Legislature(2021 - 2022)BUTROVICH 205
05/02/2022 09:00 AM Senate JUDICIARY
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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
9:09:33 AM
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. SB 140 was previously
heard on 4/29/2022.]
9:09:59 AM
SENATOR KIEHL asked for further discussion of the broad equal
protection issues SB 140 raises. The bill applies to transgender
girls and women but not transgender boys and men. He said this
strikes him as something the courts would consider suspect
classification. He wondered how that was constitutionally
defensible.
SENATOR HUGHES responded that Title IX is based on physiological
differences, so gender-specific sports fall under Title IX.
Further, every student athlete would have at least two options.
The person could participate on a team aligned with their
biological sex at birth or on a coed team. She highlighted that
students would not be banned from participating in sports.
9:12:53 AM
MATT SHARP, Senior Legal Counsel, State Government Relations
National Director, Alliance Defending Freedom, Atlanta, Georgia,
offered his view that the Alaska Supreme Court interpreted the
equal protection clause in the Alaska Constitution as more
robust than the federal equal protection clause. The two groups
being treated differently in SB 140 are biological males and
females. The findings supported by case law recognize the
physical differences between men and women, and those
differences matter on the playing field.
MR. SHARP related that the Ninth Circuit Court of Appeals upheld
an Arizona policy that men were not eligible to compete on
women's teams because of the physiological differences. Allowing
men to compete on women's teams would erase equality and
fairness of opportunity for women in sports. In its ruling, the
Ninth Circuit agreed to the preferential treatment which was
permissible because the state has an interest in ensuring equal
opportunities for females and to remedy past discrimination
where females have been denied opportunities to play in sports
on an equal basis. He opined that a similar analysis would apply
to SB 140 within the US Constitution and the Alaska Constitution
because it focuses on equal opportunities for men and women and
furthers the state's interest in doing so.
9:15:10 AM
SENATOR KIEHL pointed out that his analysis only points to two
classes. However, he was unsure a court would agree. The bill
speaks to gender as per birth certificates without addressing
chromosomal differences, intergender individuals, and those who
have undergone hormonal treatments for specified timeframes as
required by some interscholastic association eligibility
rules. He wondered whether that would create additional
considerations beyond the sex listed on a person's birth
certificate.
SENATOR HUGHES responded that the previous committee, the Senate
Education Committee, addressed medical intersex conditions at
birth [gender dysphoria based on a physical impairment]
recognized by the Americans with Disabilities Act (ADA). The
bill does not define gender identity but indicates that "sex"
means biological sex. She characterized this as an eligibility
requirement. Schools have other eligibility requirements, such
as requiring students to have a certain grade point average
(GPA) or to fall within a certain age bracket. When babies are
born, they are assigned as males or females, although the bill
contains allowances for intersex conditions based on chromosomal
differences.
9:17:33 AM
MR. SHARP agreed with Senator Hughes that sex has long been
recognized as binary. He acknowledged that some individuals are
born with an intersex condition, in which normal sex
characteristics did not develop in the womb, perhaps because of
a hormone issue. He said ADA protects intersex individuals. The
US Supreme Court in Bostock v. Clayton County recognized that
sex is biologically based, consisting of two sexes. All state
laws providing protections based on sex acknowledge that there
are two sexes, which builds on precedent and legal recognition.
Sometimes sex matters, such as when participating in sports, and
SB 140 seeks to protect equal opportunities and fairness for
women athletes.
9:18:43 AM
CHAIR HOLLAND invited Mr. Jacobus to testify.
9:18:59 AM
KENNETH JACOBUS, Attorney, Law Offices of Kenneth Jacobus,
Anchorage, Alaska, stated that he is a solo practitioner. He
said he agrees in essence with Mr. Sharp. He indicated that SB
140 was a bill only about protecting the right of women to
compete in athletic activities. He offered his view that it was
not an anti-transgender bill.
MR. JACOBUS related that he sent a letter to the Senate
Judiciary Committee [dated May 1, 2022) that outlined legal
issues. He briefly summarized the issues. The Alaska Courts have
not decided on the right to privacy, so it is difficult to
predict how the courts will rule on the right to privacy as it
applies to female sports.
