Text of CO HB 1098 (2023)

First Regular Session Seventy-fourth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 23-0589.01 Michael Dohr x4347 HOUSE BILL 23-1098 House Committees Senate Committees State, Civic, Military, & Veterans Affairs A BILL FOR AN ACT CONCERNING PROTECTING FEMALE STUDENTS' RIGHTS IN ATHLETICS. 101 Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://leg.colorado.gov.) The bill requires any intercollegiate, interscholastic, intramural, or club athletic team, sport, or athletic event to be designated as one of the following, based on the biological sex at birth of the participating students: Male, female, or coeducational. Male and female athletes may only participate on teams designated to their respective sexes. The bill prohibits a governmental entity from investigating a complaint or taking any adverse action against a public school, school district, activities association or organization, institution of higher education, or any HOUSE SPONSORSHIP Frizell and Bradley, Armagost, Hartsook, Weinberg, Winter T. SENATE SPONSORSHIP Pelton B., Shading denotes HOUSE amendment. Double underlining denotes SENATE amendment. Capital letters or bold & italic numbers indicate new material to be added to existing law. Dashes through the words or numbers indicate deletions from existing law. employee or governing board member for complying with the bill. The bill creates a cause of action for a student, school, or institution that suffers harm as a result of noncompliance with the bill. There is also a cause of action for a student who suffers retaliation for reporting violations of the bill. The statutes of limitations for the causes of action are 2 years and a prevailing party is entitled to reasonable attorney fees. The attorney general is required to provide legal representation to a school, school district, association, or institution of higher education that is sued for complying with the bill. Be it enacted by the General Assembly of the State of Colorado: 1 SECTION 1. In Colorado Revised Statutes, add 22-32-116.6 as 2 follows: 3 22-32-116.6. Extracurricular and interscholastic athletic 4 activities fairness - definition. (1) (a) ANY INTERSCHOLASTIC, 5 INTRAMURAL, OR CLUB ATHLETIC TEAM, SPORT, OR ATHLETIC EVENT THAT 6 IS SPONSORED OR SANCTIONED BY A PUBLIC SCHOOL, SCHOOL DISTRICT, OR 7 ACTIVITIES ASSOCIATION OR ORGANIZATION MUST BE DESIGNATED AS ONE 8 OF THE FOLLOWING, BASED ON THE BIOLOGICAL SEX AT BIRTH OF THE 9 PARTICIPATING STUDENTS: 10 (I) FEMALES, WOMEN, OR GIRLS; 11 (II) MALES, MEN, OR BOYS; OR 12 (III) COEDUCATIONAL OR MIXED. 13 (b) ONLY FEMALE STUDENTS, BASED ON THEIR BIOLOGICAL SEX, 14 MAY PARTICIPATE ON ANY TEAM OR IN A SPORT OR ATHLETIC EVENT 15 DESIGNATED AS BEING FOR FEMALES, WOMEN, OR GIRLS. ONLY MALE 16 STUDENTS, BASED ON THEIR BIOLOGICAL SEX, MAY PARTICIPATE ON ANY 17 TEAM OR IN A SPORT OR ATHLETIC EVENT DESIGNATED AS BEING FOR 18 MALES, MEN, OR BOYS. 19 (c) A GOVERNMENTAL ENTITY SHALL NOT INVESTIGATE A 20 HB23-1098 -2- COMPLAINT OR TAKE ANY ADVERSE ACTION AGAINST A PUBLIC SCHOOL, 1 SCHOOL DISTRICT, OR ACTIVITIES ASSOCIATION OR ORGANIZATION, OR ANY 2 EMPLOYEE OR GOVERNING BOARD MEMBER OF THE SCHOOL, SCHOOL 3 DISTRICT, OR ASSOCIATION OR ORGANIZATION FOR COMPLIANCE WITH THIS 4 SUBSECTION (1). 