Text of ID H 500 (2020)

LEGISLATURE OF THE STATE OF IDAHO Sixty-fifth Legislature Second Regular Session - 2020 IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 500 BY EDUCATION COMMITTEE AN ACT 1 RELATING TO THE FAIRNESS IN WOMEN'S SPORTS ACT; AMENDING TITLE 33, IDAHO 2 CODE, BY THE ADDITION OF A NEW CHAPTER 62, TITLE 33, IDAHO CODE, TO 3 PROVIDE A SHORT TITLE, TO PROVIDE LEGISLATIVE FINDINGS AND PURPOSE, TO 4 PROVIDE FOR THE DESIGNATION OF ATHLETIC TEAMS, TO PROVIDE PROTECTION 5 FOR EDUCATIONAL INSTITUTIONS, TO PROVIDE FOR A CAUSE OF ACTION, AND TO 6 PROVIDE SEVERABILITY. 7 Be It Enacted by the Legislature of the State of Idaho: 8 SECTION 1. That Title 33, Idaho Code, be, and the same is hereby amended 9 by the addition thereto of a NEW CHAPTER, to be known and designated as Chap- 10 ter 62, Title 33, Idaho Code, and to read as follows: 11 CHAPTER 62 12 FAIRNESS IN WOMEN'S SPORTS ACT 13 33-6201. SHORT TITLE. This chapter shall be known and may be cited as 14 the "Fairness in Women's Sports Act." 15 33-6202. LEGISLATIVE FINDINGS AND PURPOSE. (1) The legislature finds 16 that there are "inherent differences between men and women," and that these 17 differences "remain cause for celebration, but not for denigration of the 18 members of either sex or for artificial constraints on an individual's op- 19 portunity," United States v. Virginia, 518 U.S. 515, 533 (1996); 20 (2) These "inherent differences" range from chromosomal and hormonal 21 differences to physiological differences; 22 (3) Men generally have "denser, stronger bones, tendons, and liga- 23 ments" and "larger hearts, greater lung volume per body mass, a higher red 24 blood cell count, and higher haemoglobin," Neel Burton, The Battle of the 25 Sexes, Psychology Today (July 2, 2012); 26 (4) Men also have higher natural levels of testosterone, which affects 27 traits such as hemoglobin levels, body fat content, the storage and use of 28 carbohydrates, and the development of type 2 muscle fibers, all of which re- 29 sult in men being able to generate higher speed and power during physical 30 activity, Doriane Lambelet Coleman, Sex in Sport, 80 Law and Contemporary 31 Problems 63, 74 (2017) (quoting Gina Kolata, Men, Women and Speed. 2 Words: 32 Got Testosterone?, N.Y. Times (Aug. 21, 2008)); 33 (5) The biological differences between females and males, especially 34 as it relates to natural levels of testosterone, "explain the male and female 35 secondary sex characteristics which develop during puberty and have life- 36 long effects, including those most important for success in sport: cate- 37 gorically different strength, speed, and endurance," Doriane Lambelet Cole- 38 man and Wickliffe Shreve, "Comparing Athletic Performances: The Best Elite 39 Women to Boys and Men," Duke Law Center for Sports Law and Policy; 40 2 (6) While classifications based on sex are generally disfavored, the 1 Supreme Court has recognized that "sex classifications may be used to com- 2 pensate women for particular economic disabilities [they have] suffered, to 3 promote equal employment opportunity, [and] to advance full development of 4 the talent and capacities of our Nation's people," United States v. Vir- 5 ginia, 518 U.S. 515, 533 (1996); 6 (7) One place where sex classifications allow for the "full develop- 7 ment of the talent and capacities of our Nation's people" is in the context of 8 sports and athletics; 9 (8) Courts have recognized that the inherent, physiological differ- 10 ences between males and females result in different athletic capabilities. 11 See e.g. Kleczek v. Rhode Island Interscholastic League, Inc., 612 A.2d 12 734, 738 (R.I. 1992) ("Because of innate physiological differences, boys 13 and girls are not similarly situated as they enter athletic competition."); 14 Petrie v. Ill. High Sch. Ass'n, 394 N.E.2d 855, 861 (Ill. App. Ct. 1979) 15 (noting that "high school boys [generally possess physiological advantages 16 over] their girl counterparts" and that those advantages give them an unfair 17 lead over girls in some sports like "high school track"); 18 (9) A recent study of female and male Olympic performances since 1983 19 found that, although athletes from both sexes improved over the time span, 20 the "gender gap" between female and male performances remained stable. 