Legislature(2021 - 2022)BUTROVICH 205
04/29/2022 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB140 | |
| SB196 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 196 | TELECONFERENCED | |
| += | HB 246 | TELECONFERENCED | |
| += | SB 124 | TELECONFERENCED | |
| + | SB 140 | TELECONFERENCED | |
| + | TELECONFERENCED |
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
education."
- 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
date."
- 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
date."
- 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
23
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
140.
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
Holland.
SB 140-DESIGNATE SEX FOR SCHOOL-SPONSORED SPORTS
1:34:12 PM
CHAIR HOLLAND announced the consideration of SENATE BILL NO. 140
"An Act relating to school athletics, recreation, athletic
teams, and sports."
[CSSB 140(EDC) was before the committee.]
1:34:28 PM
SENATOR HUGHES, speaking as sponsor, paraphrased the sponsor
statement for SB 140.
[Original punctuation provided.]
1:34:51 PM
Fifty years ago, women's sports changed forever. In
1972 slightly over 300,000 women and girls played
college and high school sports in the United States.
When I was a teenager, the only option for a female to
be connected to a public-school athletic program was
to be a cheerleader, and the cheerleading squads were
small (5-10) at each high school. As of 2022, the
number of female athletes in the U.S. has increased by
over 900 percent to more than 3.5 million women and
girls thanks to the passage of Title IX.
SENATOR HUGHES remarked that playing basketball was not an
option when she was a teenager, but her daughter played varsity
basketball due to Title IX.
1:35:32 PM
This year, as we celebrate Title IX's 50 the
anniversary, women and girls stand, once more, at risk
of losing an even playing field in sports. An ever-
increasing trend of males and transgender women who
were born male playing in women's sports threatens
competition and fairness. Girls and women should not
be robbed of the chance to be selected for a team, to
win a championship, or to be awarded a college
scholarship due to the physical advantages of
transgender women.
Title IX promises, "No person in the United States
shall, on the basis of sex, be excluded from
participation, or be denied the benefits of, or be
subjected to discrimination under any education
program or activity receiving federal financial
assistance."
The goal of SB140 is not to preclude transgender
athletes from competition or equal access to sports
and athletic programs in schools. Rather, thanks to
Title IX, transgender athletes are protected from
discrimination in sports and promised equal access to
athletic programs.
1:36:12 PM
The goal of SB140 to ensure discrimination against
girls and women does not occur - that they are treated
fairly and not disadvantaged in athletic programs
compared to male-bodied athletes. Undeniable evidence
and scientific research conclude that the average
biological male body is stronger, larger, and faster
than the average female body even after testosterone
suppression treatment. This is particularly true in
high school athletics. For example, many male high
school track and field athletes consistently beat the
times of the best female Olympians who've trained
intensely for years. Male-bodied athletes have a
substantial physical advantage over female athletes in
sports, regardless of the beliefs that the male-bodied
athlete may hold about their sexuality or gender
identity.
For decades, biological sex-specific separations in
athletics have preserved competition while allowing
women the chance to win. The great triumph of Title IX
and the success of millions of women in athletics must
not be discarded in the name of social progress. SB140
stands for an equal opportunity for all.
The bill would require public schools to designate
their athletic teams male, female, or co-ed and a
student who participates in an athletic team
designated female to be female based on her biological
sex. Private schools competing against public schools
would also be required to comply with these rules.
1:36:17 PM
SENATOR HUGHES added that SB 140 creates an even playing field
in women's sports by creating an eligibility requirement that
members on a school athletic or sports-designated female, women,
or girls be biologically female based on the athlete's
biological sex at birth.
SENATOR HUGHES stated that scientific research concludes that
the average biological male body is stronger, larger, and faster
than the average female body even after testosterone suppression
treatment. This is particularly true in high school athletics.
Many male track and field athletes consistently beat the times
of the very best female Olympians who have trained intensely for
years.
SENATOR HUGHES highlighted that this topic has come to the
forefront of public debate online and in the news. Transwomen
dominate in various women's sports nationwide at the high school
and college levels. For example, 16 members of the University of
Pennsylvania swim team authored a joint letter to their school
regarding their teammate, Lia Thomas, a transwoman.
1:37:40 PM
SENATOR HUGHES read a quote from the letter about Lia Thomas:
We fully support Lia Thomas in her decision to affirm
her gender identity and to transition from a man to a
woman. Lia has every right to live her life
authentically. However, we also recognize that when it
comes to sports competition, that the biology of sex
is a separate issue from someone's gender identity.