5 (2) (a) IF A STUDENT SUFFERS DIRECT OR INDIRECT HARM AS A 6 RESULT OF A VIOLATION OF SUBSECTION (1) OF THIS SECTION, THE 7 STUDENT HAS A PRIVATE CAUSE OF ACTION FOR INJUNCTIVE, MANDAMUS, 8 AND DECLARATORY RELIEF AGAINST THE PUBLIC SCHOOL, SCHOOL 9 DISTRICT, OR ACTIVITIES ASSOCIATION OR ORGANIZATION THAT CAUSED 10 THE HARM. IF A STUDENT IS SUBJECTED TO RETALIATION OR OTHER 11 ADVERSE ACTION BY A PUBLIC SCHOOL, SCHOOL DISTRICT, OR ACTIVITIES 12 ASSOCIATION OR ORGANIZATION AS A RESULT OF REPORTING A VIOLATION 13 OF SUBSECTION (1) OF THIS SECTION TO AN EMPLOYEE OR REPRESENTATIVE 14 OF THE SCHOOL, SCHOOL DISTRICT, ACTIVITIES ASSOCIATION OR 15 ORGANIZATION OR TO A STATE OR FEDERAL GOVERNMENTAL ENTITY 16 HAVING OVERSIGHT AUTHORITY, THAT STUDENT HAS A PRIVATE CAUSE OF 17 ACTION FOR INJUNCTIVE, MANDAMUS, AND DECLARATORY RELIEF AGAINST 18 THE SCHOOL, SCHOOL DISTRICT, OR ACTIVITIES ASSOCIATION OR 19 ORGANIZATION. 20 (b) IF A PUBLIC SCHOOL OR SCHOOL DISTRICT SUFFERS ANY DIRECT 21 OR INDIRECT HARM AS A RESULT OF A VIOLATION OF SUBSECTION (1) OF 22 THIS SECTION, THAT SCHOOL OR SCHOOL DISTRICT HAS A PRIVATE CAUSE 23 OF ACTION FOR INJUNCTIVE, MANDAMUS, AND DECLARATORY RELIEF 24 AGAINST THE GOVERNMENTAL ENTITY, LICENSING OR ACCREDITING 25 ORGANIZATION, OR ACTIVITIES ASSOCIATION OR ORGANIZATION THAT 26 CAUSED THE HARM. 27 HB23-1098 -3- (c) A GOVERNMENTAL ENTITY, SCHOOL, OR SCHOOL DISTRICT IS 1 NOT LIABLE TO ANY STUDENT FOR ITS COMPLIANCE WITH SUBSECTION (1) 2 OF THIS SECTION. A CIVIL ACTION PURSUANT TO SUBSECTION (2)(a) OR 3 (2)(b) OF THIS SECTION MUST BE INITIATED WITHIN TWO YEARS FROM THE 4 DATE THE ALLEGED HARM OCCURRED. A PARTY PREVAILING ON A CLAIM 5 BROUGHT PURSUANT TO SUBSECTION (2)(a) OR (2)(b) OF THIS SECTION IS 6 ENTITLED TO REASONABLE ATTORNEY FEES AND COSTS. 7 (d) THE FAILURE TO COMPLY WITH SUBSECTION (1) OF THIS 8 SECTION IS A WAIVER OF SOVEREIGN IMMUNITY FOR THE CIVIL ACTIONS 9 AUTHORIZED IN SUBSECTION (2)(a) OR (2)(b) OF THIS SECTION. 10 (3) FOR ANY LAWSUIT BROUGHT OR ANY COMPLAINT FILED 11 AGAINST A PUBLIC SCHOOL OR A SCHOOL DISTRICT OR AN EMPLOYEE OR A 12 MEMBER OF A PUBLIC SCHOOL OR SCHOOL DISTRICT, AS A RESULT OF 13 COMPLIANCE WITH SUBSECTION (1) OF THIS SECTION, THE ATTORNEY 14 GENERAL SHALL PROVIDE LEGAL REPRESENTATION AT NO COST TO THAT 15 ENTITY OR INDIVIDUAL. IN ADDITION TO THE EXPENSES OF 16 REPRESENTATION, THE STATE SHALL ASSUME FINANCIAL RESPONSIBILITY 17 FOR ANY OTHER EXPENSE RELATED TO THE LAWSUIT OR COMPLAINT 18 INCURRED BY A PUBLIC SCHOOL OR A SCHOOL DISTRICT, AN EMPLOYEE OF 19 THE SCHOOL OR SCHOOL DISTRICT, OR A MEMBER OF THE ASSOCIATION OR 20 ORGANIZATION, INCLUDING ANY AWARD FOR ATTORNEY FEES AND COSTS 21 FOR WHICH THAT ENTITY OR INDIVIDUAL WOULD BE OTHERWISE 22 RESPONSIBLE. 