Text of MD HB 757 (2022)

EXPLANATION: CAPITALS INDICATE MATTER ADDED TO EXISTING LAW. [Brackets] indicate matter deleted from existing law. *hb0757* HOUSE BILL 757 F1, D5 2lr1981 By: Delegates Szeliga, Arikan, Boteler, Chisholm, M. Fisher, Grammer, Kittleman, Krebs, Mangione, McComas, Morgan, Parrott, Reilly, Rose, Shoemaker, Thiam, and Wivell Introduced and read first time: February 3, 2022 Assigned to: Ways and Means A BILL ENTITLED AN ACT concerning 1 Education – Interscholastic and Intramural Teams and Sports – Designation 2 Based on Biological Sex 3 (Save Women’s Sports Act) 4 FOR the purpose of requiring certain interscholastic and intramural athletic teams or 5 sports sponsored by certain schools to be expressly designated based on biological 6 sex; prohibiting certain entities from taking certain adverse actions against a school 7 or county board of education for maintaining separate interscholastic and intramural 8 athletic teams and sports for students of the female sex; providing that certain 9 individuals have the right to bring a civil action under certain circumstances; and 10 generally relating to interscholastic and intramural teams and sports of public and 11 nonpublic schools. 12 BY adding to 13 Article – Education 14 Section 7–129 15 Annotated Code of Maryland 16 (2018 Replacement Volume and 2021 Supplement) 17 Preamble 18 WHEREAS, The General Assembly finds that there are two biological sexes, female 19 and male, and that a person’s sex is objectively determined by genetics and anatomy 20 existing at the time of birth; and 21 WHEREAS, There are “[i]nherent differences between men and women,” and that 22 these differences “remain cause for celebration, but not for denigration of the members of 23 either sex or for artificial constraints on an individual’s opportunity.” United States v. 24 Virginia, 518 U.S. 515, 533 (1996); and 25 2 HOUSE BILL 757 WHEREAS, The “inherent differences” between men and women range from 1 chromosomal and hormonal differences to physiological differences; and 2 WHEREAS, Men generally have “denser, stronger bones, tendons, and ligaments” 3 and “larger hearts, greater lung volume per body mass, a higher red blood cell count, and 4 higher hemoglobin.” Neel Burton, The Battle of the Sexes, PSYCHOL. TODAY (July 2, 5 2012), https://www.psychologytoday.com/blog/hide–andseek/201207/the–battle–the–sexes; 6 and 7 WHEREAS, Men also have higher natural levels of testosterone, which affects traits 8 such as hemoglobin levels, body fat content, the storage and use of carbohydrates, and the 9 development of Type 2 muscle fibers, all of which result in men being able to generate 10 higher speed and power during physical activity. Doriane Lambelet Coleman, Sex in Sport, 11 80 LAW AND CONTEMPORARY PROBLEMS 63, 74 (2017) (quoting Gina Kolata, Men, 12 Women and Speed. 2 Words: Got Testosterone?, N.Y. TIMES (Aug. 21, 2008)); and 13 WHEREAS, The biological differences between females and males, especially as they 14 relate to natural levels of testosterone, “explain the male and female secondary sex 15 characteristics which develop during puberty and have lifelong effects, including those most 16 important for success in sport: categorically different strength, speed, and endurance.” 17 Doriane Lambelet Coleman and Wickliffe Shreve, “Comparing Athletic Performances: The 18 Best Elite Women to Boys and Men,” Duke Law Center for Sports Law and Policy, 19 https://web.law.duke.edu/sports/sex–sport/comparative–athletic–performance/; and 20 WHEREAS, While classifications based on sex are generally disfavored, the Supreme 21 Court has recognized that “sex classifications may be used to compensate women for 22 particular economic disabilities [they have] suffered, to promote equal employment 23 opportunity, [and] to advance full development of the talent and capacities of our Nation’s 24 people.” United States v. Virginia, 518 U.S. 515, 533 (1996) (internal