Biologically, Lia holds an unfair advantage over
competition in the women's category, as evidenced by
her rankings that have bounced from #462 as a male to
#1 as a female.
Lia's inclusion with unfair biological advantages
means that we have lost competitive opportunities.
Some of us have lost records.
1:38:16 PM
SENATOR HUGHES stated that this was the concern addressed by SB
140.
SENATOR HUGHES said she is not opposed to transgenders or is
full of hatred as some have stated because she values everyone.
She offered her view that transgender athletes like Lia Thomas
deserve the opportunity to compete and win fairly. However, it
must not come at the cost of excluding otherwise qualified
biological females from the only category of sport in which they
can hope to succeed. SB 140 is neutral regarding gender identity
and does not factor in an individual's choices about their
sexuality or eligibility to play school sports. It offers every
athlete an equal opportunity to compete on at least two teams: a
coed team and a team that aligns with their biological sex at
birth. The spirit of SB 140 is rooted in Title IX and seeks to
establish protections for women and girls so they will not be
robbed of future opportunities. This bill has received hundreds
of hours of work from national experts and attorneys familiar
with Title IX and relevant case law. She noted the binding Ninth
Circuit [Court of Appeals] precedent in Clark v. Arizona, in
which the court upheld the right for six separate athletic teams
and prohibited boys from playing on the girls' volleyball team.
1:39:31 PM
SENATOR HUGHES related that the previous committee spent roughly
seven and one-half hours analyzing the bill, four of which were
to take public testimony. The committee spent the remaining time
reviewing constitutional matters in two subsequent hearings. Six
amendments were adopted to tighten the bill and remove any doubt
that SB 140 infringes on constitutional rights.
1:40:35 PM
At ease
1:41:32 PM
CHAIR HOLLAND reconvened the meeting.
1:41:43 PM
DANIEL PHELPS, Staff, Senator Shelley Hughes, Alaska State
Legislature, Juneau, Alaska, stated the reasoning for SB 140.
First, women across the state and country had asked for
protection for their athletic programs. Second, science and
research indicate an indisputable athletic advantage in male
bodies compared to female bodies. Third, United States laws,
particularly Title IX, prohibit discrimination based on sex in
education programs, including sports. US courts have
consistently recognized and established a precedent for the
physiological differences between men and women, which merits
sex-based separation in athletics.
1:42:28 PM
MR. PHELPS co-presented a PowerPoint on the Even Playing Field
Act, slide 1, INPUT FROM ATHLETES.
1:42:33 PM
CHAIR HUGHES read quotes on a series of slides in the
PowerPoint, which read:
"I would have won my first-ever high school track meet
if it weren't for this [male-bodied] athlete...It was
very disappointing."
[MARGARET ONEAL, Hawaii]
"Those with a male sex advantage should not be able to
compete in women's sport."
[SHARRON DAVIES, British Olympic Silver Medalist]
"I don't know of a woman athlete who doesn't want
trans girls to be treated fairly...
But the cost of treating her fairly should not come at
the cost of discriminating against a biologically-
female-at-birth woman."
[DONNA LOPIANO, Former CEO, Women's Sports Foundation]
"I didn't feel it was fair for [this athlete] to be
playing [and taking] away a position from girls who
could have started, which to me was so wrong on so
many levels."
[DESTINY LABUANAN, Maui, Hawaii]
"We know who's going to win the race before it even
begins...it just seems like all our hard work is going
down the drain."
[ALANNA SMIH, Danbury, CT]
"I knew that I was the fastest girl here, one of the
fastest in the state....Then, the gun went off. And I
lost."
[CHELSEA MITCHELL, Canton, CT]
When it comes to women's sports, biology matters."
[INGA THOMPSON, 10x National Champ, 3x Olympian,
3x World Medalist, 2x Podium Finisher in the Women's
Tour de France]
["When it comes to competitive athletics,] sex
segregation is the only way to achieve equality for
girls and women."
[MARTINA NAVRATILOVA, Winner of 18 Grand Slam Tennis
Singles Titles]
SENATOR HUGHES encouraged members to read the slides
because those who made the statements were incredible
female athletes. She offered to post the PowerPoint to
BASIS.