21 "These suggest that women's performances at the high level will never match 22 those of men." Valerie Thibault et al., Women and men in sport performance: 23 The gender gap has not evolved since 1983, 9 Journal of Sports Science and 24 Medicine 214, 219 (2010); 25 (10) As Duke Law professor and All-American track athlete Doriane Cole- 26 man, tennis champion Martina Navratilova, and Olympic track gold medalist 27 Sanya Richards-Ross recently wrote: "The evidence is unequivocal that 28 starting in puberty, in every sport except sailing, shooting, and riding, 29 there will always be significant numbers of boys and men who would beat the 30 best girls and women in head-to-head competition. Claims to the contrary are 31 simply a denial of science," Doriane Coleman, Martina Navratilova, et al., 32 Pass the Equality Act, But Don't Abandon Title IX, Washington Post (Apr. 29, 33 2019); 34 (11) The benefits that natural testosterone provides to male athletes 35 is not diminished through the use of puberty blockers and cross-sex hor- 36 mones. A recent study on the impact of such treatments found that even "after 37 12 months of hormonal therapy," a man who identifies as a woman and is taking 38 cross-sex hormones "had an absolute advantage" over female athletes and 39 "will still likely have performance benefits" over women, Tommy Lundberg 40 et al., "Muscle strength, size and composition following 12 months of gen- 41 der-affirming treatment in transgender individuals: retained advantage for 42 the transwomen," Karolinksa Institutet (Sept. 26, 2019); and 43 (12) Having separate sex-specific teams furthers efforts to promote sex 44 equality. Sex-specific teams accomplish this by providing opportunities 45 for female athletes to demonstrate their skill, strength, and athletic abil- 46 ities while also providing them with opportunities to obtain recognition and 47 accolades, college scholarships, and the numerous other long-term benefits 48 that flow from success in athletic endeavors. 49 3 33-6203. DESIGNATION OF ATHLETIC TEAMS. (1) Interscholastic, inter- 1 collegiate, intramural, or club athletic teams or sports that are sponsored 2 by a public school or any school that is a member of the Idaho high school 3 activities association or a public institution of higher education or any 4 higher education institution that is a member of the national collegiate 5 athletic association (NCAA), national association of intercollegiate ath- 6 letics (NAIA), or national junior college athletic association (NJCAA) 7 shall be expressly designated as one (1) of the following based on biological 8 sex: 9 (a) Males, men, or boys; 10 (b) Females, women, or girls; or 11 (c) Coed or mixed. 12 (2) Athletic teams or sports designated for females, women, or girls 13 shall not be open to students of the male sex. 14 (3) If disputed, a student may establish sex by presenting a signed 15 physician's statement that shall indicate the student's sex based solely on: 16 (a) The student's internal and external reproductive anatomy; 17 (b) The student's normal endogenously produced levels of testosterone; 18 and 19 (c) An analysis of the student's genetic makeup. 20 33-6204. PROTECTION FOR EDUCATIONAL INSTITUTIONS. A government 21 entity, any licensing or accrediting organization, or any athletic associa- 22 tion or organization shall not entertain a complaint, open an investigation, 23 or take any other adverse action against a school or an institution of higher 24 education for maintaining separate interscholastic, intercollegiate, in- 25 tramural, or club athletic teams or sports for students of the female sex. 26 33-6205. CAUSE OF ACTION. (1) Any student who is deprived of an ath- 27 letic opportunity or suffers any direct or indirect harm as a result of a vi- 28 olation of this chapter shall have a private cause of action for injunctive 29 relief, damages, and any other relief available under law against the school 30 or institution of higher education. 31 (2) Any student who is subject to retaliation or other adverse action by 32 a school, institution of higher education, or athletic association or organ- 33 ization as a result of reporting a violation of this chapter to an employee 34 or representative of the school, institution, or athletic association or or- 35 ganization, or to any state or federal agency with oversight of schools or 36 institutions of higher education in the state, shall have a private cause of 37 action for injunctive relief, damages, and any other relief available under 38 law against the school, institution, or athletic association or organiza- 39 tion. 40 (3) Any school or institution of higher education that suffers any di- 41 rect or indirect harm as a result of a violation of this chapter shall have a 42 private cause of action for injunctive relief, damages, and any other relief 43 available under law against the government entity, licensing or accrediting 44 organization, or athletic association or organization. 45 (4) All civil actions must be initiated within two (2) years after the 46 harm occurred. Persons or organizations who prevail on a claim brought pur- 47 suant to this section shall be entitled to monetary damages, including for 48 4 any psychological, emotional, and physical harm suffered, reasonable attor- 1 ney's fees and costs, and any other appropriate relief. 2 33-6206. SEVERABILITY. The provisions of this chapter are hereby de- 3 clared to be severable and if any provision of this chapter or the applica- 4 tion of such provision to any person or circumstance is declared invalid for 5 any reason, such declaration shall not affect the validity of the remaining 6 portions of this chapter. 7