MR. JACOBUS said he agrees with Mr. Sharp regarding equal
protection, that there is a distinction. He indicated his letter
discusses why the Bostock v. Clayton County case does not apply.
He stated that he does not see any constitutional infirmities
with the bill. He cautioned that the legislature should not be
deterred from passing SB 140 just because there might be
unanswered constitutional questions. The legislature must
determine what is in the best interest of the vast majority of
Alaskan girls and women who want to participate fairly and
compete in athletic endeavors.
9:21:19 AM
MR. JACOBUS highlighted that it might be necessary to identify
the athletic endeavors. He mentioned a Tennessee case filed last
November. A student was born a woman, changed to a male, and
wanted to compete in the male golf tournament but was not
allowed to do so. He suggested that the state consider amending
SB 140 by prohibiting girls from participating on boys' teams.
It might be necessary to make some distinctions about the type
of sport involved, such as wrestling, football, or
weightlifting. He spoke in support of SB 140.
9:23:13 AM
CHAIR HOLLAND referred to page 3 of Mr. Jacobus's letter [dated
May 1, 2022] that mentioned two students, one with Turner's
syndrome and another who looked masculine. Both students were
female. Since Turner's syndrome affects only females and someone
who looks masculine by inference must be biologically female.
Thus, neither student would be affected by the bill.
9:24:06 AM
SENATOR KIEHL referred to Alaskans right to privacy Mr. Jacobus
discussed in his letter. He agreed that the Alaska courts had
not ruled directly on the right to privacy and transgenders. He
said he is intrigued at his de minimis infringement on the right
to privacy. Although he didn't recall the exact quote, the
Alaska Supreme Court had argued that there is nothing more
personal than one's body when applying a citizen's
constitutional right to privacy.
SENATOR KIEHL wondered how a citizen's right to privacy would be
applied if the bill were to pass. He related a scenario where a
transgender young woman birth certificate indicated "male,
that the person had transitioned and undergone health care
treatments to conform to female gender identity, and their body
bore the marks associated with females. If that person moved to
Alaska and wanted to compete in sports, they must play on a
men's team based on their birth certificate. He asked Mr.
Jacobus to speak to his de minimis infringement on privacy
analysis, because it was difficult for him to see how it would
apply.
MR. JACOBUS responded that other laws protect medical
information. He acknowledged that transgender participation in
sports had become a political issue, not just a legal one. He
stated that some believe it is important to protect girls, but
others are interested in protecting transgender rights. He said
he was unsure whether the Alaska Supreme Court would decide to
protect transgenders or the majority of girls who must
participate equally in sports activities.
9:27:12 AM
SENATOR HUGHES explained that the federal Family Educational
Rights and Privacy Act is similar to the Health Insurance
Portability and Accountability Act of 1996 (HIPPA) because an
individual's information must be kept confidential. She surmised
that if the school district denied a transgender girl from
participating on a female team, an observer might surmise what
sex was listed on the birth certificate even though the school
could not reveal that information. The transgender student
identifying as a female would have other options, such as
playing on a men's team, and that team might also have other
girls participating. Thus, she did not believe requiring a birth
certificate would breach a person's right to privacy.
CHAIR HOLLAND invited Mr. Bird to respond.
9:29:12 AM
MARIO BIRD, Attorney, Law Office of Mario L. Bird, Anchorage,
Alaska, responded to Senator Kiehl's earlier question on whether
the right to privacy allows for a de minimis infringement. He
said he was unsure whether that language appears in Alaska case
law. He stated that case law related to art. 1, sec. 22 of the
Alaska Constitution does not provide an absolute guarantee of
the right to privacy. He read quotes from several cases from the
annotated statutes.
No one has an absolute right to do things in the
privacy of his own home, which will affect himself or
others adversely
Ravin v. State
It is part of the judicial function to ensure that
governmental infringements of this right are supported
by sufficient justification
Falcon v. Alaska Public Offices Commission
In expressing the rights to free speech and privacy,
the framers of the state constitution have recognized
a right of universal freedom and the right to be left
alone which is rooted in the natural inclination of
human beings of these rights and a free society such
as this have never been recognized as absolute and
without limitations.
