Legislature(2021 - 2022)BUTROVICH 205

04/29/2022 01:30 PM Senate JUDICIARY

Note: the audio and video recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.

Download Mp3. <- Right click and save file as

* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved CSSB 196(JUD) Out of Committee
-- Public Testimony --
<Bill Hearing Canceled>
-- Public Testimony --
<Bill Hearing Canceled>
-- Public Testimony --
Heard & Held
Uniform Rule 23 Waived
+ Bills Previously Heard/Scheduled TELECONFERENCED
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                         April 29, 2022                                                                                         
                           1:33 p.m.                                                                                            
MEMBERS PRESENT                                                                                                               
Senator Roger Holland, Chair                                                                                                    
Senator Mike Shower, Vice Chair                                                                                                 
Senator Shelley Hughes                                                                                                          
Senator Robert Myers                                                                                                            
Senator Jesse Kiehl                                                                                                             
MEMBERS ABSENT                                                                                                                
All members present                                                                                                             
COMMITTEE CALENDAR                                                                                                            
SENATE BILL NO. 140                                                                                                             
"An  Act  relating  to  school  athletics,  recreation,  athletic                                                               
teams, and sports."                                                                                                             
     - HEARD & HELD                                                                                                             
SENATE BILL NO. 196                                                                                                             
"An Act relating  to transparency and compelled  speech in public                                                               
     - MOVED CSSB 196(JUD) OUT OF COMMITTEE                                                                                     
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 246(FIN)                                                                                
"An   Act  restricting   the  release   of  certain   records  of                                                               
convictions;  relating  to   misconduct  involving  marijuana  by                                                               
persons 18, 19,  or 20 years of age; amending  Rule 17(h), Alaska                                                               
Rules of Minor Offense Procedure;  and providing for an effective                                                               
     - BILL HEARING CANCELED                                                                                                    
SENATE BILL NO. 124                                                                                                             
"An   Act  restricting   the  release   of  certain   records  of                                                               
convictions;  relating  to   misconduct  involving  marijuana  by                                                               
persons 18, 19,  or 20 years of age; amending  Rule 17(h), Alaska                                                               
Rules of Minor Offense Procedure; and providing for an effective                                                                
     - BILL HEARING CANCELED                                                                                                    
PREVIOUS COMMITTEE ACTION                                                                                                     
BILL: SB 140                                                                                                                  
SHORT TITLE: DESIGNATE SEX FOR SCHOOL-SPONSORED SPORTS                                                                          
SPONSOR(s): SENATOR(s) HUGHES                                                                                                   
05/12/21       (S)       READ THE FIRST TIME - REFERRALS                                                                        
05/12/21       (S)       EDC                                                                                                    
03/03/22       (S)       EDC AT 10:00 AM BUTROVICH 205                                                                          
03/03/22       (S)       Heard & Held                                                                                           
03/03/22       (S)       MINUTE(EDC)                                                                                            
03/12/22       (S)       EDC AT 10:00 AM BUTROVICH 205                                                                          
03/12/22       (S)       Heard & Held                                                                                           
03/12/22       (S)       MINUTE(EDC)                                                                                            
04/06/22       (S)       EDC AT 9:00 AM BUTROVICH 205                                                                           
04/06/22       (S)       Moved CSSB 140(EDC) Out of Committee                                                                   
04/06/22       (S)       MINUTE(EDC)                                                                                            
04/08/22       (S)       EDC RPT CS  4DP  SAME TITLE                                                                            
04/08/22       (S)       DP: HOLLAND, HUGHES, STEVENS, MICCICHE                                                                 
04/25/22       (S)       JUD REFERRAL ADDED AFTER EDC                                                                           
04/27/22       (S)       JUD WAIVED PUBLIC HEARING NOTICE,RULE                                                                  
04/29/22       (S)       JUD AT 1:30 PM BUTROVICH 205                                                                           
BILL: SB 196                                                                                                                  
SHORT TITLE: PUBLIC ED: SPEECH, DISCLOSE INST MATERIAL                                                                          
SPONSOR(s): SENATOR(s) REINBOLD                                                                                                 
02/15/22       (S)       READ THE FIRST TIME - REFERRALS                                                                        
02/15/22       (S)       EDC, JUD                                                                                               
03/25/22       (S)       EDC AT 9:00 AM BUTROVICH 205                                                                           
03/25/22       (S)       Heard & Held                                                                                           
03/25/22       (S)       MINUTE(EDC)                                                                                            
04/04/22       (S)       EDC AT 9:00 AM BUTROVICH 205                                                                           
04/04/22       (S)       Heard & Held                                                                                           
04/04/22       (S)       MINUTE(EDC)                                                                                            
04/13/22       (S)       EDC AT 9:00 AM BUTROVICH 205                                                                           
04/13/22       (S)       -- MEETING CANCELED --                                                                                 
04/20/22       (S)       EDC AT 9:00 AM BUTROVICH 205                                                                           
04/20/22       (S)       Moved CSSB 196(EDC) Out of Committee                                                                   
04/20/22       (S)       MINUTE(EDC)                                                                                            
