Text of LA SB 156 (2021)

SLS 21RS-280 ORIGINAL 2021 Regular Session SENATE BILL NO. 156 BY SENATOR MIZELL AND REPRESENTATIVES EDMONSTON, HODGES AND VILLIO Prefiled pursuant to Article III, Section 2(A)(4)(b)(i) of the Constitution of Louisiana. AMUSEMENTS/SPORTS. Provides for the Fairness in Women's Sports Act relative to a school's ability to offer opportunities to each student to participate in team sporting events on an equal basis. (8/1/21) 1 AN ACT 2 To enact Chapter 7-A of Title 4 of the Louisiana Revised Statutes of 1950, to be comprised 3 of R.S. 4:441 through 446, relative to athletic activities; to require that schools 4 designate intercollegiate, interscholastic, or intramural athletic teams according to 5 the biological sex of the team members; to provide that teams designated for females 6 are not open to participation by biological males; to provide immunity protections 7 for schools from certain adverse actions; to provide for causes of action; to provide 8 for legislative findings; to provide for definitions; to provide for remedies; and to 9 provide for related matters. 10 Be it enacted by the Legislature of Louisiana: 11 Section 1. Chapter 7-A of Title 4 of the Louisiana Revised Statutes of 1950, to be 12 comprised of R.S. 4:441 through 446, is hereby enacted to read as follows: 13 CHAPTER 7-A. FAIRNESS IN WOMEN'S SPORTS ACT 14 §441. Short title 15 This Chapter shall be known as and may be cited as the "Fairness in 16 Women's Sports Act". 17 §442. Legislative findings Page 1 of 10 Coding: Words which are struck through are deletions from existing law; words in boldface type and underscored are additions. SB NO. 156 SLS 21RS-280 ORIGINAL 1 The legislature finds and declares that: 2 (1) Title IX of the Education Amendments Act of 1972, 20 U.S.C. §1681 3 et seq., was designed to ensure that women are free from discrimination on the 4 basis of sex in both education and athletics so that women would be afforded the 5 opportunity to compete for athletic scholarships and to potentially launch their 6 own athletic careers after they have completed their education. 7 (2) The United States Supreme Court has recognized that there are 8 "'[i]nherent differences' between men and women", and that these differences 9 "remain cause for celebration, but not for denigration of the members of either 10 sex or for artificial constraints on an individual's opportunity" in United States 11 v. Virginia, et al, 518 U.S. 515, 533 (1996). 12 (3) Inherent differences between men and women range from 13 chromosomal and hormonal differences to physiological differences resulting 14 in men generally having denser and stronger bones, tendons, and ligaments, 15 larger hearts, greater lung volume per body mass, a higher red blood cell count, 16 and higher hemoglobin as well as higher natural levels of testosterone, which 17 affects traits such as hemoglobin levels, body fat content, the storage and use of 18 carbohydrates, and the development of Type II muscle fibers, all of which result 19 in men being able to generate higher speed and power during physical activity. 20 (4) The biological differences between females and males, especially as 21 it relates to natural levels of testosterone, explain the male and female 22 secondary sex characteristics which develop during puberty and have lifelong 23 effects, including those most important for success in sports; categorically, they 24 are strength, speed, and endurance generally found in greater degrees in 25 biological males than biological females. 26 (5) While classifications based on sex are generally disfavored, the 27 United States Supreme Court has recognized that "sex classifications may be 28 used to compensate women for particular economic disabilities suffered, to 29 promote equal employment opportunity, (and) to advance full development of Page 2 of 10 Coding: Words which are struck through are deletions from existing law; words in boldface type and underscored are additions. SB NO. 156 SLS 21RS-280 ORIGINAL 1 the talent and capacities of our Nation's people" in United States v. Virginia, et 2 al, 518 U.S. 515, 533-534 (1996). 3 (6) In furtherance of the goals set forth in United States v. Virginia, et al, 4 518 U.S. at 533-534, one area where sex classifications should allow for the "full 5 development of the talent and capacities of our Nation's people", is in the area 6 of sports and athletics. 7 (7) A recent study of female and male Olympic performances found that, 8 although athletes from both sexes improved over the time span, the "gender 9 gap" between female and male performances remained stable. These studies 10 suggest that women's performances at the high level will never match those of 11 men. The evidence is unequivocal that starting in puberty, in every sport except 12 sailing, shooting, and riding, there will always be significant numbers of boys 13 and men who would prevail over the best girls and women in head-to-head 14 competition. Claims to the contrary are simply a denial of science. 15 (8) Scientific studies have established that the benefits that natural 16 testosterone provides to male athletes is not diminished through the use of 17 testosterone suppression. A recent study on the impact of such treatments found 18 that even after twelve months of testosterone suppression, the "superior 19 anthropometric, muscle mass and strength parameters achieved by males at 20 puberty, and underpinning a considerable portion of the male performance 21 advantage over females, are not removed.". 