Messerli v. State
9:30:49 AM
MR. BIRD offered his view that there was clear precedent that
privacy is not an unlimited right. He stated that the function
of the judiciary was to decide that balance. Still, the
legislature has the authority to implement laws that define the
right to privacy, which is what this bill does.
9:31:23 AM
MR. BIRD recalled Mr. Sharp mentioned that federal law
corroborates the binary nature of human sexuality. Alaska
Statutes already address this. AS 14.18.040(a) reads, "(a) Equal
opportunity for both sexes in athletics and in recreation shall
be provided in a manner that is commensurate with the general
interests of the members of each sex." He noted that the
language "both" and "each" presupposes male and female, which
appears later in the statutes. He stated that [Plass ph.] v.
State struck down legislation that was only directed at the
female body. Again, it was tethered not only to the actual
conditions of human life but to the male body and the female
body. He highlighted that those are the same distinctions SB 140
draws.
9:32:48 AM
SENATOR KIEHL said Mr. Bird read several Alaska Supreme Court
statements interpreting the Alaska Constitution on the right to
be left alone and the strengths of Alaskans rights to privacy
and equal protection. He asked whether there was a close and
substantial relationship between the approach SB 140 takes and
the problem it purports. The committee previously discussed
people who compete as women whose birth certificates indicate
female, yet they have extremely high natural testosterone
levels. He noted some international organizations do not allow
them to compete on women's teams. The committee also discussed
transgender women who have undergone gender-conforming health
care.
SENATOR KIEHL stated that the sponsor included studies that
spoke to average differences; however, the issue relates to the
rights of individuals. He suggested that the likelihood was low
that the courts would take average-based impingement on all
transgender women's rights in high school and college sports and
say that it is closely and substantially tailored to the issue
at hand. He wondered if other mechanisms could be used to deal
with the theoretical competitive advantage.
9:34:54 AM
SENATOR HUGHES agreed that she had highlighted averages between
males and females. However, other research details testosterone
suppression over multiple years that still showed substantial
differences. She noted she had referred to that in one of the
slides in the condensed presentation. She stated there was still
a 9 percent difference in speed or strength.
SENATOR KIEHL asked for the age of patients in the study.
CHAIR HOLLAND suggested that while he searched for the answer,
Mr. Sharp could comment.
9:36:30 AM
MR. SHARP said he was unsure whether anything in the bill would
require the public disclosure of private information. Currently,
under the Alaska School Activities Association (ASAA) rules,
students must disclose considerable personal information to
determine their eligibility for sports. Every student must
submit their sports physical exam results and medical history.
Although this information is confidential and protected by
HIPAA, students must submit it to the school for eligibility
determinations. Students must also provide other personal
information, including submitting grades, their weight if
participating in some sports such as wrestling, and any
disciplinary information. This law would rely on the student
birth certificate to identify their sex. He offered his belief
this additional requirement would not violate the right to
privacy.
MR. SHARP highlighted that the question was not whether an elite
female athlete could compete with an average male but how a
comparably fit and trained female could compete with a
comparably fit and trained male. Despite her world and Olympic
track standing, thousands of men and about 200 high school boys
could beat Allyson Felix's record. This data supports sex-based
classifications and the need for separate categories for men and
women because men will always have a competitive advantage when
comparing comparably fit and trained male and female athletes.
9:40:06 AM
SENATOR HUGHES pointed out that Lia Thomas had met the National
Collegiate Athletic Association (NCAA) guideline and had
undergone testosterone treatment for a minimum of one year.
9:40:33 AM
DANIEL PHELPS, Staff, Senator Shelley Hughes, Alaska State
Legislature, Juneau, Alaska, on behalf of the sponsor,
identified the study that Senator Hughes referred to earlier as
the Hilton-Lundberg study [Transgender Women in the Female
Category of Sport: Perspectives on Testosterone Suppression and
Performance Advantage.] The study found a performance gap of 10
to 50 percent, depending on the sport, from male to female
bodies. After 12 months of testosterone suppression, transgender
women experienced a 5 percent reduction in their comparative
advantage based on their muscle density, strength, endurance,
and muscle mass. Thus, it resulted in a 10 to 50 percent
advantage and only a 5 percent reduction. He added that this
study related to youth ages 9 to 17.