04/22/22       (S)       EDC RPT CS  1DP 1NR 2AM  SAME TITLE                                                                    
04/22/22       (S)       DP: HOLLAND                                                                                            
04/22/22       (S)       NR: STEVENS                                                                                            
04/22/22       (S)       AM: HUGHES, MICCICHE                                                                                   
04/25/22       (S)       JUD AT 1:30 PM BUTROVICH 205                                                                           
04/25/22       (S)       Heard & Held                                                                                           
04/25/22       (S)       MINUTE(JUD)                                                                                            
04/29/22       (S)       JUD AT 1:30 PM BUTROVICH 205                                                                           
WITNESS REGISTER                                                                                                              
DANIEL PHELPS, Staff                                                                                                            
Senator Shelley Hughes                                                                                                          
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Co-presented a PowerPoint, Input from                                                                     
Athletes, and presented the sectional analysis for SB 140.                                                                      
TREG TAYLOR, Attorney General                                                                                                   
Department of Law                                                                                                               
Anchorage, Alaska                                                                                                               
POSITION STATEMENT: Testified on legal issues during the hearing                                                              
on SB 140.                                                                                                                      
MARIO BIRD, Attorney                                                                                                            
Law Office of Mario L. Bird                                                                                                     
Anchorage, Alaska                                                                                                               
POSITION STATEMENT: Provided invited testimony in support of SB
LYNDA GIGUERE, representing self                                                                                                
Juneau Alaska                                                                                                                   
POSITION STATEMENT: Testified in opposition to SB 196.                                                                        
PHILLIP MOSER, representing self                                                                                                
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Testified in opposition to SB 196.                                                                        
DAVID BOYLE, representing self                                                                                                  
Anchorage, Alaska                                                                                                               
POSITION STATEMENT: Testified in support of SB 196.                                                                           
JESSIE ALLOWAY, Solicitor General                                                                                               
Statewide Section Supervisor                                                                                                    
Opinions, Appeals, and Ethics                                                                                                   
Civil Division                                                                                                                  
Department of Law                                                                                                               
Anchorage, Alaska                                                                                                               
POSITION STATEMENT: Testified on legal issues of SB 196.                                                                      
ED KING, Staff                                                                                                                  
Senator Roger Holland                                                                                                           
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Explained  amendments to SB 196  on behalf of                                                             
the committee.                                                                                                                  
SENATOR LORA REINBOLD                                                                                                           
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Sponsor of SB 196.                                                                                        
ACTION NARRATIVE                                                                                                              
1:33:32 PM                                                                                                                    
CHAIR  ROGER   HOLLAND  called  the  Senate   Judiciary  Standing                                                             
Committee meeting  to order at 1:33  p.m. Present at the  call to                                                               
order  were  Senators Myers,  Hughes,  Shower,  Kiehl, and  Chair                                                               
        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                                                                    
     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                                                                    
     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                                                               
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
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                                                                    
                 [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                                                                    
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                                                                    
     Findings: The 15-31%  athletic advantage for transwomen                                                                    
     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                                                                    
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.                                                                          
                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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
2:21:37 PM                                                                                                                    
CHAIR HOLLAND held SB 140 in committee.                                                                                         
2:21:51 PM                                                                                                                    
At ease                                                                                                                         
        SB 196-PUBLIC ED: SPEECH, DISCLOSE INST MATERIAL                                                                    
2:23:06 PM                                                                                                                    
CHAIR   HOLLAND  reconvened   the  meeting   and  announced   the                                                               
consideration  of  SENATE  BILL  NO.  196  "An  Act  relating  to                                                               
transparency and compelled speech in public education."                                                                         
CHAIR  HOLLAND noted  that this  was the  second hearing  in this                                                               
committee and the intention was to hear public testimony.                                                                       
2:23:30 PM                                                                                                                    
CHAIR HOLLAND opened public testimony on SB 196.                                                                                