citations and 25 quotation marks omitted); and 26 WHEREAS, One place where sex classifications allow for the “full development of 27 the talent and capacities of our Nation’s people” is in the context of sports and athletics; 28 and 29 WHEREAS, Courts have recognized that the inherent, physiological differences 30 between males and females result in different athletic capabilities. See, e.g., Kleczek v. 31 Rhode Island Interscholastic League, Inc., 612 A.2d 734, 738 (R.I. 1992) (“Because of innate 32 physiological differences, boys and girls are not similarly situated as they enter athletic 33 competition.”); Petrie v. Ill. High Sch. Ass’n, 394 N.E.2d 855, 861 (Ill. App. Ct. 1979) (noting 34 that “high school boys [generally possess physiological advantages over] their girl 35 counterparts” and that those advantages give them an unfair lead over girls in some sports 36 like “high school track”); and 37 WHEREAS, A recent study of female and male Olympic performances since 1983 38 found that, although athletes from both sexes improved over the time span, the “gender 39 HOUSE BILL 757 3 gap” between female and male performances remained stable. “These suggest that women’s 1 performances at the high level will never match those of men.” Valerie Thibault, et al., 2 Women and men in sport performance: The gender gap has not evolved since 1983, 9 3 Journal of Sports Science and Medicine 214, 219 (2010); and 4 WHEREAS, As Duke Law professor and All–American track athlete Doriane 5 Coleman, tennis champion Martina Navratilova, and Olympic track gold medalist Sanya 6 Richards–Ross recently wrote: “The evidence is unequivocal that starting in puberty, in 7 every sport except sailing, shooting and riding, there will always be significant numbers of 8 boys and men who would beat the best girls and women in head–to–head competition. 9 Claims to the contrary are simply a denial of science.” Doriane Coleman, Martina 10 Navratilova, et al., Pass the Equality Act, But Don’t Abandon Title IX, WASHINGTON 11 POST (Apr. 29, 2019), https://wapo.st/2VKlNN1; and 12 WHEREAS, The benefits that natural testosterone provides to male athletes are not 13 diminished through the use of puberty blockers and cross–sex hormones. A recent study on 14 the impact of such treatments found that policies like those of the International Olympic 15 Committee that require biological males to undergo at least one year of testosterone 16 suppression before competing in women’s sports do not create a level playing field. “[T]he 17 reduction in testosterone levels required by many sports federation transgender policies is 18 insufficient to remove or reduce the male advantage by any meaningful degree.” For 19 example, “the muscle mass advantage males possess over females, and potentially the 20 performance implications thereof, are not removed by 12 months of testosterone 21 suppression.” Instead, the study concluded that “The data presented here demonstrates 22 that the male physical performance advantage over females, attributed to superior 23 anthropometric and muscle mass/strength parameters achieved at puberty, is not removed 24 by the current regimen of testosterone suppression permitting participation of transgender 25 women in female sports categories. Rather, it appears that the male performance 26 advantage is largely retained by transgender women and thus remains substantial.” 27 Hilton, E.N.; Lundberg, T.R. Transgender Women in The Female Category of Sport: Is the 28 Male Performance Advantage Removed by Testosterone Suppression?. Preprints 2020, 29 2020050226 (doi: 10.20944/preprints202005.0226.v1); and 30 WHEREAS, Having separate sex–specific teams furthers efforts to promote sex 31 equality. Sex–specific teams accomplish this by providing opportunities for female athletes 32 to demonstrate their skill, strength, and athletic abilities while also providing them with 33 opportunities to obtain recognition and accolades, college scholarships, and the numerous 34 other long–term benefits that flow from success in athletic endeavors; now, therefore, 35 SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND, 36 That the Laws of Maryland read as follows: 37 Article – Education 38 7–129. 