9:41:47 AM
SENATOR KIEHL asked the record to reflect that not every school
district requires a birth certificate or requests a student's
biological sex. He recalled several comments about federal
courts recognizing binary and biological basis for sex under
Title IX. He agreed that was the case at one time. He asked
whether any of the presenters could direct him to recent federal
cases requiring the consideration of gender identity and
transgender athletes under Title IX.
9:43:13 AM
MR. BIRD deferred to Mr. Sharp.
9:43:24 AM
SENATOR HUGHES referred to the US Supreme Court decision in
Bostock v. Clayton County, related to Title VII [of the Civil
Rights Act of 1964] employment issues for gay and transgender
individuals [decided on June 15, 2020.] She read a portion of
the decision.
What are these consequences anyway? The employers
worry that our decision will sweep beyond Title VII to
other federal or state laws that prohibit sex
discrimination. And, under Title VII itself, they say
sex-segregated bathrooms, locker rooms, and dress
codes will prove unsustainable after our decision
today. But none of these other laws are before us; we
have not had the benefit of adversarial testing about
the meaning of their terms, and we do not prejudge any
such question today.
9:44:14 AM
MR. SHARP stated Senator Hughes' quote from the Bostock v.
Clayton County decision is precisely on point. He referred to
another portion of the majority decision, which read "...
referring only to biological distinctions between male and
female." He stated that the US Supreme Court was working on an
understanding of what sex means in federal law and the US
Constitution.
9:44:55 AM
SENATOR KIEHL said if there were no federal district or circuit
court cases that upheld the underlying arguments in the bill, he
was interested in other federal guidance. He asked how the US
Department of Education interpreted Title IX regarding
transgender athletes.
9:45:38 AM
MR. SHARP responded that the US Department of Education has
historically understood that Title IX and its prohibition on sex
discrimination works exactly like SB 140. Although the agency
recognizes that sex is biologically based, it is still
permissible to have separate programs for men and women.
MR. SHARP related that in May 2013, the Obama administration
issued a "Dear Colleague" letter saying it was now interpreting
sex under Title IX to mean "gender identity." Since then, the
federal agencies have interpreted the definition differently,
depending on the administration. However, the federal courts
will ultimately be the final decision-makers. He opined that the
Bostock ruling cut through the agency interpretations and
indicated that "sex" refers to the biological distinction
between males and females. The US Supreme Court ruled that women
could enroll in the Virginia Military Institute. However, it
recognized differences in the standards due to the differences
in males and females, which are permissible under federal law.
9:48:19 AM
SENATOR HUGHES referred to Alaska's Department of Education and
Early Development website, stating that birth certificates are
required for enrollment in Alaska's public schools.
CHAIR HOLLAND solicited further discussion on SB 140.
9:48:47 AM
At ease
9:49:53 AM
CHAIR HOLLAND reconvened the meeting.
9:50:12 AM
SENATOR HUGHES moved to adopt Amendment 1, work order 32-
LS0911\B.1.
32-LS0911\B.1
Marx
4/28/22
AMENDMENT 1
OFFERED IN THE SENATE
TO: CSSB 140(EDC)
Page 3, lines 17 - 18:
Delete "secondary, or postsecondary"
Insert "or secondary"
9:50:17 AM
CHAIR HOLLAND objected for discussion purposes.
9:50:17 AM
MR. PHELPS stated that Amendment 1 would remove or
postsecondary" and insert "or" before "secondary".
9:50:46 AM
SENATOR HUGHES stated the intent was to include postsecondary in
this policy, but after speaking with UAA President Pat Pitney,
she decided that the timing wasn't right. She emphasized that
Ms. Pitney supports the concept, but the university currently
was considering other things.
CHAIR HOLLAND summarized that Amendment 1 would remove
postsecondary schools from the bill.
SENATOR HUGHES agreed.
9:52:46 AM
CHAIR HOLLAND removed his objection; he found no further
objection, and Amendment 1 was adopted.
9:53:15 AM
SENATOR HUGHES moved to adopt Conceptual Amendment 1.
9:53:33 AM
CHAIR HOLLAND objected for discussion purposes.