2:24:11 PM                                                                                                                    
LYNDA GIGUERE,  representing self, Juneau Alaska,  stated that SB
196  does  not solve  problems  or  make  the lives  of  Alaskans                                                               
better. Instead, it  could make the teacher's  job untenable. She                                                               
viewed  SB 196  as  a  distraction from  real  issues, and  anti-                                                               
education. It seeks  to divide an already  fractured country. She                                                               
offered her view  that its ultimate goal was to  instill fear and                                                               
distress  in teachers,  all just  to  rally the  base. She  urged                                                               
members not to pass SB 196.                                                                                                     
2:26:42 PM                                                                                                                    
PHILLIP  MOSER,  representing  self,  Juneau,  Alaska,  spoke  in                                                               
opposition to  SB 196. He  was unsure  whether there was  a moral                                                               
argument that  had not already  been made for the  obscene nature                                                               
of this  bill. He  viewed SB 196  as incredibly  problematic. The                                                               
bill  seeks to  punish people  for  speech in  the classroom.  He                                                               
characterized  it as  similar  to  the "don't  say  gay bill"  in                                                               
Florida.  This bill  would deputize  regular  citizens to  punish                                                               
teachers, and it would create a clear pathway to do so.                                                                         
MR. MOSER said  this means teachers who are  already underpaid in                                                               
Alaska would  be subject to  litigation from anyone at  any point                                                               
for  something as  small as  a  gay teacher  making reference  to                                                               
their husband. A parent could bring  a civil suit, which could be                                                               
costly for the teacher. He  characterized it as a chilling effect                                                               
on teachers  and schools.  This bill  could involve  the attorney                                                               
general in numerous lawsuits.                                                                                                   
MR. MOSER noted  the issue of teachers and  schools being subject                                                               
to  litigation  under the  bill  appears  intended to  erase  any                                                               
mention of race,  sex, or orientation from  schools. He expressed                                                               
concern that people  who fall under those categories  would be at                                                               
risk should this bill pass.                                                                                                     
2:29:03 PM                                                                                                                    
MR.  MOSER  said  he  testified   several  days  ago  on  a  bill                                                               
introduced  by   Senator  Reinbold   that  would   require  every                                                               
political  officer  to  read  the  Alaska  Constitution  and  the                                                               
Declaration of  Independence. He offered  his view that  it would                                                               
be  illegal  for  teachers  to   mention  that  bill  since  they                                                               
inherently list  issues based on  sex and race. He  asked members                                                               
not  to support  SB  196  because it  was  morally and  ethically                                                               
2:30:37 PM                                                                                                                    
DAVID  BOYLE,  representing  self, Anchorage,  Alaska,  spoke  in                                                               
support of SB  196 to help prevent students from  being taught to                                                               
hate one another  based on race. He stated that  students need to                                                               
be able to read. He stated  that he attended previous hearings on                                                               
the  bill.  Those who  oppose  the  bill expressed  concern  that                                                               
students  will  not  be taught  about  certain  events.  Alaska's                                                               
students  can still  learn  how the  United  States evolved  over                                                               
time. He recited a number  of historical references to events and                                                               
listed a number of prominent  historical figures who owned slaves                                                               
to  illustrate his  point. He  stated  that America  is the  best                                                               
place to live and raise kids.                                                                                                   
2:34:06 PM                                                                                                                    
MR. BOYLE paraphrased  a portion of the new  business item number                                                               
39 from NEA.                                                                                                                    
     B.  Provide an  already-created,  in-depth, study  that                                                                    
     critiques  empire,   white  supremacy,  anti-Blackness,                                                                    
     anti-Indigeneity,          racism,          patriarchy,                                                                    
     cisheteropatriarchy,        capitalism,        ableism,                                                                    
     anthropocentrism,   and  other   forms  of   power  and                                                                    
     oppression  at the  intersections of  our society,  and                                                                    
     that  we oppose  attempts to  ban critical  race theory                                                                    
     and/or The 1619 Project.                                                                                                   
MR. BOYLE urged members to move SB 196 from committee.                                                                          
2:35:24 PM                                                                                                                    
JESSIE ALLOWAY, Solicitor  General, Statewide Section Supervisor,                                                               
Opinions,  Appeals, and  Ethics,  Civil  Division, Department  of                                                               
Law, Anchorage, Alaska, explained  that the enforcement provision                                                               
would give the attorney general  express authority to enforce the                                                               
law.  It also  grants  the attorney  general  authority to  issue                                                               
advisory  opinions  requested  by the  school  district,  charter                                                               
school, or public school.                                                                                                       
2:35:58 PM                                                                                                                    
