Text of MD HB 359 (2023)

EXPLANATION: CAPITALS INDICATE MATTER ADDED TO EXISTING LAW. [Brackets] indicate matter deleted from existing law. *hb0359* HOUSE BILL 359 F1, D5 3lr1211 HB 757/22 – W&M By: Delegates Szeliga, Adams, Arentz, Arikan, Baker, Bouchat, Buckel, Chisholm, Ciliberti, Fisher, Ghrist, Grammer, Griffith, Hartman, Hinebaugh, Hornberger, Jacobs, Kipke, R. Long, Mangione, McComas, Metzgar, Miller, M. Morgan, T. Morgan, Nawrocki, Otto, Reilly, Rose, Schmidt, Tomlinson, Valentine, and Wivell Introduced and read first time: January 26, 2023 Assigned to: Ways and Means A BILL ENTITLED AN ACT concerning 1 Education – Interscholastic and Intramural Junior Varsity and Varsity Teams 2 and Sports – Designation Based on Sex 3 (Save Women’s Sports Act) 4 FOR the purpose of requiring certain interscholastic and intramural junior varsity and 5 varsity athletic teams or sports sponsored by certain schools to be expressly 6 designated based on biological sex; prohibiting certain entities from taking certain 7 adverse actions against a school or county board of education for maintaining 8 separate interscholastic and intramural junior varsity and varsity athletic teams 9 and sports for students of the female sex; providing that certain individuals have the 10 right to bring a civil action under certain circumstances; and generally relating to 11 interscholastic and intramural junior varsity and varsity teams and sports of public 12 and nonpublic schools. 13 BY adding to 14 Article – Education 15 Section 7–118 16 Annotated Code of Maryland 17 (2022 Replacement Volume) 18 Preamble 19 WHEREAS, The General Assembly finds that there are two biological sexes, female 20 and male, and that a person’s sex is objectively determined by genetics and anatomy 21 existing at the time of birth; and 22 2 HOUSE BILL 359 WHEREAS, There are “[i]nherent differences between men and women,” and that 1 these differences “remain cause for celebration, but not for denigration of the members of 2 either sex or for artificial constraints on an individual’s opportunity.” United States v. 3 Virginia, 518 U.S. 515, 533 (1996); and 4 WHEREAS, The “inherent differences” between men and women range from 5 chromosomal and hormonal differences to physiological differences; and 6 WHEREAS, Men generally have “denser, stronger bones, tendons, and ligaments” 7 and “larger hearts, greater lung volume per body mass, a higher red blood cell count, and 8 higher hemoglobin.” Neel Burton, The Battle of the Sexes, PSYCHOL. TODAY (July 2, 9 2012), https://www.psychologytoday.com/blog/hide–andseek/201207/the–battle–the–sexes; 10 and 11 WHEREAS, Men also have higher natural levels of testosterone, which affects traits 12 such as hemoglobin levels, body fat content, the storage and use of carbohydrates, and the 13 development of Type 2 muscle fibers, all of which result in men being able to generate 14 higher speed and power during physical activity. Doriane Lambelet Coleman, Sex in Sport, 15 80 LAW AND CONTEMPORARY PROBLEMS 63, 74 (2017) (quoting Gina Kolata, Men, 16 Women and Speed. 2 Words: Got Testosterone?, N.Y. TIMES (Aug. 21, 2008)); and 17 WHEREAS, The biological differences between females and males, especially as they 18 relate to natural levels of testosterone, “explain the male and female secondary sex 19 characteristics which develop during puberty and have lifelong effects, including those most 20 important for success in sport: categorically different strength, speed, and endurance.” 