Nebraska lawmakers aim to define male, female for sports, bathrooms and more • Nebraska Examiner
LINCOLN — Nebraska lawmakers will seek to define “male” and “female” in state law, broadening a past effort focused on sex-based restrictions for K-12 school bathrooms and sports teams to colleges and all areas of state government.
Legislative Bill 89, the Stand With Women Act from State Sen. Kathleen Kauth of Omaha and 20 other lawmakers, builds upon LB 575 from 2023: the Sports and Spaces Act. Now Kauth is trying to codify a “Women’s Bill of Rights” that Gov. Jim Pillen enacted by executive order in August 2023.
“We have to be able to say that a woman is a woman and a man is a man, and there should be some places where each sex has privacy,” Kauth said at a morning news conference Friday with two University of Nebraska athletes and all but one of her legislative cosponsors.
Abbi Swatsworth, executive director of the statewide LGBTQ nonprofit OutNebraska, described the bill as an “escalation” of Kauth’s past efforts.
“Nobody’s ‘equality before the law’ should ever be put in jeopardy, and that is exactly what this bill does by touching everything that government controls,” Swatsworth said, quoting the state motto.
Defining ‘female’ and ‘male’
Kauth’s bill would define female, woman, girl, male, man and boy as follows:
- Female: A person whose biological reproductive system is organized around the production of ova, including a woman (adult female) and a girl (adolescent female).
- Male: A person whose biological reproductive system is organized around the production of sperm, including a man (adult male) and a boy (adolescent male).
The act would cover any agency, board, bureau, commission “or any other entity whose primary function is to act as an instrumentality or agency of the state.”
Governing bodies of any public or private K-12 school, as well as those overseeing postsecondary educational institutions, would need to designate all group restrooms or locker rooms for use by only females or males. This would be the same for all state-operated or used facilities, such as prisons, colleges and mental health facilities.
Exceptions to the bill
People whose sex does not match the designated bathrooms or locker rooms could enter for custodial, maintenance or inspection purposes or to render emergency assistance. Coaches, athletic trainers and other authorized officials or school employees would similarly be allowed to enter locker rooms.
Parents or caregivers of a minor child or someone with a disability who is a different sex than a parent or caregiver could join the child in the restroom of the parent’s or caregiver’s sex.
Individuals born with a diagnosis of a disorder or difference in sex development would have the “relevant legal protections and accommodations” available under the federal Americans with Disabilities Act.
These were among concerns raised about Kauth’s Sports and Spaces Act when it failed to advance by two votes in April 2024.
Sports teams sponsored by a school or athletic association would need to explicitly define sports or teams as for males, men or boys; females, women or girls; or coed or mixed.
Female-designated sports or teams would exclude any male student-athletes, as defined by the law. Male-designated sports would be closed to female student-athletes unless there is no female equivalent sport offered.
The Nebraska commissioner of education would be tasked with determining if a school district intentionally refuses to comply with the law and, if after a letter stating the noncompliance and a “reasonable time” to get in compliance, could take remedial action up to a violation for school accreditation.
It’s unclear how the bill might apply to postsecondary institutions, which aren’t overseen by the state education commissioner.
‘Our God makes no mistakes’
Among speakers at the news conference Friday were Pillen and NU student-athletes: Jordy Bahl from the softball team and Rebekah Allick from Nebraska volleyball. Protesters gathered and shouted in the hallway outside the governor’s hearing room.
The athletes urged transgender Nebraskans to find God and open their hearts to the love of Jesus Christ for an issue they said shouldn’t be partisan.
“Our God makes no mistakes, and I believe it is beautiful that every single one of these souls is in here right now,” Allick said to a crowded room in the Nebraska State Capitol supporting Kauth’s bill. “Honestly, my heart just mostly breaks for the trans community, because I believe a lot of them resorted to that community because people weren’t listening … when they were asking for help and were confused.”
Bahl, who supported Kauth’s previous bill focused on K-12 schools, recalled when she was 7 or 8 growing up in Papillion, Nebraska, and would go to the pool in the summer.
She said she would show up and quickly walk through her designated locker room as quickly as possible.
“If I accidentally saw a woman showering or changing, I just felt so awkward and so uncomfortable, and I just wanted to get out of there,” Bahl said.
“Now, at this day and age, I just stop for a moment and I think: What disturbance and trauma would have come over me if, at that age, if I’m that embarrassed and awkward seeing another woman, had there been a man, or let alone a man watching me shower or watching me change?” she continued.
Kauth said one instance would be too many is why her law was needed and that schools already have policies for following state law, so the bill doesn’t “have to recreate the deal.”