MS. ALLOWAY stated that the authority  to bring a civil action is                                                               
not   necessarily  an   expansion  of   the  attorney   general's                                                               
authority. The  Alaska Supreme Court  has held that  the attorney                                                               
general has  common law powers,  except where limited  by statute                                                               
or conferred  on some other  state agency. Under the  common law,                                                               
the  attorney general  has the  power  to bring  any action  they                                                               
think is necessary to protect  the public interest. This includes                                                               
the power  to enforce  an Alaska  Statute. However,  the attorney                                                               
general  exercises that  authority very  rarely, in  part due  to                                                               
resources but also  because that authority is used  on matters of                                                               
significant  public interest.  At the  previous hearing,  Senator                                                               
Myers asked  if the attorney  general had this authority  and, if                                                               
so, if  it was used  regularly. She reiterated that  the attorney                                                               
general has the authority but rarely uses it.                                                                                   
2:37:18 PM                                                                                                                    
MS. ALLOWAY stated that the  provision to issue advisory opinions                                                               
would be  an expansion  of the  attorney general's  authority and                                                               
would  likely require  a significant  amount of  the department's                                                               
resources.  She  acknowledged  that the  appellate  section  does                                                               
issue  advisory  opinions.  Those  opinions can  be  through  the                                                               
government  or  other state  agencies  and  the legislature.  She                                                               
stated those were  infrequent, but it takes  a significant amount                                                               
of  work to  issue them.  The other  provisions that  require the                                                               
attorney  general  to  issue  advisory  opinions  include  ballot                                                               
initiatives  and  the  Ethics  Act. The  Ethics  Act  allows  the                                                               
attorney general  to issue advisory opinions  for state employees                                                               
and former state  employees who may have  questions about whether                                                               
they can  perform certain work  once they leave  state employment                                                               
or  enter  private  practice or  employment.  Those  require  the                                                               
attorney general  to act  within 60  days on  completed requests.                                                               
Thus,  there   would  be   some  back   and  forth.   This  would                                                               
significantly increase  the areas  in which the  attorney general                                                               
would issue advisory opinions.                                                                                                  
2:38:53 PM                                                                                                                    
CHAIR  HOLLAND  moved  to  adopt  Amendment  1,  work  order  32-                                                               
                          AMENDMENT 1                                                                                       
    OFFERED IN THE SENATE                BY SENATOR HOLLAND                                                                     
     TO:  CSSB 196(EDC)                                                                                                         
     Page 1, line 9, through page 2, line 22:                                                                                   
          Delete all material and insert:                                                                                       
        "* Sec. 2. AS 14.18.080(b) is amended to read:                                                                      
          (b)  The Board of Regents shall adopt rules under                                                                     
     AS 14.40.170(b)(1)   to    implement   AS 14.18.010   -                                                                
     14.18.110 [THIS CHAPTER].                                                                                              
        * Sec. 3. AS 14.18.100(b) is amended to read:                                                                         
          (b)  A person aggrieved by a violation of                                                                             
     AS 14.18.010  -  14.18.110  [THIS   CHAPTER]  or  of  a                                                                
     regulation  or procedure  adopted under  AS 14.18.010 -                                                                
     14.18.110 [THIS CHAPTER]  as to postsecondary education                                                                
     has an  independent right of  action in  superior court                                                                    
     for civil damages and for  such equitable relief as the                                                                    
     court may determine."                                                                                                      
     Renumber the following bill sections accordingly.                                                                          
     Page 5, following line 24:                                                                                                 
     Insert a new subsection to read:                                                                                           
          "(c)  In this section,                                                                                                
               (1)  "school district" means a borough                                                                           
     school  district, a  city school  district, a  regional                                                                    
     educational attendance  area, a state  boarding school,                                                                    
     and   the   state  centralized   correspondence   study                                                                    
               (2)  "state agency" means a department,                                                                          
     office,   agency,  state   board,  commission,   public                                                                    
     corporation,  or   other  organizational  unit   of  or                                                                    
     created   under   the   executive   branch   of   state                                                                    
     Page 5, line 25, through page 6, line 6:                                                                                   
          Delete all material.                                                                                                  
     Page 6, lines 7 - 15:                                                                                                      
          Delete all material and insert:                                                                                       
          "Sec. 14.18.190. Definitions. In AS 14.18.150 -                                                                     
     14.18.190,  "public   school"  does  not   include  the                                                                    
     University   of   Alaska   or   another   postsecondary                                                                    