23 (4) FOR PURPOSES OF THIS SECTION, "BIOLOGICAL SEX" MEANS 24 EITHER THE FEMALE OR MALE SEX LISTED ON THE STUDENT'S OFFICIAL 25 BIRTH CERTIFICATE IF THE CERTIFICATE WAS ISSUED AT OR NEAR THE TIME 26 OF THE STUDENT'S BIRTH. 27 HB23-1098 -4- SECTION 2. In Colorado Revised Statutes, add 23-1-142 as 1 follows: 2 23-1-142. Extracurricular and interscholastic athletic 3 activities fairness - definition. (1) (a) ANY INTERCOLLEGIATE, 4 INTRAMURAL, OR CLUB ATHLETIC TEAM, SPORT, OR ATHLETIC EVENT THAT 5 IS SPONSORED OR SANCTIONED BY AN INSTITUTION OF HIGHER EDUCATION 6 THAT RECEIVES PUBLIC MONEY FROM THE STATE MUST BE DESIGNATED AS 7 ONE OF THE FOLLOWING, BASED ON THE BIOLOGICAL SEX AT BIRTH OF THE 8 PARTICIPATING STUDENTS: 9 (I) FEMALES OR WOMEN; 10 (II) MALES OR MEN; OR 11 (III) COEDUCATIONAL OR MIXED. 12 (b) ONLY FEMALE STUDENTS, BASED ON THEIR BIOLOGICAL SEX, 13 MAY PARTICIPATE ON A TEAM OR IN A SPORT OR ATHLETIC EVENT 14 DESIGNATED AS BEING FOR FEMALES OR WOMEN. ONLY MALE STUDENTS, 15 BASED ON THEIR BIOLOGICAL SEX, MAY PARTICIPATE ON ANY TEAM OR IN 16 A SPORT OR ATHLETIC EVENT DESIGNATED AS BEING FOR MALES OR MEN. 17 (c) A GOVERNMENTAL ENTITY SHALL NOT INVESTIGATE A 18 COMPLAINT OR TAKE ANY ADVERSE ACTION AGAINST AN INSTITUTION OF 19 HIGHER EDUCATION THAT RECEIVES PUBLIC MONEY FROM THE STATE OR 20 ANY EMPLOYEE OR GOVERNING BOARD MEMBER OF THE INSTITUTION FOR 21 COMPLIANCE WITH THIS SUBSECTION (1). 22 (2) (a) IF A STUDENT SUFFERS DIRECT OR INDIRECT HARM AS A 23 RESULT OF A VIOLATION OF SUBSECTION (1) OF THIS SECTION, THE 24 STUDENT HAS A PRIVATE CAUSE OF ACTION FOR INJUNCTIVE, MANDAMUS, 25 AND DECLARATORY RELIEF AGAINST THE INSTITUTION OF HIGHER 26 EDUCATION THAT RECEIVES PUBLIC MONEY FROM THE STATE THAT 27 HB23-1098 -5- CAUSED THE HARM. IF A STUDENT IS SUBJECTED TO RETALIATION OR 1 OTHER ADVERSE ACTION BY AN INSTITUTION OF HIGHER EDUCATION THAT 2 RECEIVES PUBLIC MONEY FROM THE STATE AS A RESULT OF REPORTING A 3 VIOLATION OF SUBSECTION (1) OF THIS SECTION TO AN EMPLOYEE OR 4 REPRESENTATIVE OF THE INSTITUTION OR TO A STATE OR FEDERAL 5 GOVERNMENTAL ENTITY HAVING OVERSIGHT AUTHORITY, THAT STUDENT 6 HAS A PRIVATE CAUSE OF ACTION FOR INJUNCTIVE, MANDAMUS, AND 7 DECLARATORY RELIEF AGAINST THE INSTITUTION OF HIGHER EDUCATION 8 THAT RECEIVES PUBLIC MONEY FROM THE STATE. 9 (b) IF AN INSTITUTION OF HIGHER EDUCATION THAT RECEIVES 10 PUBLIC MONEY FROM THE STATE SUFFERS ANY DIRECT OR INDIRECT HARM 11 AS A RESULT OF A VIOLATION OF SUBSECTION (1) OF THIS SECTION, THAT 12 INSTITUTION HAS A PRIVATE CAUSE OF ACTION FOR INJUNCTIVE, 13 MANDAMUS, AND DECLARATORY RELIEF AGAINST THE GOVERNMENTAL 14 ENTITY, LICENSING OR ACCREDITING ORGANIZATION, OR ACTIVITIES 15 ASSOCIATION OR ORGANIZATION. 