39 4 HOUSE BILL 757 (A) (1) IN THIS SECTION THE FOLLOWING WORDS HAVE THE MEANINGS 1 INDICATED. 2 (2) “STUDENT OF THE FEMALE SEX” MEANS A STUDENT WHOSE 3 BIOLOGICAL SEX IS FEMALE. 4 (3) “STUDENT OF THE MALE SEX” MEANS A STUDENT WHOSE 5 BIOLOGICAL SEX IS MALE. 6 (B) THIS SECTION APPLIES TO: 7 (1) PUBLIC SCHOOLS; AND 8 (2) NONPUBLIC SCHOOLS WHOSE STUDENT ATHLETES OR ATHLETIC 9 TEAMS COMPETE AGAINST STUDENT ATHLETES OR ATHLETIC TEAMS FROM PUBLIC 10 SCHOOLS IN THE STATE. 11 (C) (1) AN INTERSCHOLASTIC OR INTRAMURAL ATHLETIC TEAM OR 12 SPORT THAT IS SPONSORED BY A PUBLIC OR NONPUBLIC SCHOOL SHALL BE 13 EXPRESSLY DESIGNATED AS ONE OF THE FOLLOWING BASED ON BIOLOGICAL SEX: 14 (I) A BOYS, MALE, OR MEN’S TEAM OR SPORT; 15 (II) A GIRLS, FEMALE, OR WOMEN’S TEAM OR SPORT; OR 16 (III) A COEDUCATIONAL OR MIXED TEAM OR SPORT. 17 (2) AN INTERSCHOLASTIC OR INTRAMURAL ATHLETIC TEAM OR 18 SPORT DESIGNATED FOR GIRLS, FEMALES, OR WOMEN MAY NOT INCLUDE STUDENTS 19 OF THE MALE SEX. 20 (D) A GOVERNMENTAL ENTITY, A LICENSING OR ACCREDITING 21 ORGANIZATION, OR AN ATHLETIC ASSOCIATION OR ORGANIZATION MAY NOT ACCEPT 22 A COMPLAINT, CONDUCT AN INVESTIGATION, OR TAKE ANY OTHER ADVERSE ACTION 23 AGAINST A SCHOOL OR COUNTY BOARD FOR MAINTAINING SEPARATE 24 INTERSCHOLASTIC OR INTRAMURAL ATHLETIC TEAMS OR SPORTS FOR STUDENTS 25 OF THE FEMALE SEX. 26 (E) (1) (I) A STUDENT WHO IS DEPRIVED OF AN ATHLETIC 27 OPPORTUNITY OR SUFFERS ANY DIRECT OR INDIRECT HARM AS A RESULT OF A 28 VIOLATION OF THIS SECTION MAY BRING A CIVIL ACTION AGAINST THE SCHOOL THE 29 STUDENT ATTENDS. 30 HOUSE BILL 757 5 (II) A STUDENT WHO IS SUBJECT TO RETALIATION OR OTHER 1 ADVERSE ACTION BY A SCHOOL OR AN ATHLETIC ASSOCIATION OR ORGANIZATION 2 AS A RESULT OF REPORTING A VIOLATION OF THIS SECTION TO AN EMPLOYEE OR 3 REPRESENTATIVE OF THE SCHOOL, ATHLETIC ASSOCIATION OR ORGANIZATION, OR 4 ANY STATE OR FEDERAL AGENCY WITH OVERSIGHT OF SCHOOLS IN THE STATE MAY 5 BRING A CIVIL ACTION AGAINST THE SCHOOL OR ATHLETIC ASSOCIATION OR 6 ORGANIZATION. 7 (III) A SCHOOL THAT SUFFERS ANY DIRECT OR INDIRECT HARM 8 FROM A GOVERNMENTAL ENTITY, A LICENSING OR ACCREDITING ORGANIZATION, 9 OR AN ATHLETIC ASSOCIATION OR ORGANIZATION AS A RESULT OF A VIOLATION OF 10 THIS SECTION MAY BRING A CIVIL ACTION AGAINST THE GOVERNMENTAL ENTITY, 11 LICENSING OR ACCREDITING ORGANIZATION, OR ATHLETIC ASSOCIATION OR 12 ORGANIZATION. 13 (2) A CIVIL ACTION INITIATED UNDER THIS SECTION MUST BE 14 INITIATED WITHIN 2 YEARS AFTER THE HARM OCCURRED. 15 (3) AN INDIVIDUAL WHO PREVAILS IN A CIVIL ACTION UNDER THIS 16 SECTION MAY RECOVER: 17 (I) MONETARY DAMAGES, INCLUDING DAMAGES FOR ANY 18 PSYCHOLOGICAL, EMOTIONAL, AND PHYSICAL HARM SUFFERED; 19 (II) REASONABLE ATTORNEY’S FEES AND COSTS; AND 20 (III) ANY OTHER RELIEF, INCLUDING AN INJUNCTION, AS THE 21 COURT MAY DETERMINE APPROPRIATE. 22 (F) THIS SECTION MAY BE KNOWN AND CITED AS THE SAVE WOMEN’S 23 SPORTS ACT OR SELINA’S LAW. 24 SECTION 2. AND BE IT FURTHER ENACTED, That, if any provision of this Act or 25 the application thereof to any person or circumstance is held invalid for any reason in a 26 court of competent jurisdiction, the provision shall be construed to give the provision the 27 maximum effect permitted by law unless the provision is held to be absolutely invalid. 28 SECTION 3. 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 invalidity does not affect other provisions or any other 31 application of this Act that can be given effect without the invalid provision or application, 32 and for this purpose the provisions of this Act are declared severable. 33 6 HOUSE BILL 757 SECTION 4. AND BE IT FURTHER ENACTED, That this Act shall take effect July 1 1, 2022. 2