An existing K-12 sports policy
State Sen. Merv Riepe of Ralston was one of two Republicans to oppose Kauth’s Sports and Spaces Act in the spring of 2024.
A self-described “doubting Thomas” of the bill, Riepe said the expansion to all of state government complicates the goal. He said he’s disappointed Kauth didn’t bring two bills for some choice, and he pointed to an existing Nebraska School Activities Association gender participation policy that already covers participating K-12 schools.
“I am interested in preserving women’s sports, and that’s about as far as I’ve gone or been able to take myself to,” Riepe said. “If they would keep it simple enough, then I could probably support it.”
A handful of public schools, including Kearney Public Schools and Norfolk Public Schools, have passed policies similar to the former Sports and Spaces Act. The NSAA policy is not binding on schools.
State Sen. Stan Clouse of Kearney, who was mayor of his city for 18 years until he was elected to the Legislature in November, said lawmakers have a responsibility to protect girls and women in sports, as well as in their intimate spaces. He and Kauth said schools need consistency.
“Now the NSAA, I agree, they have a great policy, but it’s not statute. There’s a big difference,” Clouse said. “I think this is what is best now.”
Getting to 33 votes
State Sen. Margo Juarez of Omaha, a former school board member for Omaha Public Schools until she was elected to the statehouse in November, said she had heard of no issues at OPS regarding bathrooms or sports teams. She said officials worked to accommodate and support all students.
“I was pleased to hear that since I had no clue, and because that’s how I feel towards community in general, always wanting people to feel welcomed, because I just think that that’s so critical, especially from a mental health perspective,” Juarez said.
Juarez said she hasn’t questioned if someone was in the “wrong” restroom, but “knowing our environment today and being respectful, I personally, I don’t think that I’d be uncomfortable.”
State Sens. Danielle Conrad of Lincoln and Machaela Cavanaugh of Omaha, chief opponents of Kauth’s previous bill, said it was a distraction from other bills to help everyday Nebraskans, like Conrad’s efforts to remove taxes on tips, LB 28, and overtime, LB 30, and Cavanaugh’s bill to support renters, LB 107.
Kauth said hasn’t yet secured the 33 votes likely needed for the bill to overcome an expected filibuster. She has 20 cosponsors, and three senators who have not yet signed onto to the bill joined the news conference: State Sens. Jana Hughes of Seward, Glen Meyer of Pender and Dave “Woody” Wordekemper of Fremont.
Nebraska historic volleyball record
State Sen. Rita Sanders of Bellevue, who supported the Sports and Spaces Act, chairs the Government, Military and Veterans Affairs Committee where Kauth’s LB 89 is likely to be referred for a hearing, because it touches so many areas of government.
Sanders said she would give every testifier a fair chance to speak and a safe space to do so. She said she was abroad on Aug. 30, 2023, the historic Volleyball Day in Nebraska when 92,003 Huskers fans packed Memorial Stadium.
It was the same day Pillen issued his Nebraska Women’s Bill of Rights for state agencies.
“The first thing I thought was, ‘Whose brainchild was this?’” Sanders said of the volleyball record. “But more importantly, from the ‘70s to today of what it’s done [Title IX] for women and women’s sports and being able to leverage what they have.”
Allick said the idea of separating church and state is “one of the biggest things that, personally, really pisses me off.” She asked without church and God if she was “just a speck of dust in this entire universe” or if her “combustion in my mother’s uterus was an accident.”
“I just ask that we continue to pray for our brothers and sisters who feel lost and unloved and have found community elsewhere and are still wrapped in the arms of the devil that we just ask them to come to Jesus,” Allick said.
‘God made me a trans woman’
Jessie McGrath of Omaha, a native of Max, Nebraska, and a prosecutor in Los Angeles, said that as a transgender woman, Kauth’s efforts are troubling because McGrath has gone through efforts for legal changes to her name, birth certificate, passport and Social Security.
“Everything indicates that I’m an adult human female, which means I’m a woman,” McGrath said, adding it was a years-long process for herself. “Why is it that now I’m suddenly a threat to the women everywhere, because I go pee in the ladies room?”
McGrath said the effort is broader — that it’s about Kauth and others not wanting trans people to exist — and inflicting religious beliefs that not everyone shares.
McGrath is Christian and agrees with Bahl that God doesn’t make mistakes.
“But God made me a trans woman, and I recognize that, and it took me a long time to recognize that,” McGrath said. “It’s my acceptance of the fact that this was God’s path for me that finally allowed me to be able to break free from all of the repression that I put upon myself in order to be able to live free.”
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