1:43:57 PM
MR. PHELPS turned to THE SCIENCE portion beginning on slide 15.
He reviewed slide 16, THE BRITISH MEDICINE JOURNAL.
Objective: to examine the effect of gender-affirming
hormones on athletic performance among transwomen and
transmen.
Findings: The 15-31% athletic advantage for transwomen
pre-therapy.
9% faster mean run speed in transwomen after the 1
year period of testosterone suppression that is
recommended by World Athletics for inclusion in
women's events.
1:44:19 PM
MR. PHELPS reviewed slide 17, THE HILTON LUNDBERG STUDY.
Objective: Review how difference in biological
characteristics between biological males and females
affect sporting performance and assess whether
evidence exists to support the assumption that
testosterone suppression in transgender women removes
the male performance advantage and thus delivers fair
and safe competition.
Findings: The performance gap between males and
females becomes significant at puberty.
10-50% depending on the sport
Strength, lean body mass, muscle size, and bone
density are only trivially affected by testosterone
suppression
MR. PHELPS reviewed slide 19, DUKE LAW.
Objective: Comparing athletic performances between the
best elite women to boys and men
Findings: Female bodied athletes are not competitive
for the win against males. The lowest end of the male
range is three times higher than the highest end of
the female range.
MR. PHELPS referred to slide 20, which consisted of a table
illustrating that boys and men outperform women.
1:45:00 PM
MR. PHELPS turned to the portion of the PowerPoint entitled,
ACCORDING TO THE COURTS. He reviewed slide 22.
There are "[i]nherent differences' between men and
women," and these differences "remain cause for
celebration, but not for denigration of the members of
either sex or for artificial constraints on an
individual's opportunity."
United States v. Virginia
581 U.S. 515, 533 (1996).
MR. PHELPS reviewed slide 23, which read:
"Because of innate physiological differences, boys and
girls are not similarly situated as they enter
athletic competition."
Kleczek v. Rhode Island Interscholastic League, Inc.
612A.2d 734, 738 (R.I. 1992)
MR. PHELPS reviewed slide 24, which read:
"It takes little imagination to realize that were play
and competition not separated by sex, the great bulk
of the females would quickly be eliminated from
participation and denied any meaningful opportunity
for athletic involvement."
Cape v. Tenn. Secondary Sch. Athletic Ass'n.
th
563 F.2d 793, 795 (6 Cir. 1977)
1:45:59 PM
CHAIR HOLLAND asked whether the PowerPoint was already posted to
BASIS since it was presented to the Senate Education Committee.
SENATOR HUGHES said this PowerPoint presentation was condensed.
1:46:51 PM
TREG TAYLOR, Attorney General, Department of Law, Anchorage,
Alaska, stated that he had reviewed the correspondence from
Legislative Legal counsel and previous testimony. He opined that
there was no facial constitutional infirmity with SB 140
pertaining to the Alaska Constitution, US Constitution, Alaska
law, or federal law. He noted that Legislative Legal memo [from
Marie Marx, Legislative Counsel, dated March 2, 2022] used
language including may, might, or could, but the arguments and
analysis lacked certainty. He acknowledged that arguments could
be made, which was common in any challenges to statutory
provisions.
1:48:20 PM
SENATOR KIEHL noted that the sponsor referred to older federal
court cases. He asked whether the federal courts had
distinguished any cases related to transgender individuals in
recent years.
ATTORNEY GENERAL TAYLOR said he was unsure which cases he was
alluding to, perhaps Karnoski [v. Trump] but in the most recent
case, the Supreme Court made it clear that Bostock v. Clayton
County only related to Title VII [of the Civil Rights Act of
1964] employment issues for gay and transgender individuals.
That case determined that an employer could not discriminate or
terminate a person solely based on their gender identity or
sexual orientation. He offered his view that an effort has been
made nationwide to make the Title VII court decision apply to
all gender issues. However, the federal courts have not yet
weighed in on those issues.
1:49:37 PM
SENATOR KIEHL noted that the US Supreme Court analysis in
Bostock limited the application to employment. Still, the
court's analysis of the questions concluded that discrimination
based on sexual orientation or gender identity involves sex as a
but-for cause. He asked how he saw Alaska or other courts
distinguishing the language the sponsor read from Title IX. He
noted that language refers to discrimination based on sex, which
is identical to language analyzed by the Supreme Court in
Bostock.