2:39:11 PM                                                                                                                    
SENATOR HUGHES objected for discussion purposes.                                                                                
2:39:23 PM                                                                                                                    
ED KING, Staff, Senator Roger  Holland, Alaska State Legislature,                                                               
Juneau, Alaska,  explained that Amendment  1 would  maintain that                                                               
the implementation  and enforcement  remedy sections  in existing                                                               
law  that  cover the  rest  of  AS 18  would  extend  to the  new                                                               
provisions added by SB 196.                                                                                                     
MR. KING  stated that the existing  language in AS 18  is treated                                                               
differently. The enforcement  is by the State  Board of Education                                                               
for  K-12 and  by  the Board  of Regents  for  the University  of                                                               
Alaska.  The bill  proposes  that  the new  law  has a  different                                                               
enforcement  mechanism  through  the attorney  general's  office.                                                               
Amendment  1  would  remove  the  provision  to  go  through  the                                                               
attorney  general's   office  and  maintains  that   all  of  the                                                               
enforcement  actions  for K-12  would  go  through the  Board  of                                                               
MR. KING  said that Sections 2,  3, and 4 were  deleted. However,                                                               
components of  those sections were  reinstituted that  bind those                                                               
two provisions  because the  new provisions do  not apply  to the                                                               
university. Thus, the provisions related  to the Board of Regents                                                               
do not include the university.                                                                                                  
2:41:02 PM                                                                                                                    
SENATOR  HUGHES asked  whether  anything  would prohibit  someone                                                               
from taking an independent action though the courts.                                                                            
MR. KING answered  no. The enforcement by the  Board of Education                                                               
would  exist  throughout  the  chapter,  including  the  existing                                                               
language. The  remedy provision in  AS 14.18.100 would  apply. He                                                               
     (a) A person aggrieved by a violation of this chapter                                                                      
          or  of a  regulation  or  procedure adopted  under                                                                    
          this chapter as to  primary or secondary education                                                                    
          may file  a complaint  with the  board and  has an                                                                    
          independent right of action  in superior court for                                                                    
          civil  damages and  for such  equitable relief  as                                                                    
          the court may determine.                                                                                              
2:42:20 PM                                                                                                                    
CHAIR HOLLAND closed public testimony on SB 196.                                                                                
2:42:26 PM                                                                                                                    
SENATOR  KIEHL related  his understanding  that a  private person                                                               
has  a right  of  action. He  asked whether  they  would need  to                                                               
exhaust the  remedy through the  Board of Education  before going                                                               
to court or if either option was available.                                                                                     
MR. KING responded  that nothing in the bill  changes the process                                                               
in existing law regarding filing  a lawsuit. If that avenue needs                                                               
to be exhausted  before court action is available  to the person,                                                               
nothing  in  the bill  would  change  that  if the  amendment  is                                                               
2:43:25 PM                                                                                                                    
MS.  ALLOWAY responded  that in  this particular  instance, where                                                               
the  statute  is  granting  a  private right  of  action  for  an                                                               
individual,  the person  would  not necessarily  need to  exhaust                                                               
their administrative remedy. She said  she would need to research                                                               
this further before providing a definitive answer.                                                                              
CHAIR HOLLAND  referred to a  fiscal note from the  Department of                                                               
Law.  He asked  whether Amendment  1 would  make the  fiscal note                                                               
MS. ALLOWAY responded yes, because  it would remove the necessity                                                               
for  additional  resources  that  would be  required  to  provide                                                               
advisory opinions.                                                                                                              
2:44:31 PM                                                                                                                    
SENATOR  KIEHL  asked  whether  it would  be  more  efficient  to                                                               
require that these  complaints go through the  Board of Education                                                               
before a lawsuit  can be filed. He expressed  concern about legal                                                               
costs to school districts.                                                                                                      
CHAIR  HOLLAND deferred  to Ms.  Alloway to  discuss whether  the                                                               
state could restrict someone access to the courts.                                                                              
2:45:23 PM                                                                                                                    
MS.  ALLOWAY responded  that there  were  provisions in  statutes                                                               
that require  a party to  exhaust their  administrative remedies.                                                               
The reason for  that is to allow, in this  case, the school board                                                               
to fix  its own  errors prior to  litigation. She  explained that                                                               
there would  not be  any legal  issue if  a provision  within the                                                               
statutes  required   a  party   to  exhaust   the  administrative                                                               
remedies. They  would go through  the administrative  process and                                                               
