Text of NC H 358 (2021)

GENERAL ASSEMBLY OF NORTH CAROLINA SESSION 2021 H D HOUSE BILL DRH10141-MK-55A Short Title: Save Women's Sports Act. (Public) Sponsors: Representatives Brody, McElraft, Wheatley, and Dixon (Primary Sponsors). Referred to: *DRH10141-MK-55A* A BILL TO BE ENTITLED 1 AN ACT TO ENACT THE SAVE WOMEN'S SPORTS ACT TO PROTECT THE 2 OPPORTUNITIES FOR WOMEN AND GIRLS IN ATHLETICS BY ENSURING 3 WOMEN ARE NOT FORCED TO COMPETE AGAINST MEN PLAYING ON WOMEN'S 4 SPORTS TEAMS. 5 Whereas, there are ""[i]nherent differences" between men and women," and that these 6 differences "remain cause for celebration, but not for denigration of the members of either sex or 7 for artificial constraints on an individual's opportunity." United States v. Virginia, 518 U.S. 515, 8 533 (1996); and 9 Whereas, these "inherent differences" range from chromosomal and hormonal 10 differences to physiological differences; and 11 Whereas, men generally have "denser, stronger bones, tendons, and ligaments" and 12 "larger hearts, greater lung volume per body mass, a higher red blood cell count, and higher 13 hemoglobin." Neel Burton, The Battle of the Sexes, PSYCHOL. TODAY, (July 2, 2012), 14 https://www.psychologytoday.com/us/blog/hide-and-seek/201207/the-battle-the-sexes; and 15 Whereas, men also have higher natural levels of testosterone, which affects traits such 16 as hemoglobin levels, body fat content, the storage and use of carbohydrates, and the 17 development of Type 2 muscle fibers, all of which result in men being able to generate higher 18 speed and power during physical activity. Doriane Lambelet Coleman, Sex in Sport, 80 LAW & 19 CONTEMPORARY PROBLEMS 63, 74 (2017) (quoting Gina Kolata, Men, Women and Speed. 20 2 Words: Got Testosterone?, N.Y. TIMES, Aug. 21, 2008); and 21 Whereas, the biological differences between females and males, especially as they 22 relate to natural levels of testosterone, "explain the male and female secondary sex characteristics 23 which develop during puberty and have lifelong effects, including those most important for 24 success in sport: categorically different strength, speed, and endurance." Doriane Lambelet 25 Coleman & Wickliffe Shreve, "Comparing Athletic Performances: The Best Elite Women to 26 Boys and Men," Duke Law Center for Sports Law and Policy, 27 https://web.law.duke.edu/sports/sex-sport/comparative-athletic-performance; and 28 Whereas, while classifications based on sex are generally disfavored, the United 29 States Supreme Court has recognized that "[s]ex classifications may be used to compensate 30 women for particular economic disabilities [they have] suffered, to promote equal employment 31 opportunity, [and] to advance full development of the talent and capacities of our Nation's 32 people." United States v. Virginia, 518 U.S. 515, 533 (1996) (internal citations and quotation 33 marks omitted); and 34 Whereas, one place where sex classifications allow for the "full development of the 35 talent and capacities of our Nation's people" is in the context of sports and athletics; and 36 H.B. 358 Mar 22, 2021 HOUSE PRINCIPAL CLERK General Assembly Of North Carolina Session 2021 Page 2 DRH10141-MK-55A Whereas, courts have recognized that the inherent, physiological differences between 1 males and females result in different athletic capabilities. See, e.g., Kleczek v. R.I. Interscholastic 2 League, Inc., 612 A.2d 734, 738 (R.I. 1992) ("Because of innate physiological differences, boys 3 and girls are not similarly situated as they enter athletic competition."); Petrie v. Ill. High Sch. 4 Ass'n, 394 N.E.2d 855, 861 (Ill. App. Ct. 1979) (noting that "high school boys [generally possess 5 physiological advantages over] their girl counterparts" and that those advantages give them an 6 unfair lead over girls in some sports like "high school track"); and 7 Whereas, a recent study of female and male Olympic performances since 1983 found 8 that, although athletes from both sexes improved over the time span, the "gender gap" between 9 female and male performances remained stable. "These suggest that women's performances at 10 the high level will never match those of men." Valerie Thibault, et al., Women and Men in Sport 11 Performance: The Gender Gap has not Evolved since 1983, 9 J. SPORTS SCI. & MED. 214, 12 219 (2010); and 13 Whereas, as Duke Law professor and all-American track athlete Doriane Coleman, 14 tennis champion Martina Navratilova and Olympic track gold medalist Sanya Richards-Ross 15 recently wrote: "The evidence is unequivocal that starting in puberty, in every sport except 16 sailing, shooting and riding, there will always be significant numbers of boys and men who would 17 beat the best girls and women in head-to-head competition. Claims to the contrary are simply a 18 denial of science." Doriane Coleman, Martina Navratilova, et al., Pass the Equality Act, But Don't 19 Abandon Title IX, WASHINGTON POST, (Apr. 29, 2019), https://wapo.st/2VKlNN1; and 20 Whereas, the benefits that natural testosterone provides to male athletes are not 21 diminished through the use of puberty blockers and cross-sex hormones. A recent study on the 22 impact of such treatments found that policies like those of the International Olympic Committee 23 that require