LEGISLATURE OF THE STATE OF IDAHO Sixty-fifth Legislature Second Regular Session - 2020 IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 500, As Amended in the Senate BY EDUCATION COMMITTEE AN ACT 1 RELATING TO THE FAIRNESS IN WOMEN'S SPORTS ACT; AMENDING TITLE 33, IDAHO 2 CODE, BY THE ADDITION OF A NEW CHAPTER 62, TITLE 33, IDAHO CODE, TO 3 PROVIDE A SHORT TITLE, TO PROVIDE LEGISLATIVE FINDINGS AND PURPOSE, TO 4 PROVIDE FOR THE DESIGNATION OF ATHLETIC TEAMS, TO PROVIDE PROTECTION 5 FOR EDUCATIONAL INSTITUTIONS, TO PROVIDE FOR A CAUSE OF ACTION, AND TO 6 PROVIDE SEVERABILITY. 7 Be It Enacted by the Legislature of the State of Idaho: 8 SECTION 1. That Title 33, Idaho Code, be, and the same is hereby amended 9 by the addition thereto of a NEW CHAPTER, to be known and designated as Chap- 10 ter 62, Title 33, Idaho Code, and to read as follows: 11 CHAPTER 62 12 FAIRNESS IN WOMEN'S SPORTS ACT 13 33-6201. SHORT TITLE. This chapter shall be known and may be cited as 14 the "Fairness in Women's Sports Act." 15 33-6202. LEGISLATIVE FINDINGS AND PURPOSE. (1) The legislature finds 16 that there are "inherent differences between men and women," and that these 17 differences "remain cause for celebration, but not for denigration of the 18 members of either sex or for artificial constraints on an individual's op- 19 portunity," United States v. Virginia, 518 U.S. 515, 533 (1996); 20 (2) These "inherent differences" range from chromosomal and hormonal 21 differences to physiological differences; 22 (3) Men generally have "denser, stronger bones, tendons, and liga- 23 ments" and "larger hearts, greater lung volume per body mass, a higher red 24 blood cell count, and higher haemoglobin," Neel Burton, The Battle of the 25 Sexes, Psychology Today (July 2, 2012); 26 (4) Men also have higher natural levels of testosterone, which affects 27 traits such as hemoglobin levels, body fat content, the storage and use of 28 carbohydrates, and the development of type 2 muscle fibers, all of which re- 29 sult in men being able to generate higher speed and power during physical 30 activity, Doriane Lambelet Coleman, Sex in Sport, 80 Law and Contemporary 31 Problems 63, 74 (2017) (quoting Gina Kolata, Men, Women and Speed. 2 Words: 32 Got Testosterone?, N.Y. Times (Aug. 21, 2008)); 33 (5) The biological differences between females and males, especially 34 as it relates to natural levels of testosterone, "explain the male and female 35 secondary sex characteristics which develop during puberty and have life- 36 long effects, including those most important for success in sport: cate- 37 gorically different strength, speed, and endurance," Doriane Lambelet Cole- 38 man and Wickliffe Shreve, "Comparing Athletic Performances: The Best Elite 39 Women to Boys and Men," Duke Law Center for Sports Law and Policy; 40 2 (6) While classifications based on sex are generally disfavored, the 1 Supreme Court has recognized that "sex classifications may be used to com- 2 pensate women for particular economic disabilities [they have] suffered, to 3 promote equal employment opportunity, [and] to advance full development of 4 the talent and capacities of our Nation's people," United States v. Vir- 5 ginia, 518 U.S. 515, 533 (1996); 6 (7) One place where sex classifications allow for the "full develop- 7 ment of the talent and capacities of our Nation's people" is in the context of 8 sports and athletics; 9 (8) Courts have recognized that the inherent, physiological differ- 10 ences between males and females result in different athletic capabilities. 11 See e.g. Kleczek v. Rhode Island Interscholastic League, Inc., 612 A.2d 12 734, 738 (R.I. 1992) ("Because of innate physiological differences, boys 13 and girls are not similarly situated as they enter athletic competition."); 14 Petrie v. Ill. High Sch. Ass'n, 394 N.E.2d 855, 861 (Ill. App. Ct. 1979) 15 (noting that "high school boys [generally possess physiological advantages 16 over] their girl counterparts" and that those advantages give them an unfair 17 lead over girls in some sports like "high school track"); 18 (9) A recent study of female and male Olympic performances since 1983 19 found that, although athletes from both sexes improved over the time span, 20 the "gender gap" between female and male performances remained stable. 21 "These suggest that women's performances at the high level will never match 22 those of men." Valerie Thibault et al., Women and men in sport performance: 23 The gender gap has not evolved since 1983, 9 Journal of Sports Science and 24 Medicine 214, 219 (2010); 25 (10) As Duke Law professor and All-American track athlete Doriane Cole- 26 man, tennis champion Martina Navratilova, and Olympic track gold medalist 27 Sanya Richards-Ross recently wrote: "The evidence is unequivocal that 28 starting in puberty, in every sport except sailing, shooting, and riding, 29 there will always be significant numbers of boys and men who would beat the 30 best girls and women in head-to-head competition. Claims to the contrary are 31 simply a denial of science," Doriane Coleman, Martina Navratilova, et al., 32 Pass the Equality Act, But Don't Abandon Title IX, Washington Post (Apr. 29, 