ATTORNEY GENERAL TAYLOR responded that Title IX would
potentially be found unconstitutional under the Legislative
Legal Counsel's analysis. He offered his view that when the
Legislative Legal attorney did not find arguments about the
right to privacy, they went on to equal protection issues. He
stated that it's easy to see why there's not an equal protection
issue related to the state's interest, which was adequately
pointed out in the introduction of the bill. He acknowledged
that arguments could be made; however, it's up to the courts to
decide. He maintained there clearly were no constitutional
issues with the bill.
CHAIR HOLLAND turned to invited testimony.
1:52:08 PM
MARIO BIRD, Attorney, Law Office of Mario L. Bird, Anchorage,
Alaska, as invited testifier, spoke in support of SB 140. He
offered to address the legality of SB 140 as it applied to the
Alaska Constitution, including issues related to equal
protection, and the right to privacy in art. I, sec. 22 and
civil rights provision in art. 1, sec. 3 of the Alaska
Constitution.
1:52:56 PM
MR. BIRD referred to Justice Ginsburg's opinion in US v.
Virginia, related to the Virginia Military Institute (VMI) case,
in which young women sued based on VMI's admission policy. In
that case, Justice Ginsburg wrote the opinion of the court
stating, "Physical differences between men and women, however,
are enduring: "[T]he two sexes are not fungible; a community
made up exclusively of one [sex] is.
MR. BIRD stated that opinion, along with Justice Ginsburg's
legal work while she was at the US Equal Employment Opportunity
Commission (EEOC), provides the basis for distinguishing between
biological males and biological females. He said that is the
basis for SB 140.
1:53:24 PM
MR. BIRD said the existing statute, AS 14.18.050 (b) makes a
distinction between males and females. He read:
(b)Separation of the sexes is permitted during sex
education programs and during participation in
physical education activities if the purpose of the
activity involves bodily contact.
MR. BIRD explained that this statute was based on the
differences between biological female and biological male
bodies. He noted that there had been an extensive discussion of
federal law, which he would avoid since it is not his area of
expertise. However, he related his understanding that previous
committees discussed the federal register, Title 34, CFR 106.41,
which Attorney General Taylor alluded to under Title IX. He
agreed by using some of the analysis by Legislative Legal that
even Title IX would be unconstitutional and would defy equal
protection. He offered his view that the Legislative Legal
analysis that tried to "knock down" all of Title IX was flawed.
1:54:49 PM
MR. BIRD pointed out that Alaska has some exemplars on both
sides of this issue. In the late 2000s, Michaela Hutchison was
the first female to compete and win a state wrestling
championship. Another female, Hope Steffensen, did the same
thing later. He said he played against Hannah Carlson and Kerry
Weiland, who both had stellar careers in hockey. He stated that
young women in Alaska have excelled in smaller schools and have
gone on to have national careers.
MR. BIRD contrasted that with Nattaphon Wangyot, a biological
male who competed as a female and won third and fifth place at
the 2016 Alaska State Track Championships. He noted that the
Alaska Association of School Boards indicated it had not seen
any evidence that female sports have been affected by
transgender athletes, which is not true. This issue was brought
forth because a biological male competed in women's sports.
1:56:16 PM
MR. BIRD summarized his testimony saying that he did not see
equal protection issues under Alaska's case law or the equal
protection clause striking down SB 140. Second, regarding the
right to privacy, the Alaska School Activities Association
(ASAA) rules were predicated on things like a medical exam,
student course load, transfer requirements, grade point average
(GPA), age, and other eligibility considerations. He said all of
these are preexisting privacy issues, but people typically do
not sue based on their right to privacy. Schools don't disclose
information, such as a person failing a grade, but the student
would be ineligible to participate in sports.
MR. BIRD referred to art. I, sec. III of the Alaska
Constitution, pertaining to civil rights, which read, "No person
is to be denied the enjoyment of any civil or political right
because of race, color, creed, sex, or national origin." He said
he did not find any reference to this provision in Legislative
Legal briefs. He suggested perhaps case law establishes that the
Alaska Supreme Court will allow separate accommodations
dependent on sex. He recalled a criminal case relating to
prostitution, which the court struck down because it was
strictly female. Any distinctions as to gender must rest upon
some logical justification having a basis on the actual
conditions of human life. He offered his view that SB 140 puts
that front and center. Scientific data confirms a difference
between biological females and biological males regarding
athletic performance. He related it was a 1979 case, but even if
it were to be used, SB 140 would pass muster.
