juneau, Alaska, stated the reasoning for SB 140.
First, women across the state and country had asked for
protection for their athletic programs. Second, science and
research indicate an indisputable athletic advantage in male
bodies compared to female bodies. Third, United States laws,
particularly Title IX, prohibit discrimination based on sex in
education programs, including sports. US courts have
consistently recognized and established a precedent for the
physiological differences between men and women, which merits
sex-based separation in athletics.
1:42:28 PM
MR. PHELPS co-presented a PowerPoint on the Even Playing Field
Act, slide 1, INPUT FROM ATHLETES.
1:42:33 PM
CHAIR HUGHES read quotes on a series of slides in the
PowerPoint, which read:
"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]
"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, Hawaii]
"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 SMIH, Danbury, CT]
"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]
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]
SENATOR HUGHES encouraged members to read the slides
because those who made the statements were incredible
female athletes. She offered to post the PowerPoint to
BASIS.
1:43:57 PM
MR. PHELPS turned to THE SCIENCE portion beginning on slide 15.
He reviewed slide 16, THE BRITISH MEDICINE JOURNAL.
Objective: to examine the effect of gender-affirming
hormones on athletic performance among transwomen and
transmen.
Findings: The 15-31% athletic advantage for transwomen
pre-therapy.
9% faster mean run speed in transwomen after the 1
year period of testosterone suppression that is
recommended by World Athletics for inclusion in
women's events.
1:44:19 PM
MR. PHELPS reviewed slide 17, THE HILTON LUNDBERG STUDY.
Objective: Review how difference in biological
characteristics between biological males and females
affect sporting performance and assess whether
evidence exists to support the assumption that
testosterone suppression in transgender women removes
the male performance advantage and thus delivers fair
and safe competition.
Findings: The performance gap between males and
females becomes significant at puberty.
10-50% depending on the sport
Strength, lean body mass, muscle size, and bone
density are only trivially affected by testosterone
suppression
MR. PHELPS reviewed slide 19, DUKE LAW.
Objective: Comparing athletic performances between the
best elite women to boys and men
Findings: Female bodied athletes are not competitive
for the win against males. The lowest end of the male
range is three times higher than the highest end of
the female range.
MR. PHELPS referred to slide 20, which consisted of a table
illustrating that boys and men outperform women.
1:45:00 PM
MR. PHELPS turned to the portion of the PowerPoint entitled,
ACCORDING TO THE COURTS. He reviewed slide 22.
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
581 U.S. 515, 533 (1996).
MR. PHELPS reviewed slide 23, which read:
"Because of innate physiological differences, boys and
girls are not similarly situated as they enter
athletic competition."
Kleczek v. Rhode Island Interscholastic League, Inc.
612A.2d 734, 738 (R.I. 1992)
MR. PHELPS reviewed slide 24, which read:
"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.
th
563 F.2d 793, 795 (6 Cir. 1977)
1:45:59 PM
CHAIR HOLLAND asked whether the PowerPoint was already posted to
BASIS since it was presented to the Senate Education Committee.
SENATOR HUGHES said this PowerPoint presentation was condensed.
1:46:51 PM
TREG TAYLOR, Attorney General, Department of Law, Anchorage,
Alaska, stated that he had reviewed the correspondence from
Legislative Legal counsel and previous testimony. He opined that
there was no facial constitutional infirmity with SB 140
pertaining to the Alaska Constitution, US Constitution, Alaska
law, or federal law. He noted that Legislative Legal memo [from
Marie Marx, Legislative Counsel, dated March 2, 2022] used
language including may, might, or could, but the arguments and
analysis lacked certainty. He acknowledged that arguments could
be made, which was common in any challenges to statutory
provisions.
1:48:20 PM
SENATOR KIEHL noted that the sponsor referred to older federal
court cases. He asked whether the federal courts had
distinguished any cases related to transgender individuals in
recent years.
ATTORNEY GENERAL TAYLOR said he was unsure which cases he was
alluding to, perhaps Karnoski [v. Trump] but in the most recent
case, the Supreme Court made it clear that Bostock v. Clayton
County only related to Title VII [of the Civil Rights Act of
1964] employment issues for gay and transgender individuals.