16 (c) AN INSTITUTION OF HIGHER EDUCATION THAT RECEIVES PUBLIC 17 MONEY FROM THE STATE IS NOT LIABLE TO ANY STUDENT FOR ITS 18 COMPLIANCE WITH SUBSECTION (1) OF THIS SECTION. A CIVIL ACTION 19 PURSUANT TO SUBSECTION (2)(a) OR (2)(b) OF THIS SECTION MUST BE 20 INITIATED WITHIN TWO YEARS FROM THE DATE THE ALLEGED HARM 21 OCCURRED. A PARTY PREVAILING ON A CLAIM BROUGHT PURSUANT TO 22 SUBSECTION (2)(a) OR (2)(b) OF THIS SECTION IS ENTITLED TO 23 REASONABLE ATTORNEY FEES AND COSTS. 24 (d) THE FAILURE TO COMPLY WITH SUBSECTION (1) OF THIS 25 SECTION IS A WAIVER OF SOVEREIGN IMMUNITY FOR THE CIVIL ACTIONS 26 AUTHORIZED IN SUBSECTION (2)(a) OR (2)(b) OF THIS SECTION. 27 HB23-1098 -6- (3) FOR ANY LAWSUIT BROUGHT OR ANY COMPLAINT FILED 1 AGAINST AN INSTITUTION OF HIGHER EDUCATION THAT RECEIVES PUBLIC 2 MONEY FROM THE STATE OR AN EMPLOYEE OF THE INSTITUTION AS A 3 RESULT OF COMPLIANCE WITH SUBSECTION (1) OF THIS SECTION, THE 4 ATTORNEY GENERAL SHALL PROVIDE LEGAL REPRESENTATION AT NO COST 5 TO THAT INSTITUTION OR INDIVIDUAL. IN ADDITION TO THE EXPENSES OF 6 REPRESENTATION, THE STATE SHALL ASSUME FINANCIAL RESPONSIBILITY 7 FOR ANY OTHER EXPENSE RELATED TO THE LAWSUIT OR COMPLAINT 8 INCURRED BY AN INSTITUTION OF HIGHER EDUCATION THAT RECEIVES 9 PUBLIC MONEY FROM THE STATE OR EMPLOYEE OF THE INSTITUTION 10 INCLUDING ANY AWARD FOR ATTORNEY FEES AND COSTS FOR WHICH THAT 11 ENTITY OR INDIVIDUAL WOULD BE OTHERWISE RESPONSIBLE. 12 (4) FOR PURPOSES OF THIS SECTION, "BIOLOGICAL SEX" MEANS 13 EITHER THE FEMALE OR MALE SEX LISTED ON THE STUDENT'S OFFICIAL 14 BIRTH CERTIFICATE IF THE CERTIFICATE WAS ISSUED AT OR NEAR THE TIME 15 OF THE STUDENT'S BIRTH. 16 SECTION 3. In Colorado Revised Statutes, 24-10-106, amend 17 (1)(i) and (1)(j); and add (1)(k) as follows: 18 24-10-106. Immunity and partial waiver. (1) A public entity 19 shall be immune from liability in all claims for injury which lie in tort or 20 could lie in tort regardless of whether that may be the type of action or the 21 form of relief chosen by the claimant except as provided otherwise in this 22 section. Sovereign immunity is waived by a public entity in an action for 23 injuries resulting from: 24 (i) An action brought pursuant to section 13-21-128; or 25 (j) An action brought pursuant to part 12 of article 20 of title 13, 26 whether the conduct alleged occurred before, on, or after January 1, 2022; 27 HB23-1098 -7- OR 1 (k) AN ACTION BROUGHT PURSUANT TO SECTION 22-32-116.6 2 (2)(a) OR (2)(b) OR AN ACTION BROUGHT PURSUANT TO SECTION 23-1-142 3 (2)(a) OR (2)(b). 4 SECTION 4. Act subject to petition - effective date. This act 5 takes effect at 12:01 a.m. on the day following the expiration of the 6 ninety-day period after final adjournment of the general assembly; except 7 that, if a referendum petition is filed pursuant to section 1 (3) of article V 8 of the state constitution against this act or an item, section, or part of this 9 act within such period, then the act, item, section, or part will not take 10 effect unless approved by the people at the general election to be held in 11 November 2024 and, in such case, will take effect on the date of the 12 official declaration of the vote thereon by the governor. 13 HB23-1098 -8-