1:59:22 PM
MR. BIRD said the district courts in Alaska allowed judges to
require certain business attire, but it differentiates between
sexes. The Supreme Court found no merit in the contention that a
coat and tie requirement amounts to impermissible gender
discrimination because it applies to males and not to females.
He emphasized that the case law that exists indicates that this
is permissible.
MR. BIRD pointed out that the constitutional right to privacy
and the civil rights provision in the Alaska Constitution
specifically state, "The legislature shall implement this
section." It is the legislature's job to implement the meaning
by passing legislation, ensuring that the law meets
constitutional muster. He offered his belief that that has
already happened once by adopting the committee substitute (CS)
for SB 140, Version B. He reiterated that he views SB 140 as
having met constitutional muster under Alaska case law and the
Alaska Constitution. He recommended that members pass the bill
from committee.
2:01:02 PM
SENATOR KIEHL clarified that no attorneys serve on the Senate
Judiciary Committee. He stated that he had cited Justice
Ginsburg on the VMI case. He was somewhat confused because it
was a portion of her reasoning in a ruling that struck down
VMI's attempts to discriminate based on sex and segregation. He
asked for his rationale.
MR. BIRD related his understanding that while it did strike down
the discrimination portion, it maintained that VMI should
provide separate facilities for biological females. He offered
his view that is the reason the language about the differences
between men and women are enduring appears. He stated that VMI
provided separate barracks and locker rooms.
2:02:50 PM
SENATOR KIEHL asked whether it was ever acceptable to
discriminate within the boundaries of a single biological sex.
He noted runners, including Semenya, [a South African intersex
biological female gold medalist], and Masilingi and Mboma,
[Namibian sprinters with a natural high testosterone levels] as
examples. He offered his view that the definition of biological
sex was tied in.
MR. BIRD responded that he was unfamiliar with the runners. He
indicated that a whole area of law in the American Disabilities
Act covers biological sex, for example, Casey [Martin] sued the
PGA Tour in order to play golf. In terms of whether it was
appropriate to set off one competitor from another, he suggested
it happens every day between junior varsity (JV) and varsity
players. Players must meet certain eligibility requirement to
compete at local, regional, or state.
MR. BIRD stated that the bill was clear about what constitutes
biological sex, but he thought Version B was an improvement from
the original version.
2:05:34 PM
SENATOR KIEHL pointed out that the term biological sex is
undefined in the bill. He wondered whether the definition
included testosterone levels and chromosomes or if biological
sex is based on what is on the birth certificate.
MR. BIRD responded that it would depend on the physicals
required of athletes before they can compete under the ASAA
rules. He stated that this bill puts forward the requirement of
using the biological sex per the person's birth certificate.
SENATOR KIEHL said it was helpful to know the bill's definition
had nothing to do with physical characteristics.
2:06:57 PM
SENATOR KIEHL asked about liability provisions. The bill would
create rights of action, but none of the tort caps appear to
apply. He asked what remedies and liabilities the bill would
create.
2:07:24 PM
SENATOR HUGHES stated that an amendment was added in Version B
to make it clear nothing prohibits due process, so that an
individual could file legal action. One stated goal is to
protect school districts and schools from expensive, repeated
cases, but the person could still file a lawsuit.
SENATOR KIEHL wondered what remedies a court might order if a
student alleged that they did not get the full scholarship
because of noncompliance. He asked whether the court could order
the full cost of attending an Ivy League school.
SENATOR HUGHES stated she could not speculate on future court
rulings.
2:09:40 PM
SENATOR KIEHL stated that the new Sec. 14.18.170 in Section 3 of
the bill speaks to direct and indirect harm. Since this would
not be subject to Alaska's other court caps, he wondered if the
sponsor envisioned pain and suffering damages or punitive
damages.
SENATOR HUGHES answered that it would be on a case-by-case
basis. She stated that she could not predict a scenario and why
a person might file a lawsuit. She explained that several more
attorneys plan to testify at a future hearing who may have a
better response.
2:10:48 PM
MR. PHELPS stated that amendments to the bill take a step back
from prescribing what the courts should do; instead, it is left
to the courts to determine their rightful role.