22 (9) Having separate sex-specific teams furthers efforts to promote sex 23 equality. Sex-specific teams accomplish this by providing opportunities for 24 female athletes to demonstrate their skill, strength, and athletic abilities while 25 also providing them with opportunities to obtain recognition, accolades, 26 scholarships, better physical and mental health, and the numerous other 27 long-term benefits that flow from success in athletic endeavors. 28 §443. Definitions 29 In this Chapter, unless otherwise indicated, the following definitions Page 3 of 10 Coding: Words which are struck through are deletions from existing law; words in boldface type and underscored are additions. SB NO. 156 SLS 21RS-280 ORIGINAL 1 shall apply: 2 (1) "Postsecondary education board member" means a person who 3 serves as a board member or officer for a postsecondary education management 4 board. 5 (2) "Postsecondary education management board" means a board which 6 governs postsecondary educational institutions, pursuant to R.S. 17:3351. 7 (3) "Schools" means all of the following: 8 (a) A public elementary or secondary school. 9 (b) A nonpublic elementary or secondary school that receives state funds. 10 (c) A public postsecondary educational institution. 11 (d) A nonpublic postsecondary educational institution that receives state 12 funds. 13 (4) "School coach" means a person who is a coach, assistant coach, or 14 volunteer coach of a school intercollegiate, interscholastic, or intramural 15 athletic team or sporting event. 16 (5) "School board" means a school board or school governing authority 17 subject to the provisions of R.S. 17:81 or any nonpublic school governing 18 authority. 19 (6) "School employee" means a person who is employed by a school, a 20 school board, a postsecondary education management board, or any 21 postsecondary institution under the authority of a postsecondary education 22 management board. 23 (7) "School board member" means a person who serves as a board 24 member or officer for a school board or school governing authority subject to 25 the provisions of R.S. 17:81 or for any nonpublic school governing authority. 26 §444. Designation of athletic teams 27 A. Intercollegiate, interscholastic, or intramural athletic teams or 28 sporting events that are sponsored by a school and that receive state funding 29 shall be expressly designated, based upon biological sex, as only one of the Page 4 of 10 Coding: Words which are struck through are deletions from existing law; words in boldface type and underscored are additions. SB NO. 156 SLS 21RS-280 ORIGINAL 1 following: 2 (1) Except as provided in Subsection C of this Section, a male, boys', or 3 men's team or event shall be for those students who are biological males. 4 (2) A female, girls', or women's team or event shall be for those students 5 who are biological females. 6 (3) A coeducational or mixed team or event shall be open for 7 participation by biological females and biological males. 8 B. Athletic teams or sporting events designated for females, girls, or 9 women shall not be open to students who are not biologically female. 10 C. Nothing in this Chapter shall be construed to restrict the eligibility of 11 any student to participate in any intercollegiate, interscholastic, or intramural 12 athletic teams or sports designated as "males", "men", or "boys", or designated 13 as "coed", or "mixed". 14 D. Nothing in this Chapter is intended to prevent any school from 15 implementing or maintaining a coeducational or mixed athletic team or sporting 16 event which is open to both biological males and biological females so long as a 17 female, girls', or women's athletic team or sporting event is not disbanded for 18 the purpose of creating a coeducational or mixed team or event which would 19 thereby result to the detriment of students of the female biological sex. 20 §445. Protection of educational institutions; limitation on liability 21 A. No government entity, nor any licensing or accrediting organization, 22 nor any athletic association shall entertain a complaint, open an investigation, 23 or take any other adverse action against a school, school board, or 24 postsecondary education management board for maintaining a separate 25 intercollegiate, interscholastic, or intramural athletic team or athletic event 26 reserved for students of the female biological sex. 27 B. No cause of action may be maintained against any school coach, 28 school, school board, employee of a school or school board, school board 29 member, or postsecondary education board member who prohibits a biological Page 5 of 10 Coding: Words which are struck through are deletions from existing law; words in boldface type and underscored are additions. SB NO. 156 SLS 21RS-280 ORIGINAL 1 male from participating in a female, girls', or women's athletic team or sporting 2 event pursuant to the requirements of this Chapter. 3 §446. Remedies; cause of action 4 A. A biological female student who is deprived of an athletic opportunity 5 or suffers or is likely to suffer from any direct or indirect harm as a result of a 6 violation of this Chapter may assert that violation as a cause of action for 7 remedies provided for in Subsection D of this Section. Requiring a biological 8 woman to compete against a biological male on a team that is designated as a 9 "female", "girls'", or "women's" team is inherently discriminatory to biological 10 women and is a cognizable harm to biological women under this Chapter. 11 B. A biological female student who is subjected to retaliation or other 12 adverse action by a school, athletic association, or other organization as a result 13 of reporting a violation of this Chapter to an employee or representative of the 14 school, athletic association, or to any local, state, or federal agency with 15 oversight of schools shall have a cause of action for remedies provided for in 16 Subsection D of this Section. 