biological males to undergo at least one year of testosterone suppression before 24 competing in women's sports do not create a level playing field. "[T]he reduction in testosterone 25 levels required by many sports federation transgender policies is insufficient to remove or reduce 26 the male advantage by any meaningful degree." For example, "the muscle mass advantage males 27 possess over females, and potentially the performance implications thereof, are not removed by 28 12 months of testosterone suppression." Instead, the study concluded that "The data presented 29 here demonstrates that the male physical performance advantage over females, attributed to 30 superior anthropometric and muscle mass/strength parameters achieved at puberty, is not 31 removed by the current regimen of testosterone suppression permitting participation of 32 transgender women in female sports categories. Rather, it appears that the male performance 33 advantage is largely retained by transgender women and thus remains substantial." Hilton, E.N.; 34 Lundberg, T.R. Transgender Women in The Female Category of Sport: Is the Male Performance 35 Advantage Removed by Testosterone Suppression?. Preprints 2020, 2020050226 (doi: 36 10.20944/preprints202005.0226.v1); and 37 Whereas, having separate sex-specific teams furthers efforts to promote sex equality. 38 Sex-specific teams accomplish this by providing opportunities for female athletes to demonstrate 39 their skill, strength, and athletic abilities while also providing them with opportunities to obtain 40 recognition and accolades, college scholarships, and the numerous other long-term benefits that 41 flow from success in athletic endeavors; Now, therefore, 42 The General Assembly of North Carolina enacts: 43 SECTION 1. This act shall be known as "The Save Women's Sports Act." 44 SECTION 2.(a) Chapter 115C of the General Statutes is amended by adding a new 45 Article to read: 46 "Article 29E. 47 "Biological Sex-Specific Athletic Teams. 48 "§ 115C-407.40. Designation of athletic teams. 49 General Assembly Of North Carolina Session 2021 DRH10141-MK-55A Page 3 (a) All athletic teams for middle and secondary school students participating in 1 interscholastic or intramural athletic activities conducted by a public school unit shall be 2 expressly designated as one of the following based on biological sex: 3 (1) Males, men, or boys. 4 (2) Females, women, or girls. 5 (3) Coed or mixed. 6 (b) Athletic teams or sports designated for females, women, or girls shall not be open to 7 students of the male sex. 8 (c) Sex shall be recognized based solely on a person's reproductive biology and genetics 9 at birth. 10 "§ 115C-407.41. Protection for schools. 11 No governmental entity, licensing or accrediting organization, or athletic association or 12 organization shall consider a complaint, open an investigation, or take an adverse action against 13 a school or public school unit for maintaining separate athletic teams or sports for students of the 14 female sex in accordance with this Article. 15 "§ 115C-407.42. Cause of action; remedies. 16 (a) A biological female student who is deprived of an athletic opportunity or suffers or is 17 likely to suffer from any direct or indirect harm as a result of a violation of this Article may assert 18 that violation as a cause of action for remedies provided for in subsection (d) of this section. 19 (b) A biological female student who is subjected to retaliation or other adverse action by 20 a public school unit, athletic association, or other organization as a result of reporting a violation 21 of this Article to an employee or representative of the public school unit, athletic association, or 22 to any local, State, or federal agency with oversight of the public school unit shall have a cause 23 of action for remedies provided for in subsection (d) of this section. 24 (c) Any public school unit or its representatives or employees who suffer any direct or 25 indirect harm for prohibiting a biological male student from participating on a female, girls', or 26 women's athletic team pursuant to the requirements of this Article shall have a cause of action 27 for remedies provided for in subsection (d) of this section. 28 (d) Any person who brings a cause of action pursuant to this Article may obtain 29 appropriate relief, including the following: 30 (1) Injunctive relief, protective order, writ of mandamus or prohibition, or 31 declaratory relief to prevent any violation of this Article. 32 (2) Actual damages, including for psychological, emotional, or physical harm, 33 reasonable attorney fees, and costs. 34 (e) All civil actions under this Article must be initiated within two years from the date 35 that the harm occurred." 36 SECTION 2.(b) G.S. 115C-12(23) reads as rewritten: 37 "(23) Power to Adopt Eligibility Rules for Interscholastic Athletic Competition. – 38 The State Board of Education shall adopt rules governing interscholastic 39 athletic activities conducted by local boards of education, including eligibility 40 for student participation. participation and designation of teams consistent 41 with the provisions of Article 29E of this Chapter. With regard to middle 42 schools and high schools, the rules shall provide for the following: 43 …." 