That case determined that an employer could not discriminate or
terminate a person solely based on their gender identity or
sexual orientation. He offered his view that an effort has been
made nationwide to make the Title VII court decision apply to
all gender issues. However, the federal courts have not yet
weighed in on those issues.
1:49:37 PM
SENATOR KIEHL noted that the US Supreme Court analysis in
Bostock limited the application to employment. Still, the
court's analysis of the questions concluded that discrimination
based on sexual orientation or gender identity involves sex as a
but-for cause. He asked how he saw Alaska or other courts
distinguishing the language the sponsor read from Title IX. He
noted that language refers to discrimination based on sex, which
is identical to language analyzed by the Supreme Court in
Bostock.
ATTORNEY GENERAL TAYLOR responded that Title IX would
potentially be found unconstitutional under the Legislative
Legal Counsel's analysis. He offered his view that when the
Legislative Legal attorney did not find arguments about the
right to privacy, they went on to equal protection issues. He
stated that it's easy to see why there's not an equal protection
issue related to the state's interest, which was adequately
pointed out in the introduction of the bill. He acknowledged
that arguments could be made; however, it's up to the courts to
decide. He maintained there clearly were no constitutional
issues with the bill.
CHAIR HOLLAND turned to invited testimony.
1:52:08 PM
MARIO BIRD, Attorney, Law Office of Mario L. Bird, Anchorage,
Alaska, as invited testifier, spoke in support of SB 140. He
offered to address the legality of SB 140 as it applied to the
Alaska Constitution, including issues related to equal
protection, and the right to privacy in art. I, sec. 22 and
civil rights provision in art. 1, sec. 3 of the Alaska
Constitution.
1:52:56 PM
MR. BIRD referred to Justice Ginsburg's opinion in US v.
Virginia, related to the Virginia Military Institute (VMI) case,
in which young women sued based on VMI's admission policy. In
that case, Justice Ginsburg wrote the opinion of the court
stating, "Physical differences between men and women, however,
are enduring: "[T]he two sexes are not fungible; a community
made up exclusively of one [sex] is.
MR. BIRD stated that opinion, along with Justice Ginsburg's
legal work while she was at the US Equal Employment Opportunity
Commission (EEOC), provides the basis for distinguishing between
biological males and biological females. He said that is the
basis for SB 140.
1:53:24 PM
MR. BIRD said the existing statute, AS 14.18.050 (b) makes a
distinction between males and females. He read:
(b)Separation of the sexes is permitted during sex
education programs and during participation in
physical education activities if the purpose of the
activity involves bodily contact.
MR. BIRD explained that this statute was based on the
differences between biological female and biological male
bodies. He noted that there had been an extensive discussion of
federal law, which he would avoid since it is not his area of
expertise. However, he related his understanding that previous
committees discussed the federal register, Title 34, CFR 106.41,
which Attorney General Taylor alluded to under Title IX. He
agreed by using some of the analysis by Legislative Legal that
even Title IX would be unconstitutional and would defy equal
protection. He offered his view that the Legislative Legal
analysis that tried to "knock down" all of Title IX was flawed.
1:54:49 PM
MR. BIRD pointed out that Alaska has some exemplars on both
sides of this issue. In the late 2000s, Michaela Hutchison was
the first female to compete and win a state wrestling
championship. Another female, Hope Steffensen, did the same
thing later. He said he played against Hannah Carlson and Kerry
Weiland, who both had stellar careers in hockey. He stated that
young women in Alaska have excelled in smaller schools and have
gone on to have national careers.
MR. BIRD contrasted that with Nattaphon Wangyot, a biological
male who competed as a female and won third and fifth place at
the 2016 Alaska State Track Championships. He noted that the
Alaska Association of School Boards indicated it had not seen
any evidence that female sports have been affected by
transgender athletes, which is not true. This issue was brought
forth because a biological male competed in women's sports.
1:56:16 PM
MR. BIRD summarized his testimony saying that he did not see
equal protection issues under Alaska's case law or the equal
protection clause striking down SB 140. Second, regarding the
right to privacy, the Alaska School Activities Association
(ASAA) rules were predicated on things like a medical exam,
student course load, transfer requirements, grade point average
(GPA), age, and other eligibility considerations. He said all of
these are preexisting privacy issues, but people typically do
not sue based on their right to privacy. Schools don't disclose
information, such as a person failing a grade, but the student
would be ineligible to participate in sports.