21 Doriane Lambelet Coleman and Wickliffe Shreve, “Comparing Athletic Performances: The 22 Best Elite Women to Boys and Men,” Duke Law Center for Sports Law and Policy, 23 https://web.law.duke.edu/sports/sex–sport/comparative–athletic–performance/; and 24 WHEREAS, While classifications based on sex are generally disfavored, the Supreme 25 Court has recognized that “sex classifications may be used to compensate women for 26 particular economic disabilities [they have] suffered, to promote equal employment 27 opportunity, [and] to advance full development of the talent and capacities of our Nation’s 28 people.” United States v. Virginia, 518 U.S. 515, 533 (1996) (internal citations and 29 quotation marks omitted); and 30 WHEREAS, One place where sex classifications allow for the “full development of 31 the talent and capacities of our Nation’s people” is in the context of sports and athletics; 32 and 33 WHEREAS, Courts have recognized that the inherent, physiological differences 34 between males and females result in different athletic capabilities. See, e.g., Kleczek v. 35 Rhode Island Interscholastic League, Inc., 612 A.2d 734, 738 (R.I. 1992) (“Because of innate 36 physiological differences, boys and girls are not similarly situated as they enter athletic 37 competition.”); Petrie v. Ill. High Sch. Ass’n, 394 N.E.2d 855, 861 (Ill. App. Ct. 1979) (noting 38 that “high school boys [generally possess physiological advantages over] their girl 39 HOUSE BILL 359 3 counterparts” and that those advantages give them an unfair lead over girls in some sports 1 like “high school track”); and 2 WHEREAS, A recent study of female and male Olympic performances since 1983 3 found that, although athletes from both sexes improved over the time span, the “gender 4 gap” between female and male performances remained stable. “These suggest that women’s 5 performances at the high level will never match those of men.” Valerie Thibault, et al., 6 Women and men in sport performance: The gender gap has not evolved since 1983, 9 7 Journal of Sports Science and Medicine 214, 219 (2010); and 8 WHEREAS, As Duke Law professor and All–American track athlete Doriane 9 Coleman, tennis champion Martina Navratilova, and Olympic track gold medalist Sanya 10 Richards–Ross recently wrote: “The evidence is unequivocal that starting in puberty, in 11 every sport except sailing, shooting and riding, there will always be significant numbers of 12 boys and men who would beat the best girls and women in head–to–head competition. 13 Claims to the contrary are simply a denial of science.” Doriane Coleman, Martina 14 Navratilova, et al., Pass the Equality Act, But Don’t Abandon Title IX, WASHINGTON 15 POST (Apr. 29, 2019), https://wapo.st/2VKlNN1; and 16 WHEREAS, The benefits that natural testosterone provides to male athletes are not 17 diminished through the use of puberty blockers and cross–sex hormones. A recent study on 18 the impact of such treatments found that policies like those of the International Olympic 19 Committee that require biological males to undergo at least one year of testosterone 20 suppression before competing in women’s sports do not create a level playing field. “[T]he 21 reduction in testosterone levels required by many sports federation transgender policies is 22 insufficient to remove or reduce the male advantage by any meaningful degree.” For 23 example, “the muscle mass advantage males possess over females, and potentially the 24 performance implications thereof, are not removed by 12 months of testosterone 25 suppression.” Instead, the study concluded that “The data presented here demonstrates 26 that the male physical performance advantage over females, attributed to superior 27 anthropometric and muscle mass/strength parameters achieved at puberty, is not removed 28 by the current regimen of testosterone suppression permitting participation of transgender 29 women in female sports categories. Rather, it appears that the male performance 30 advantage is largely retained by transgender women and thus remains substantial.” 31 Hilton, E.N.; Lundberg, T.R. Transgender Women in The Female Category of Sport: Is the 32 Male Performance Advantage Removed by Testosterone Suppression?. Preprints 2020, 33 2020050226 (doi: 10.20944/preprints202005.0226.v1); and 34 WHEREAS, Having separate sex–specific teams furthers efforts to promote sex 35 equality. Sex–specific teams accomplish this by providing opportunities for female athletes 36 to demonstrate their skill, strength, and athletic abilities while also providing them with 37 opportunities to obtain recognition and accolades, college scholarships, and the numerous 38 other long–term benefits that flow from success in athletic endeavors; now, therefore, 39 SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND, 40 That the Laws of Maryland read as follows: 41 4 HOUSE BILL 359 Article – Education 1 7–118. 