44 SECTION 2.(c) G.S. 115C-218.75 is amended by adding a new subsection to read: 45 "(i) Biological Sex-Specific Athletic Teams. – Article 29E of this Chapter shall apply to 46 a charter school organizing athletic teams for middle or secondary school students to participate 47 in interscholastic or intramural athletic activities." 48 SECTION 3. Article 39 of Chapter 115C of the General Statutes is amended by 49 adding a new section to read: 50 "§ 115C-566.10. Biological sex-specific athletic teams. 51 General Assembly Of North Carolina Session 2021 Page 4 DRH10141-MK-55A Article 29E of this Chapter shall apply to any nonpublic school that is a member of a 1 State-level association, including the North Carolina High School Athletic Association 2 (NCHSAA), that governs participation in interscholastic athletic activities at the high school 3 level." 4 SECTION 4. Chapter 116 of the General Statutes is amended by adding a new 5 Article to read: 6 "Article 38. 7 "Biological Sex-Specific Athletic Teams. 8 "§ 116-400. Definitions. 9 The following definitions apply in this Article: 10 (1) Institution of higher education. – A constituent institution of The University 11 of North Carolina, a community college under the jurisdiction of the State 12 Board of Community Colleges, or a private college or university located in 13 North Carolina. 14 (2) Intercollegiate athletic program. – A sport program played at the collegiate 15 level for which eligibility requirements for participation by a student are 16 established by a national association for the promotion or regulation of 17 intercollegiate athletics, including the National Collegiate Athletic 18 Association (NCAA), the National Association of Intercollegiate Athletics 19 (NAIA), and the National Junior College Athletic Association (NJCAA). 20 (3) Intramural athletics. – Recreational sports organized by a constituent 21 institution of The University of North Carolina or a community college under 22 the jurisdiction of the State Board of Community Colleges. 23 "§ 116-401. Designation of athletic teams. 24 (a) All intramural athletic teams and teams that are part of an intercollegiate athletic 25 program of an institution of higher education shall be expressly designated as one of the 26 following based on biological sex: 27 (1) Males, men, or boys. 28 (2) Females, women, or girls. 29 (3) Coed or mixed. 30 (b) Athletic teams or sports designated for females, women, or girls shall not be open to 31 students of the male sex. 32 (c) Sex shall be recognized based solely on a person's reproductive biology and genetics 33 at birth. 34 "§ 116-402. Protection for institutions of higher education. 35 No governmental entity, licensing or accrediting organization, or athletic association or 36 organization shall consider a complaint, open an investigation, or take an adverse action against 37 an institution of higher education for maintaining separate athletic teams or sports for students of 38 the female sex in accordance with this Article. 39 "§ 116-403. Cause of action; remedies. 40 (a) A biological female student who is deprived of an athletic opportunity or suffers or is 41 likely to suffer from any direct or indirect harm as a result of a violation of this Article may assert 42 that violation as a cause of action for remedies provided for in subsection (d) of this section. 43 (b) A biological female student who is subjected to retaliation or other adverse action by 44 an institution of higher education, athletic association, or other organization as a result of 45 reporting a violation of this Article to an employee or representative of the institution of higher 46 education, athletic association, or to any local, State, or federal agency with oversight of the 47 institution shall have a cause of action for remedies provided for in subsection (d) of this section. 48 (c) Any institution of higher education or its representatives or employees who suffer any 49 direct or indirect harm for prohibiting a biological male student from participating on a female, 50 General Assembly Of North Carolina Session 2021 DRH10141-MK-55A Page 5 girls', or women's athletic team pursuant to the requirements of this Article shall have a cause of 1 action for remedies provided for in subsection (d) of this section. 2 (d) Any person who brings a cause of action pursuant to this Article may obtain 3 appropriate relief, including the following: 4 (1) Injunctive relief, protective order, writ of mandamus or prohibition, or 5 declaratory relief to prevent any violation of this Article. 6 (2) Actual damages, including for psychological, emotional, or physical harm, 7 reasonable attorney fees, and costs. 8 (e) All civil actions under this Article must be initiated within two years from the date 9 that the harm occurred." 10 SECTION 5. If any section or provision of this act is declared unconstitutional or 11 invalid by the courts, it does not affect the validity of this act as a whole or any part other than 12 the part so declared to be unconstitutional or invalid. 13 SECTION 6. This act is effective when it becomes law. Sections 2 and 3 of this act 14 apply beginning with the 2021-2022 school year. Section 4 of this act applies beginning with the 15 2021-2022 academic year. 16