SENATOR HUGHES stated Conceptual Amendment 1 would delete lines
5-6 on page 2. She explained the intent was to accomplish
removing postsecondary schools from SB 140.
9:54:06 AM
SENATOR KIEHL wondered what effect removing the definition of
"sex" on lines 5-6 on page 2 would have on who could compete.
SENATOR HUGHES responded that removing the definition would not
affect the overall bill, just Section 2, AS 14.18.040. She
deferred to Mr. Phelps.
MR. PHELPS explained that AS 14.18.040. Discrimination and
Recreational Athletic Activities currently addresses the
university and defines . Thus, removing it would only
affect the university, but not [the remaining language in
Article 2] beginning with AS 14.18.150.
9:55:43 AM
SENATOR KIEHL asked what problem deleting the definition of
"sex" would fix.
MR. PHELPS answered that Sec. 14.18.040 references the Board of
Regents and establishes procedures that the board shall adopt,
so Conceptual Amendment 1 would remove the reference.
9:56:24 AM
SENATOR HUGHES stated that this would essentially remove the
practice by the university to require students to have a birth
certificate.
9:56:53 AM
CHAIR HOLLAND removed his objection to Conceptual Amendment 1;
he heard no further objection, and Conceptual Amendment 1 was
adopted.
CHAIR HOLLAND noted that Legislative Legal Services was
authorized to make technical and conforming changes to comport
with the committee's intent.
9:57:32 AM
SENATOR HUGHES said establishing this policy now will preserve
Title IX for young women. She said she is not aware of any
current issues with student-athletes in the state. She remarked
that she heard from several transgender women who support the
bill, but they asked to remain anonymous. The Women's Liberation
Front, a feminist organization, supports SB 140. She
characterized SB 140 as a nonpartisan bill. She stated that each
student would have at least two options to compete.
10:00:07 AM
SENATOR MYERS moved to report the committee substitute (CS) for
SB 140, work order 32-LS0911\B, as amended, from committee with
individual recommendations and attached fiscal note(s).
10:00:26 AM
SENATOR KIEHL objected.
SENATOR KIEHL characterized SB 140 as a bill seeking a problem
to solve. As the sponsor mentioned, Alaska does not have any
cases involving transgender athletes. He offered his view that
the bill runs afoul of Alaska's Constitution. It would require
students to disclose personal information in ways that are not
comparable to a student receiving a clean bill of health on
their physical or making good grades. He said he did not find
that level of breadth when it would force a transgender girl to
reveal de facto their sex listed on a birth certificate. He
stated that the right to privacy is lethal constitutionally, and
the equal protection issues are too significant to overcome. The
bill is based on a line on a person's birth certificate, which
does not have anything to do with physicality or levels of
hormones that may give the person physical advantages. The
jurisprudence runs opposite to what is constitutional and
permissible under federal law.
10:02:37 AM
SENATOR KIEHL maintained his objection.
10:02:48 AM
A roll call vote was taken. Senators Myers, Hughes, and Holland
voted in favor of the motion to report SB 140, Version B, from
committee, and Senator Kiehl voted against it. Therefore, CSSB
140(JUD) was reported from the Senate Judiciary Standing
Committee on a 3:1 vote.
CHAIR HOLLAND stated that on a vote of 3 yeas and 1 nay, CSSB
140(JUD) was reported from the Senate Judiciary Standing
Committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 140 SJUD Amendment B.1.pdf |
SJUD 5/2/2022 9:00:00 AM |
SB 140 |
| SB 140 Research Gallup Poll.pdf |
SJUD 5/2/2022 9:00:00 AM |
SB 140 |
| SB 140 Research GLAAD Poll.pdf |
SJUD 5/2/2022 9:00:00 AM |
SB 140 |
| SB 140 Testimony - Law Offices of Kenneth Jacobus.pdf |
SJUD 5/2/2022 9:00:00 AM |
SB 140 |
| SB 140 Testimony - Alliance Defending Freedom.pdf |
SJUD 5/2/2022 9:00:00 AM |
SB 140 |
| SB 140 Supporting Document - Kenneth Jacobus Resume.pdf |
SJUD 5/2/2022 9:00:00 AM |
SB 140 |