once  that process  was completed,  it could  be appealed  to the                                                               
superior court.                                                                                                                 
2:46:10 PM                                                                                                                    
SENATOR KIEHL suggested amending the bill to save legal costs.                                                                  
CHAIR HOLLAND indicated that he  would not pursue an amendment at                                                               
this time.                                                                                                                      
2:46:36 PM                                                                                                                    
SENATOR HUGHES removed her objection.                                                                                           
2:46:40 PM                                                                                                                    
CHAIR HOLLAND  heard no  further objection,  and Amendment  1 was                                                               
2:46:57 PM                                                                                                                    
CHAIR  HOLLAND  moved  to  adopt  Amendment  2,  work  order  32-                                                               
                          AMENDMENT 2                                                                                       
    OFFERED IN THE SENATE                BY SENATOR HOLLAND                                                                     
     TO:  CSSB 196(EDC)                                                                                                         
     Page 4, lines 25 - 27:                                                                                                     
          Delete all material.                                                                                                  
     Reletter the following subparagraphs accordingly.                                                                          
2:46:59 PM                                                                                                                    
SENATOR HUGHES objected for discussion purposes.                                                                                
2:47:11 PM                                                                                                                    
MR. KING explained  that Amendment 2 was a  clean-up amendment to                                                               
remove duplicate  language that  resulted from an  amendment that                                                               
passed  in  the  previous  committee  of  referral.  He  directed                                                               
attention  to  the language  on  page  4,  lines 25-27  that  was                                                               
significantly similar to  the language on lines  28-30. He stated                                                               
that  subparagraph (B)  would  not  allow a  person  to compel  a                                                               
student  to believe  those concepts  described in  paragraph (2),                                                               
whereas  subparagraph   (A)  provides  an   unbound  restriction.                                                               
Amendment   2   would   remove  subparagraph   (A)   and   retain                                                               
subparagraph (B).                                                                                                               
CHAIR HOLLAND noted it would  also require renumbering subsequent                                                               
MR. KING agreed.                                                                                                                
CHAIR HOLLAND characterized Amendment 2 as a clean-up amendment.                                                                
2:48:20 PM                                                                                                                    
SENATOR  HUGHES noted  that subparagraph  (A)  included the  word                                                               
 encourage"  and  subparagraph (B)  did  not.  She asked  whether                                                               
Amendment 2  would allow encouragement  and if that  language was                                                               
too gray.                                                                                                                       
2:49:04 PM                                                                                                                    
CHAIR  HOLLAND stated  that it  would not  disallow teachers  and                                                               
other personnel from encouraging  students. He said the committee                                                               
could  make  a conceptual  amendment  to  add "encourage"  before                                                               
"direct" in subparagraph (B) if so desired.                                                                                     
2:49:28 PM                                                                                                                    
SENATOR MYERS offered  his view that using "encourage"  was a bit                                                               
of an  issue because subparagraphs (A)  and (B) speak to  what [a                                                               
teacher,  administrator,   or  other  employee]  could   not  do.                                                               
However, the  language on  page 5,  lines 15-18,  indicates staff                                                               
could  not  prohibit voluntary  participation  in  a training,  a                                                               
seminar,  continuing education,  an orientation,  or therapy.  He                                                               
offered his  view that to  have staff  direct or compel  would be                                                               
problematic  but  to  encourage  implies  that  the  student  was                                                               
already considering participating. He  said it seems confusing to                                                               
prohibit  a voluntary  action in  one provision  but allow  it in                                                               
another.   He   suggested   that  removing   "encourage"   seemed                                                               
2:50:57 PM                                                                                                                    
CHAIR HOLLAND agreed  that direct or compel was  more active than                                                               
2:51:07 PM                                                                                                                    
MR. KING stated  that the reference in paragraph (2)  [on page 4,                                                               
line 4]  uses direct  or otherwise  compel, but  it does  not use                                                               
encourage, so for  consistency, which is likely  why the language                                                               
does not occur  in paragraph (3)(B), which read,  "...adhere to a                                                               
belief or concept described in (2) of this subsection ....                                                                      
CHAIR HOLLAND asked him to restate the explanation.                                                                             
MR. KING referred to paragraph (2)  that read, "may not direct or                                                               
otherwise  compel  a student...."  He  reiterated  that the  word                                                               
"encourage"  is  not  in  the  reference, so  it  would  be  more                                                               
consistent to not use it in subparagraph (B).                                                                                   
2:51:49 PM                                                                                                                    
At ease                                                                                                                         