2 (A) (1) IN THIS SECTION THE FOLLOWING WORDS HAVE THE MEANINGS 3 INDICATED. 4 (2) “STUDENT OF THE FEMALE SEX” MEANS A STUDENT WHOSE 5 BIOLOGICAL SEX IS FEMALE. 6 (3) “STUDENT OF THE MALE SEX” MEANS A STUDENT WHOSE 7 BIOLOGICAL SEX IS MALE. 8 (B) THIS SECTION APPLIES TO: 9 (1) PUBLIC HIGH SCHOOLS; AND 10 (2) NONPUBLIC HIGH SCHOOLS WHOSE STUDENT ATHLETES OR 11 ATHLETIC TEAMS COMPETE AGAINST STUDENT ATHLETES OR ATHLETIC TEAMS 12 FROM PUBLIC HIGH SCHOOLS IN THE STATE. 13 (C) (1) AN INTERSCHOLASTIC OR INTRAMURAL JUNIOR VARSITY OR 14 VARSITY ATHLETIC TEAM OR SPORT THAT IS SPONSORED BY A PUBLIC OR 15 NONPUBLIC HIGH SCHOOL SHALL BE EXPRESSLY DESIGNATED AS ONE OF THE 16 FOLLOWING BASED ON BIOLOGICAL SEX: 17 (I) A BOYS, MALE, OR MEN’S TEAM OR SPORT; 18 (II) A GIRLS, FEMALE, OR WOMEN’S TEAM OR SPORT; OR 19 (III) A COEDUCATIONAL OR MIXED TEAM OR SPORT. 20 (2) AN INTERSCHOLASTIC OR INTRAMURAL JUNIOR VARSITY OR 21 VARSITY ATHLETIC TEAM OR SPORT DESIGNATED FOR GIRLS, FEMALES, OR WOMEN 22 MAY NOT INCLUDE STUDENTS OF THE MALE SEX. 23 (D) A GOVERNMENTAL ENTITY, A LICENSING OR ACCREDITING 24 ORGANIZATION, OR AN ATHLETIC ASSOCIATION OR ORGANIZATION MAY NOT ACCEPT 25 A COMPLAINT, CONDUCT AN INVESTIGATION, OR TAKE ANY OTHER ADVERSE ACTION 26 AGAINST A SCHOOL OR COUNTY BOARD FOR MAINTAINING SEPARATE 27 INTERSCHOLASTIC OR INTRAMURAL JUNIOR VARSITY OR VARSITY ATHLETIC TEAMS 28 OR SPORTS FOR STUDENTS OF THE FEMALE SEX. 29 HOUSE BILL 359 5 (E) (1) (I) A STUDENT WHO IS DEPRIVED OF AN ATHLETIC 1 OPPORTUNITY OR SUFFERS ANY DIRECT OR INDIRECT HARM AS A RESULT OF A 2 VIOLATION OF THIS SECTION MAY BRING A CIVIL ACTION AGAINST THE SCHOOL THE 3 STUDENT ATTENDS. 4 (II) A STUDENT WHO IS SUBJECT TO RETALIATION OR OTHER 5 ADVERSE ACTION BY A SCHOOL OR AN ATHLETIC ASSOCIATION OR ORGANIZATION 6 AS A RESULT OF REPORTING A VIOLATION OF THIS SECTION TO AN EMPLOYEE OR 7 REPRESENTATIVE OF THE SCHOOL, ATHLETIC ASSOCIATION OR ORGANIZATION, OR 8 ANY STATE OR FEDERAL AGENCY WITH OVERSIGHT OF SCHOOLS IN THE STATE MAY 9 BRING A CIVIL ACTION AGAINST THE SCHOOL OR ATHLETIC ASSOCIATION OR 10 ORGANIZATION. 11 (III) A SCHOOL THAT SUFFERS ANY DIRECT OR INDIRECT HARM 12 FROM A GOVERNMENTAL ENTITY, A LICENSING OR ACCREDITING ORGANIZATION, 13 OR AN ATHLETIC ASSOCIATION OR ORGANIZATION AS A RESULT OF A VIOLATION OF 14 THIS SECTION MAY BRING A CIVIL ACTION AGAINST THE GOVERNMENTAL ENTITY, 15 LICENSING OR ACCREDITING ORGANIZATION, OR ATHLETIC ASSOCIATION OR 16 ORGANIZATION. 17 (2) A CIVIL ACTION INITIATED UNDER THIS SECTION MUST BE 18 INITIATED WITHIN 2 YEARS AFTER THE HARM OCCURRED. 19 (3) AN INDIVIDUAL WHO PREVAILS IN A CIVIL ACTION UNDER THIS 20 SECTION MAY RECOVER: 21 (I) MONETARY DAMAGES, INCLUDING DAMAGES FOR ANY 22 PSYCHOLOGICAL, EMOTIONAL, AND PHYSICAL HARM SUFFERED; 23 (II) REASONABLE ATTORNEY’S FEES AND COSTS; AND 24 (III) ANY OTHER RELIEF, INCLUDING AN INJUNCTION, AS THE 25 COURT MAY DETERMINE APPROPRIATE. 26 (F) THIS SECTION MAY BE KNOWN AND CITED AS THE SAVE WOMEN’S 27 SPORTS ACT OR SELINA’S LAW. 28 SECTION 2. AND BE IT FURTHER ENACTED, That, if any provision of this Act or 29 the application thereof to any person or circumstance is held invalid for any reason in a 30 court of competent jurisdiction, the provision shall be construed to give the provision the 31 maximum effect permitted by law unless the provision is held to be absolutely invalid. 32 SECTION 3. AND BE IT FURTHER ENACTED, That, if any provision of this Act or 33 the application thereof to any person or circumstance is held invalid for any reason in a 34 6 HOUSE BILL 359 court of competent jurisdiction, the invalidity does not affect other provisions or any other 1 application of this Act that can be given effect without the invalid provision or application, 2 and for this purpose the provisions of this Act are declared severable. 3 SECTION 4. AND BE IT FURTHER ENACTED, That this Act shall take effect July 4 1, 2023. 5