17 C. A school coach, school, school board, or employee of a school or school 18 board, school board member, or postsecondary education board member who 19 suffers any direct or indirect harm for prohibiting a biological male from 20 participating in a female, girls', or women's athletic team or sporting event 21 pursuant to the requirements of this Chapter shall have a cause of action for 22 remedies provided for in Subsection D of this Section. 23 D. Any person who brings a cause of action pursuant to this Chapter 24 may obtain appropriate relief, including but not limited to: 25 (1) Injunctive relief, protective order, writ of mandamus or a 26 prohibition, or declaratory relief to prevent any violation of this Chapter. 27 (2) Actual damages, reasonable attorney fees, and costs. 28 E. All civil actions under this Chapter must be initiated within two years 29 from the date that the harm occurred. Page 6 of 10 Coding: Words which are struck through are deletions from existing law; words in boldface type and underscored are additions. SB NO. 156 SLS 21RS-280 ORIGINAL 1 Section 2. If any provision or item of this Act, or the application thereof, is held 2 invalid, such invalidity shall not affect other provisions, items, or applications of the Act 3 which can be given effect without the invalid provision, item, or application and to this end 4 the provisions of this Act are hereby declared severable. The original instrument and the following digest, which constitutes no part of the legislative instrument, were prepared by Carla S. Roberts. DIGEST SB 156 Original 2021 Regular Session Mizell Proposed law provides for the "Fairness in Women's Sports Act". Proposed law requires that an athletic team or sporting event sponsored by a school will be designated, based upon the biological sex of team members, as one of the following: (1) A team for males, boys, or men, which means that it is only for students who are biological males. (2) A team for females, girls, or women, which means that it is only for students who are biological females. (3) A team that is coeducational or mixed, which means that is for both students who are biological males or biological females. Proposed law prohibits a team designated for females, girls, or women from being open to students who are not biologically female. Proposed law provides that, nothing in proposed law will be construed to restrict the eligibility of any student to participate in any intercollegiate, interscholastic, or intramural athletic teams or sports designated as "males", "men", or "boys" or designated as "coed" or "mixed". Proposed law provides that nothing in proposed law is intended to prevent any school from implementing or maintaining a coed athletic team or sporting event which is open to both biological males and biological females so long as a female athletic team or sporting event is not disbanded for the purpose of creating a coed team or event which would thereby result to the detriment of biological female students. Proposed law prohibits any governmental entity, licensing, or accrediting organization, or athletic association from entertaining a complaint, opening an investigation, or taking any other adverse action against a school, school board, or postsecondary education management board for maintaining separate teams for females and males as provided by proposed law. Proposed law provides that no cause of action may be maintained against any coach, school, school board, school employee, school board member, postsecondary education management board, or postsecondary education board member that prohibits a biological male from participating in a female, girls', or women's athletic team or sporting event pursuant to the requirements of proposed law. Proposed law provides that certain persons are entitled to legal causes of action and legal remedies under proposed law as follows: (1) A biological female student who is deprived of an athletic opportunity or suffers or Page 7 of 10 Coding: Words which are struck through are deletions from existing law; words in boldface type and underscored are additions. SB NO. 156 SLS 21RS-280 ORIGINAL is likely to suffer from any direct or indirect harm as a result of a violation of proposed law. Proposed law provides that requiring a biological woman to compete against a biological male on a team that is designated as a "female", "girls'", or "women's" team is inherently discriminatory to biological women and is a cognizable harm under proposed law. (2) Any biological female student who is subjected to retaliation or other adverse action by a school, athletic association, or other organization as a result of reporting a violation of proposed law to an employee or representative of the school, athletic association, or to any local, state, or federal agency with oversight of schools. (3) Any school coach, school, school board, employee of a school or school board, school board member, or post secondary education board member that suffers any direct or indirect harm for prohibiting a biological male from participating in a female, girls', or women's athletic team or sporting event. Proposed law provides that any person who is entitled to bring a cause of action pursuant to proposed law may obtain the following relief: (1) A court ordered injunction, a protective order, a writ of mandamus or prohibition, or a declaratory judgment to prevent any violation