2:52:08 PM                                                                                                                    
CHAIR HOLLAND  reconvened the  meeting and  asked him  to restate                                                               
the explanation one more time.                                                                                                  
2:52:19 PM                                                                                                                    
MR. KING responded  that the language in the  bill was consistent                                                               
between  the  issue being  discussed  and  the statute  that  was                                                               
referenced. Thus, a change to  the statute being referenced would                                                               
require a change to the other statute.                                                                                          
SENATOR  HUGHES  expressed  concern  that  students  might  sense                                                               
teachers were encouraging  them to participate in order  to be in                                                               
their good graces or get better  grades. She suggested that if SB
196 became law  and teachers could not direct  or compel students                                                               
to participate, that if a problem arose, it could be addressed.                                                                 
2:53:41 PM                                                                                                                    
SENATOR HUGHES removed her objection.                                                                                           
2:53:45 PM                                                                                                                    
CHAIR HOLLAND  heard no  further objection,  and Amendment  2 was                                                               
2:54:20 PM                                                                                                                    
SENATOR LORA REINBOLD, Alaska  State Legislature, Juneau, Alaska,                                                               
via teleconference, as sponsor of  SB 196, stated that she agreed                                                               
with  the amendments.  She highlighted  that it  was critical  to                                                               
have transparency in education.                                                                                                 
2:54:56 PM                                                                                                                    
SENATOR  KIEHL  noted the  committee  discussed  verbs. He  asked                                                               
whether  this bill  would stop  a school  district from  teaching                                                               
these  concepts so  long  as  they don't  test  students or  make                                                               
students state that they believe the concepts.                                                                                  
2:55:29 PM                                                                                                                    
SENATOR REINBOLD  responded that  the bill was  carefully worded.                                                               
She  stated  that it  would  not  allow  teachers to  teach  that                                                               
someone was  inherently one  way or another  based on  their skin                                                               
color. She stated  that the state shouldn't  fund teaching people                                                               
to hate one another based on the  color of their skin or that the                                                               
country is inherently sexist or  racist. She stated that the bill                                                               
clearly identifies the  things that public funding  should not be                                                               
used to teach.  She offered her belief that about  13 states have                                                               
similar legislation.  She noted  that Senator Hughes  amended the                                                               
bill in a previous committee, so she may have something to add.                                                                 
2:57:05 PM                                                                                                                    
SENATOR HUGHES stated  that nothing in the bill  would prohibit a                                                               
teacher from  discussing race or discrimination.  They just can                                                                 
direct students to  take a specific position.  She indicated that                                                               
she  consulted Legislative  Legal  on whether  to add  clarifying                                                               
language to  assure that  teachers could  teach history,  such as                                                               
Martin Luther King or the Holocaust,  and was assured that it was                                                               
not necessary to do so.                                                                                                         
2:58:14 PM                                                                                                                    
MR. KING directed  attention to page 5, line  12, subsection (b),                                                               
that  outlines  the types  of  things  not prohibited,  including                                                               
speech protected  by the Constitution  of the State of  Alaska or                                                               
the  Constitution  of  the United  States,  including  voluntary,                                                               
uninduced,  and   uncoerced  attendance  or   participation,  and                                                               
educational in-school  discussion of,  or assignment  of material                                                               
that incorporates  the concepts so  long as the  school clarifies                                                               
that it  does not  sponsor, approve, or  endorse the  concepts or                                                               
2:59:25 PM                                                                                                                    
SENATOR KIEHL offered  his belief that the  bill had irredeemable                                                               
problems.  It would  create a  bizarre situation  where a  school                                                               
could  teach American  history, warts  and all,  but it  couldn't                                                               
test  students on  the material  because students  would need  to                                                               
affirm that  the concepts  were true. The  bill is  explicit that                                                               
teachers cannot require  students to do so.  He expressed concern                                                               
that  the effect  would be  to remove  parts of  American history                                                               
from the schools, which was problematic.                                                                                        
SENATOR KIEHL  recalled when he  attended high school  in Alaska,                                                               
students  engaged in  discussions on  a wide  variety of  topics,                                                               
facts, and bad  behavior in history. It was an  important part of                                                               
the  educational  process.  This  bill  wrenches  any  effect  of                                                               
teaching that in an effort to cancel those ideas.                                                                               
SENATOR KIEHL  noted the bill  had bizarre gaps. He  wondered why                                                               
the  bill cancels  some ideas  but not  others. The  bill doesn't                                                               