33 2019); 34 (11) The benefits that natural testosterone provides to male athletes 35 is not diminished through the use of puberty blockers and cross-sex hor- 36 mones. A recent study on the impact of such treatments found that even "after 37 12 months of hormonal therapy," a man who identifies as a woman and is taking 38 cross-sex hormones "had an absolute advantage" over female athletes and 39 "will still likely have performance benefits" over women, Tommy Lundberg 40 et al., "Muscle strength, size and composition following 12 months of gen- 41 der-affirming treatment in transgender individuals: retained advantage for 42 the transwomen," Karolinksa Institutet (Sept. 26, 2019); and 43 (12) Having separate sex-specific teams furthers efforts to promote sex 44 equality. Sex-specific teams accomplish this by providing opportunities 45 for female athletes to demonstrate their skill, strength, and athletic abil- 46 ities while also providing them with opportunities to obtain recognition and 47 accolades, college scholarships, and the numerous other long-term benefits 48 that flow from success in athletic endeavors. 49 3 33-6203. DESIGNATION OF ATHLETIC TEAMS. (1) Interscholastic, inter- 1 collegiate, intramural, or club athletic teams or sports that are sponsored 2 by a public primary or secondary school, a public institution of higher edu- 3 cation, or any school or institution whose students or teams compete against 4 a public school or institution of higher education shall be expressly desig- 5 nated as one (1) of the following based on biological sex: 6 (a) Males, men, or boys; 7 (b) Females, women, or girls; or 8 (c) Coed or mixed. 9 (2) Athletic teams or sports designated for females, women, or girls 10 shall not be open to students of the male sex. 11 (3) A dispute regarding a student's sex shall be resolved by the school 12 or institution by requesting that the student provide a health examination 13 and consent form or other statement signed by the student's personal health 14 care provider that shall verify the student's biological sex. The health 15 care provider may verify the student's biological sex as part of a routine 16 sports physical examination relying only on one (1) or more of the following: 17 the student's reproductive anatomy, genetic makeup, or normal endogenously 18 produced testosterone levels. The state board of education shall promul- 19 gate rules for schools and institutions to follow regarding the receipt and 20 timely resolution of such disputes consistent with this subsection. 21 33-6204. PROTECTION FOR EDUCATIONAL INSTITUTIONS. A government 22 entity, any licensing or accrediting organization, or any athletic associa- 23 tion or organization shall not entertain a complaint, open an investigation, 24 or take any other adverse action against a school or an institution of higher 25 education for maintaining separate interscholastic, intercollegiate, in- 26 tramural, or club athletic teams or sports for students of the female sex. 27 33-6205. CAUSE OF ACTION. (1) Any student who is deprived of an ath- 28 letic opportunity or suffers any direct or indirect harm as a result of a vi- 29 olation of this chapter shall have a private cause of action for injunctive 30 relief, damages, and any other relief available under law against the school 31 or institution of higher education. 32 (2) Any student who is subject to retaliation or other adverse action by 33 a school, institution of higher education, or athletic association or organ- 34 ization as a result of reporting a violation of this chapter to an employee 35 or representative of the school, institution, or athletic association or or- 36 ganization, or to any state or federal agency with oversight of schools or 37 institutions of higher education in the state, shall have a private cause of 38 action for injunctive relief, damages, and any other relief available under 39 law against the school, institution, or athletic association or organiza- 40 tion. 41 (3) Any school or institution of higher education that suffers any di- 42 rect or indirect harm as a result of a violation of this chapter shall have a 43 private cause of action for injunctive relief, damages, and any other relief 44 available under law against the government entity, licensing or accrediting 45 organization, or athletic association or organization. 46 (4) All civil actions must be initiated within two (2) years after the 47 harm occurred. Persons or organizations who prevail on a claim brought pur- 48 4 suant to this section shall be entitled to monetary damages, including for 1 any psychological, emotional, and physical harm suffered, reasonable attor- 2 ney's fees and costs, and any other appropriate relief. 3 33-6206. SEVERABILITY. The provisions of this chapter are hereby de- 4 clared to be severable and if any provision of this chapter or the applica- 5 tion of such provision to any person or circumstance is declared invalid for 6 any reason, such declaration shall not affect the validity of the remaining 7 portions of this chapter. 8