Bill to define male, female in state law advances in Nebraska Legislature

Yahoo

23-04-2025

State Sens. Merv Riepe of Ralston and Kathleen Kauth of the Millard area meet on the floor of the Nebraska Legislature. April 22, 2025. (Zach Wendling/Nebraska Examiner)
LINCOLN — State lawmakers advanced a proposal Tuesday seeking to define 'male' and 'female' in state law targeted for K-12 or collegiate bathrooms, sports teams and locker rooms.
Legislative Bill 89, the 'Stand With Women Act' from State Sen. Kathleen Kauth of Omaha, advanced 33-16, with all 33 Republicans in the officially nonpartisan Legislature uniting around the measure. LB 89 was introduced on behalf of Gov. Jim Pillen as one of his 2025 priorities.
Kauth said her bill was a 'testament' to the ongoing fight for women's rights and equality, including in sports, and that it was 'astounding that women are having to relitigate this discussion to hold on to these hard-fought rights.'
'Women's rights to privacy, safety and opportunity should never be considered secondary to the rights of men,' Kauth said.
State Sen. Megan Hunt of Omaha, a nonpartisan progressive, led the opposition to LB 89. She said supporters had a 'whole crayon box of life' yet were choosing to use only 'two colors' and were acting like 'gender cops.'
'Trans kids existing in a restroom in a fourth grade classroom, it doesn't hurt anyone,' Hunt said. 'But forcing them out, singling them out, humiliating them, that does cause harm. We don't get to legislate someone's identity just because some people feel uneasy.'
State Sen. Merv Riepe of Ralston filed an amendment seeking to only focus on sports. While it did not come up Tuesday, he and Kauth said they would work together on a path forward ahead of the second-round debate.
Riepe has repeatedly said that if the bill were limited to sports, it would have his support. Thirty-three votes are needed to shut off debate and invoke 'cloture' after a set amount of time.
The bill advances to the second of up to three rounds of debate. It will face up to two hours of debate during the second debate.
Under a proposed committee amendment, adopted 33-11, sex would be defined as whether someone 'naturally has, had, will or would have, but for a congenital anomaly or intentional or unintentional disruption, the reproductive system that at some point produces, transports and utilizes' either eggs (female, woman or girl) or sperm (male, man or boy) for fertilization.
Public schools and postsecondary institutions would be required to pass policies complying with the law if they don't already have such language. Bathrooms and locker rooms would need to be designated as 'male' or 'female' only, unless they are single occupancy. Family use bathrooms would have been an additional option.
Public school sports would be restricted to students' sex assigned at birth, for males or females only, unless coed/mixed. There would be an exception if there is no female equivalent team (such as football). Private schools competing against public institutions would need to do the same.
A doctor would need to verify a student's sex before they could participate in single-sex sports under the amended LB 89.
State agencies would also need to generally enforce any applicable rules, regulations or duties according to someone's sex, which Pillen already required in a 2023 executive order that he said would continue until a bill passed detailing single-sex requirements for certain services, facilities or sports — such as LB 89.
State Sen. John Cavanaugh of Omaha asked the reverse question to Kauth of young trans children and their families, many of whom he said he met with and feel as though their lives could be 'upended.' He said some parents are thinking of leaving Nebraska 'to keep their kids alive, to keep their kids in their life, to keep them happy.'
State Sen. Dunixi Guereca of Omaha said a sign on a bathroom door would not stop someone who wants to cause harm, and State Sen. Margo Juarez of Omaha questioned the possible economic consequences of the bill.
'To me, the simple solution is to mind your own business,' said Juarez, a former school board member for Omaha Public Schools.
Juarez quipped that after the 2025 session, she hopes she doesn't need 40 hours of therapy, referencing Kauth's 2023 bill that put in a requirement of 'gender-identity-focused' therapy for any minor seeking gender-related care.
Multiple opponents questioned how the bill could be enforced.
Kauth asked what the 'magic number' was for how many women or girls needed to feel scared or hurt before the Legislature should act.
'There is no number of women who should be discriminated against,' Kauth said.
State Sen. Rob Dover of Norfolk said that as his daughters were growing up they weren't comfortable undressing in the locker room with other girls or one another. He said he didn't know 'how we can say that these other things are fine.'
State Sen. Loren Lippincott of Central City said LB 89 was not about 'exclusion,' which many other supporters echoed.
'It's about ensuring our daughters, sisters and friends have a level playing field to compete, succeed and shine,' he said.
State Sen. Tanya Storer of Whitman said nothing of her support for LB 89 was 'rooted in hate or discrimination,' and she walked through major milestones in women's rights, from the first women's rights convention in 1848 and the right to vote in 1920 to the Equal Pay Act in 1963 and the passage of the Violence Against Women Act in 1994.
'I stand in support of LB 89 not because I hate anybody,' Storer said. 'But I stand here in honor of the women that came before me.'
State Sen. Dave Murman of Glenvil, the Education Committee chair, said differences between male and female student-athletes were 'settled,' pointing to Nebraska high school track and field records online. He said Title IX, prohibiting sex discrimination in schools that receive federal funding, required federal action.
Riepe and Tom Brandt of Plymouth, Republicans who declined to vote for a narrower proposal limited to K-12 sports and spaces in 2024, did so this time around.
Brandt had previously voiced concern that the 2024 version did not cover parents of young children or caregivers of people with disabilities who were not the same sex. LB 89 provides an additional exception to the bathroom requirements in these cases.
Riepe, throughout the 2025 session, has swung between 'leaning' for or against the bill and in January had described himself as a 'doubting Thomas' for the bill.
On Tuesday, Riepe said his amendment was a 'personal compromise' that addressed his shared concern of 'preserving' the integrity of interscholastic K-12 sports. However, he said he didn't think that concern justified using state law to 'micromanage' bathrooms or locker rooms and that expecting beer leagues beyond interscholastic was 'unreasonable.'
He said the agency section in the bill 'opens a can of worms' that lawmakers needed to further understand. Kauth has said the intention is, for example, prison housing assignments.
''Standing with women,' it sounds strong, it sounds so American, but it's not that easy, and it's much more serious and much more complicated,' Riepe said.
Riepe added that an 'attorney friend' of his last week told him: 'When it comes to equal rights, your equity ends where my freedom begins.'
If the bill is not narrowed during the second-round debate, Riepe said he is 'prepared' to oppose LB 89.
The federal landscape was also very different this time around compared to 2024, with President Donald Trump and his officials threatening to pull federal funding if schools allowed transgender students to participate in sports according to their gender identity, not sex.
In response, both the Nebraska School Activities Association and the National Collegiate Athletic Association decided to restrict sports participation to student-athletes' sex assigned at birth.
The Nebraska association, for example, had a nearly decade-old rigorous Gender Participation Policy that would allow transgender students to apply if they could, in effect, prove their gender identity. Trans girls also had to demonstrate that they had no 'physiological advantage' and had started hormone treatments or completed sex-reassignment surgery.
Fewer than 10 students had applied for participation under the NSAA policy before its 'indefinite' end earlier this year, after Trump's order. Supporters said just one student was 'one too many' if it jeopardized other students' opportunities or privacy.
Riepe was among senators who favored the NSAA route, and multiple state senators had proposed putting the requirements into law, including State Sen. Jane Raybould of Lincoln.
Kauth has repeatedly said that executive orders can be overturned and that the NSAA guidelines were not adequate.
'LB 89 aims to strike a balance between fairness, safety and equality,' Kauth said. 'It's a thoughtful and necessary measure that reaffirms the rights of women and girls in Nebraska to opportunity, privacy and safety.'
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