mention  ableism.  He  stated  that   in  the  last  hearing  the                                                               
committee  discussed  that  the bill  doesn't  cover  oppression,                                                               
inferiority,  or  superiority  based  on  class,  such  as  caste                                                               
systems or  the communist  theories of class.  He was  unsure why                                                               
the bill would cancel some  things considered un-American but not                                                               
others.  He  highlighted that  the  bill  had numerous  undefined                                                               
terms. He characterized the bill as one of cancel culture.                                                                      
SENATOR  KIEHL   acknowledged  that  the  legislature   does  not                                                               
consider a  bill's cost  to school  districts because  they don't                                                               
issue  fiscal   notes  since  school  districts   are  not  state                                                               
agencies. However,  school districts are  political subdivisions.                                                               
He expressed concern  about the cost of  monitoring the curricula                                                               
and lesson plans for every teacher.                                                                                             
3:03:23 PM                                                                                                                    
CHAIR  HOLLAND  disagreed that  the  bill  would prevent  testing                                                               
because it uses  the language  affirm.  He offered  his view that                                                               
what Senator Kiehl described was  not the definition of  affirm.                                                                
He asked how  the bill would require school  districts to monitor                                                               
every  classroom  when  the  bill   asks  teachers  to  post  the                                                               
SENATOR KIEHL responded that he  was speaking to the potential of                                                               
costly lawsuits  to the school  districts if it does  not include                                                               
the curricula, which would consist  of lesson plans. Thus, school                                                               
districts  must  monitor  what teachers  teach  or  risk  private                                                               
CHAIR HOLLAND offered to discuss this at a later date.                                                                          
3:04:56 PM                                                                                                                    
SENATOR KIEHL stated that Section  6 requires transparency, which                                                               
is  subject to  lawsuits. He  indicated that  the Association  of                                                               
School Boards  anticipated that  mid-size school  districts would                                                               
need a fulltime  position to comply with provisions  in the bill.                                                               
He  stated  that cost  would  be  an administrative  cost,  using                                                               
resources  that would  not educate  students. He  stated that  he                                                               
would   oppose   the   bill    because   some   provisions   were                                                               
unconstitutional, that  some topics would be  canceled and others                                                               
would  not, and  a lot  of American  history would  be "scrubbed"                                                               
from the classroom.                                                                                                             
3:05:47 PM                                                                                                                    
SENATOR  HUGHES offered  her view  that  SB 196  would not  scrub                                                               
history or stop classroom discussions  about concepts or beliefs,                                                               
but  it would  disallow teachers  from forcing  students to  take                                                               
certain  positions on  those concepts  or beliefs.  She suggested                                                               
that amendments could be made to  bridge any gaps, such as adding                                                               
class. She  offered her  view that some  things are  happening in                                                               
the classroom that  should be addressed, and  she appreciated Mr.                                                               
Boyle reading  the NEA  resolution. She  noted that  parents have                                                               
concerns, and it is important  for students to be open-minded and                                                               
develop critical thinking skills.                                                                                               
3:07:18 PM                                                                                                                    
SENATOR HUGHES moved to report  the committee substitute (CS) for                                                               
SB 196, work  order 32-LS0768\D, as amended,  from committee with                                                               
individual recommendations and attached fiscal note(s).                                                                         
3:07:41 PM                                                                                                                    
SENATOR KIEHL objected.                                                                                                         
A roll call  vote was taken. Senators Myers,  Hughes, and Holland                                                               
voted in favor of reporting  the committee substitute (CS) for SB
196  from   committee  and  Senator   Kiehl  voted   against  it.                                                               
Therefore, CSSB  196(JUD) was  reported from  committee on  a 3:1                                                               
CHAIR  HOLLAND stated  that the  motion to  report CSSB  196(JUD)                                                               
from committee passed on a vote of 3 yeas and 1 nay.                                                                            
3:08:16 PM                                                                                                                    
There being  no further  business to  come before  the committee,                                                               
Chair Holland  adjourned the Senate Judiciary  Standing Committee                                                               
meeting at 3:08 p.m.                                                                                                            

Document Name Date/Time Subjects
22-087boo.pdf SJUD 4/29/2022 1:30:00 PM
SB 140
SB 196 SJUD Amendment #1 (D.1).pdf SJUD 4/29/2022 1:30:00 PM
SB 196
SB 196 SJUD Amendment #2 (D.2).pdf SJUD 4/29/2022 1:30:00 PM
SB 196
SB 140 Sponsor Statement 3.1.2022.pdf SEDC 3/3/2022 10:00:00 AM
SJUD 4/29/2022 1:30:00 PM
SB 140
SB 140 Sectional Analysis Version B 04.25.2022.pdf SJUD 4/29/2022 1:30:00 PM
SB 140
SB 140 Research Sports Fast Facts.pdf SEDC 3/3/2022 10:00:00 AM
SJUD 4/29/2022 1:30:00 PM
SB 140
SB 140 Research BMJ Gender Affiriming Hormones Effects on Athletic Performance.pdf SJUD 4/29/2022 1:30:00 PM
SB 140
SB 140 Research Duke Law Comparing Athletic Performances.pdf SJUD 4/29/2022 1:30:00 PM
SB 140
SB 140 Research Hilton Lundberg Transgender Women in the Female Category of Sport.pdf SJUD 4/29/2022 1:30:00 PM
SB 140
SB 140 Supporting Document - Mario Bird Resume.pdf SJUD 4/29/2022 1:30:00 PM
SB 140
SB 140 Testimony - Concerned Alaskan Coaches and Athletes Group Letter of Support.pdf SJUD 4/29/2022 1:30:00 PM
SB 140
SB 196 Fiscal Note (LAW).pdf SJUD 4/29/2022 1:30:00 PM
SB 196
SB 196 Written Public Testimony - SJUD 4.29.22.pdf SJUD 4/29/2022 1:30:00 PM
SB 196
SB196 David Boyle Testimony.docx SJUD 4/29/2022 1:30:00 PM
SB 196