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.