of proposed law. (2) Actual damages suffered, reasonable attorney fees, and costs. Proposed law provides that any civil action pursuant to proposed law must be initiated within two years from the date that the harm occurred. Proposed law provides for the following definitions: (1) "Postsecondary education board member" means a person who serves as a board member or officer for a postsecondary education management board. (2) "Postsecondary education management board" means a board that governs postsecondary educational institutions. (3) "School" means a public elementary or secondary school, a nonpublic elementary or secondary school that receives state funds, a public postsecondary educational institution, or a nonpublic postsecondary educational institution that receives state funds. (4) "School coach" means a person who is a coach, assistant coach, or volunteer coach of a school intercollegiate, interscholastic, or intramural athletic team or sporting event. (5) "School board" means a school board or school governing authority subject to the provisions of present law or any nonpublic school governing authority. (6) "School employee" means a person who is employed by a school or by a school board. (7) "School board member" means a person who serves as a board member or officer for a school board or school governing authority subject to the provisions of present law or for any nonpublic school governing authority. Proposed law provides that the legislature finds and declares all of the following: (1) Federal law, enacted in 1972, was designed to ensure that women are free from discrimination on the basis of sex in both education and athletics so that women Page 8 of 10 Coding: Words which are struck through are deletions from existing law; words in boldface type and underscored are additions. SB NO. 156 SLS 21RS-280 ORIGINAL would be afforded the opportunity to compete for athletic scholarships and to potentially launch their own athletic careers after they have completed their education. (2) The U.S. Supreme Court has recognized that there are inherent differences between men and women and that 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. (3) Inherent differences between men and women range from chromosomal and hormonal differences to physiological differences resulting in men generally having denser and stronger bones, tendons, and ligaments, larger hearts, greater lung volume per body mass, a higher red blood cell count, and higher hemoglobin as well as higher natural levels of testosterone, which affects traits such as hemoglobin levels, body fat content, the storage and use of carbohydrates, and the development of Type II muscle fibers, all of which result in men being able to generate higher speed and power during physical activity. (4) The biological differences between females and males, especially as it relates to natural levels of testosterone, explain the male and female secondary sex characteristics which develop during puberty and have lifelong effects, including those most important for success in sports; categorically, they are strength, speed, and endurance generally found in greater degrees in biological males than biological females. (5) While classifications based on sex are generally disfavored, the U.S. Supreme Court has recognized that sex classifications may be used to compensate women for particular economic disabilities suffered, to promote equal employment opportunity, and to advance full development of the talent and capacities of our nation's people. (6) One place where sex classifications allow for the full development of the talent and capacities of our nation's people is in the context of sports and athletics. (7) A recent study of female and male Olympic performances found that, although athletes from both sexes improved over the time span, the gender gap between female and male performances remained stable. These studies suggest that women's performances at the high level will never match those of men. The evidence is unequivocal that starting in puberty, in every sport except sailing, shooting, and riding, there will always be significant numbers of boys and men who will prevail over the best girls and women in head-to-head competition. Claims to the contrary are simply a denial of science. (8) The benefits that natural testosterone provided to male athletes is not diminished through the use of testosterone suppression drugs and therapies. A recent study on the impact of such testosterone suppression found that even after 12 months of testosterone suppression, males still possess a considerable advantage over females in terms of muscle mass and strength parameters. The significantly increased muscle mass and strength parameters that males achieved at puberty continues long after testosterone suppression is undertaken. (9) Having separate sex-specific teams furthers efforts to promote sex equality. Sex-specific teams accomplish this by providing opportunities for female athletes to demonstrate their skill, strength, and athletic abilities while also providing them with opportunities to obtain recognition, accolades, scholarships, better physical and mental health, and the numerous other long-term benefits that flow from success in athletic endeavors. Page 9 of 10 Coding: Words which are struck through are deletions from existing law; words in boldface type and underscored are additions. SB NO. 156 SLS 21RS-280 ORIGINAL Effective August 1, 2021. (Adds R.S. 4:441-446) Page 10 of 10 Coding: Words which are struck through are deletions from existing law; words in boldface type and underscored are additions.