MR. BIRD referred to art. I, sec. III of the Alaska
Constitution, pertaining to civil rights, which read, "No person
is to be denied the enjoyment of any civil or political right
because of race, color, creed, sex, or national origin." He said
he did not find any reference to this provision in Legislative
Legal briefs. He suggested perhaps case law establishes that the
Alaska Supreme Court will allow separate accommodations
dependent on sex. He recalled a criminal case relating to
prostitution, which the court struck down because it was
strictly female. Any distinctions as to gender must rest upon
some logical justification having a basis on the actual
conditions of human life. He offered his view that SB 140 puts
that front and center. Scientific data confirms a difference
between biological females and biological males regarding
athletic performance. He related it was a 1979 case, but even if
it were to be used, SB 140 would pass muster.
1:59:22 PM
MR. BIRD said the district courts in Alaska allowed judges to
require certain business attire, but it differentiates between
sexes. The Supreme Court found no merit in the contention that a
coat and tie requirement amounts to impermissible gender
discrimination because it applies to males and not to females.
He emphasized that the case law that exists indicates that this
is permissible.
MR. BIRD pointed out that the constitutional right to privacy
and the civil rights provision in the Alaska Constitution
specifically state, "The legislature shall implement this
section." It is the legislature's job to implement the meaning
by passing legislation, ensuring that the law meets
constitutional muster. He offered his belief that that has
already happened once by adopting the committee substitute (CS)
for SB 140, Version B. He reiterated that he views SB 140 as
having met constitutional muster under Alaska case law and the
Alaska Constitution. He recommended that members pass the bill
from committee.
2:01:02 PM
SENATOR KIEHL clarified that no attorneys serve on the Senate
Judiciary Committee. He stated that he had cited Justice
Ginsburg on the VMI case. He was somewhat confused because it
was a portion of her reasoning in a ruling that struck down
VMI's attempts to discriminate based on sex and segregation. He
asked for his rationale.
MR. BIRD related his understanding that while it did strike down
the discrimination portion, it maintained that VMI should
provide separate facilities for biological females. He offered
his view that is the reason the language about the differences
between men and women are enduring appears. He stated that VMI
provided separate barracks and locker rooms.
2:02:50 PM
SENATOR KIEHL asked whether it was ever acceptable to
discriminate within the boundaries of a single biological sex.
He noted runners, including Semenya, [a South African intersex
biological female gold medalist], and Masilingi and Mboma,
[Namibian sprinters with a natural high testosterone levels] as
examples. He offered his view that the definition of biological
sex was tied in.
MR. BIRD responded that he was unfamiliar with the runners. He
indicated that a whole area of law in the American Disabilities
Act covers biological sex, for example, Casey [Martin] sued the
PGA Tour in order to play golf. In terms of whether it was
appropriate to set off one competitor from another, he suggested
it happens every day between junior varsity (JV) and varsity
players. Players must meet certain eligibility requirement to
compete at local, regional, or state.
MR. BIRD stated that the bill was clear about what constitutes
biological sex, but he thought Version B was an improvement from
the original version.
2:05:34 PM
SENATOR KIEHL pointed out that the term biological sex is
undefined in the bill. He wondered whether the definition
included testosterone levels and chromosomes or if biological
sex is based on what is on the birth certificate.
MR. BIRD responded that it would depend on the physicals
required of athletes before they can compete under the ASAA
rules. He stated that this bill puts forward the requirement of
using the biological sex per the person's birth certificate.
SENATOR KIEHL said it was helpful to know the bill's definition
had nothing to do with physical characteristics.
2:06:57 PM
SENATOR KIEHL asked about liability provisions. The bill would
create rights of action, but none of the tort caps appear to
apply. He asked what remedies and liabilities the bill would
create.
2:07:24 PM
SENATOR HUGHES stated that an amendment was added in Version B
to make it clear nothing prohibits due process, so that an
individual could file legal action. One stated goal is to
protect school districts and schools from expensive, repeated
cases, but the person could still file a lawsuit.
SENATOR KIEHL wondered what remedies a court might order if a
student alleged that they did not get the full scholarship
because of noncompliance. He asked whether the court could order
the full cost of attending an Ivy League school.