2:11:18 PM
SENATOR KIEHL stated that the bill prohibits some entities from
suing [under the new Section 14.18.160 in Section 3.] He asked
for the separation of powers for those who may not take adverse
action against a school or school district for complying. He
said that provision raises some constitutional concerns for him.
SENATOR HUGHES referred to page 3, to Sec. 14.18.180, and read.
(a) Nothing in AS 14.18.150 - 14.18.190 abrogates,
restricts, or otherwise limits
(1) the access of any person to a state or federal
court; or
(2) a person's right to bring in state or federal
court a complaint or cause of action arising out of
AS 14.18.150 - 14.18.190.
SENATOR HUGHES asked him to point out how the bill would
restrict who could take legal action.
2:12:12 PM
SENATOR KIEHL referred to page 2, lines [21]-23, Sec. 14.18.160.
(a) A governmental entity, licensing or accrediting
organization, athletic association, or school district
may not take adverse action against a school or school
district for complying with AS 14.18.150.
SENATOR KIEHL asked what was envisioned in subsection (a) if not
legal action.
SENATOR HUGHES responded that Sec. 14.18.160 does not refer to
adverse action through the courts. She explained that if one
school district felt like another district their athletes
competed with was not complying with the requirements to have
male, female or coed athletic teams, they couldn't use that
provision to prevent the school from competing in a tournament.
Thus, this provision refers to adverse action taken outside of
the courts. The Legislative Legal attorney indicated that Sec.
14.18.180, related to access to courts, provides sufficient
clarification.
2:13:35 PM
CHAIR HOLLAND recalled that the previous committee amended the
bill to clarify adverse action.
SENATOR KIEHL asked how many districts have coed varsity or
inter-school level teams.
2:14:20 PM
SENATOR HUGHES offered to do research and report to the
committee. She related her understanding that it was reasonably
common in the smaller schools. She said if the bill were to
pass, nothing would prevent a school from expanding coed
opportunities.
2:14:41 PM
SENATOR KIEHL related his understanding that the bill was
gender-neutral because coed teams were an option. He thought it
would be helpful to determine gender neutrality using factual
analysis.
2:15:46 PM
SENATOR SHOWER noted some female athletes could compete against
men and do well, but statistically, a female who does well in a
male-dominated sport is a rare exception. However, a male
competing against females typically rises to the top due to
biological differences. He added that he held records in two
different sports. He predicted that his records would have held
in each category if he had competed as a girl. Thus, he cannot
support biological males competing with biological females.
2:17:30 PM
SENATOR HUGHES mentioned Serena and Venus Williams and
highlighted that a biological male who ranked 203rd was able to
beat both. Florence Griffith Joyner still holds the 100 and 200-
meter sprint records. A man who was ranked 5,006 beat her
record. Typically, the differences at the Olympic level between
biological females are within a second. Lydia Jacoby won the
Olympic 100-meter breaststroke, whereas her counterpart Adam
Petey swam 7.5 seconds faster. She expressed concern that girls
would not have a level playing field and a chance for victory if
this was not addressed.
2:19:20 PM
SENATOR KIEHL answered that Senator Hughes did not use examples
of transgender athletes who had been through hormonal therapies
that are required at the elite levels in order to compete as
women. He pointed out that one of his constituents underwent
some of those therapies and was allowed to compete under AASA
rules. His constituent did not crush it or dominate the sport.
He asked why the International Olympic Committee protocols for
addressing transgender athletes was insufficient for Alaska.
SENATOR HUGHES stated that the data shows that even after
multiple years of testosterone suppression therapy, there are
still significant differences. One study shows a 9 percent
difference. She said the size of the skeleton matters and the
amount of leverage. Although some muscle mass decreases with
hormone suppression, it is still greater than a biological
female.
2:21:37 PM
CHAIR HOLLAND held SB 140 in committee.
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
horrendous.
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-
LS0768\D.2.
32-LS0768\D.2
Marx
4/28/22
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
program;
(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
government."
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
institution."
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
Education.
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
read:
(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
adopted.
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
moot.
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
adopted.
2:46:57 PM
CHAIR HOLLAND moved to adopt Amendment 2, work order 32-
LS0768\D.1.
32-LS0768\D.1
Marx
4/27/22
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
subparagraphs.
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
appropriate.
2:50:57 PM
CHAIR HOLLAND agreed that direct or compel was more active than
encourage.
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
adopted.
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
material.
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
curricula.
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
lawsuits.
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
vote.
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.