SENATOR HUGHES stated she could not speculate on future court
rulings.
2:09:40 PM
SENATOR KIEHL stated that the new Sec. 14.18.170 in Section 3 of
the bill speaks to direct and indirect harm. Since this would
not be subject to Alaska's other court caps, he wondered if the
sponsor envisioned pain and suffering damages or punitive
damages.
SENATOR HUGHES answered that it would be on a case-by-case
basis. She stated that she could not predict a scenario and why
a person might file a lawsuit. She explained that several more
attorneys plan to testify at a future hearing who may have a
better response.
2:10:48 PM
MR. PHELPS stated that amendments to the bill take a step back
from prescribing what the courts should do; instead, it is left
to the courts to determine their rightful role.
2:11:18 PM
SENATOR KIEHL stated that the bill prohibits some entities from
suing [under the new Section 14.18.160 in Section 3.] He asked
for the separation of powers for those who may not take adverse
action against a school or school district for complying. He
said that provision raises some constitutional concerns for him.
SENATOR HUGHES referred to page 3, to Sec. 14.18.180, and read.
(a) 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.
SENATOR HUGHES asked him to point out how the bill would
restrict who could take legal action.
2:12:12 PM
SENATOR KIEHL referred to page 2, lines [21]-23, Sec. 14.18.160.
(a) A governmental entity, licensing or accrediting
organization, athletic association, or school district
may not take adverse action against a school or school
district for complying with AS 14.18.150.
SENATOR KIEHL asked what was envisioned in subsection (a) if not
legal action.
SENATOR HUGHES responded that Sec. 14.18.160 does not refer to
adverse action through the courts. She explained that if one
school district felt like another district their athletes
competed with was not complying with the requirements to have
male, female or coed athletic teams, they couldn't use that
provision to prevent the school from competing in a tournament.
Thus, this provision refers to adverse action taken outside of
the courts. The Legislative Legal attorney indicated that Sec.
14.18.180, related to access to courts, provides sufficient
clarification.
2:13:35 PM
CHAIR HOLLAND recalled that the previous committee amended the
bill to clarify adverse action.
SENATOR KIEHL asked how many districts have coed varsity or
inter-school level teams.
2:14:20 PM
SENATOR HUGHES offered to do research and report to the
committee. She related her understanding that it was reasonably
common in the smaller schools. She said if the bill were to
pass, nothing would prevent a school from expanding coed
opportunities.
2:14:41 PM
SENATOR KIEHL related his understanding that the bill was
gender-neutral because coed teams were an option. He thought it
would be helpful to determine gender neutrality using factual
analysis.
2:15:46 PM
SENATOR SHOWER noted some female athletes could compete against
men and do well, but statistically, a female who does well in a
male-dominated sport is a rare exception. However, a male
competing against females typically rises to the top due to
biological differences. He added that he held records in two
different sports. He predicted that his records would have held
in each category if he had competed as a girl. Thus, he cannot
support biological males competing with biological females.
2:17:30 PM
SENATOR HUGHES mentioned Serena and Venus Williams and
highlighted that a biological male who ranked 203rd was able to
beat both. Florence Griffith Joyner still holds the 100 and 200-
meter sprint records. A man who was ranked 5,006 beat her
record. Typically, the differences at the Olympic level between
biological females are within a second. Lydia Jacoby won the
Olympic 100-meter breaststroke, whereas her counterpart Adam
Petey swam 7.5 seconds faster. She expressed concern that girls
would not have a level playing field and a chance for victory if
this was not addressed.
2:19:20 PM
SENATOR KIEHL answered that Senator Hughes did not use examples
of transgender athletes who had been through hormonal therapies
that are required at the elite levels in order to compete as
women. He pointed out that one of his constituents underwent
some of those therapies and was allowed to compete under AASA
rules. His constituent did not crush it or dominate the sport.
He asked why the International Olympic Committee protocols for
addressing transgender athletes was insufficient for Alaska.
SENATOR HUGHES stated that the data shows that even after
multiple years of testosterone suppression therapy, there are
still significant differences. One study shows a 9 percent
difference. She said the size of the skeleton matters and the
amount of leverage. Although some muscle mass decreases with
hormone suppression, it is still greater than a biological
female.
2:21:37 PM
CHAIR HOLLAND held SB 140 in committee.