Text of NJ S 589 (2022)

SENATE, No. 589 STATE OF NEW JERSEY 220th LEGISLATURE PRE-FILED FOR INTRODUCTION IN THE 2022 SESSION Sponsored by: Senator MICHAEL L. TESTA, JR. District 1 (Atlantic, Cape May and Cumberland) Senator JAMES W. HOLZAPFEL District 10 (Ocean) SYNOPSIS "Fairness in Women's Sports Act." CURRENT VERSION OF TEXT Introduced Pending Technical Review by Legislative Counsel. An Act concerning student participation in school-sanctioned sporting events and supplementing chapter 11 of Title 18A of the New Jersey Statutes. Be It Enacted by the Senate and General Assembly of the State of New Jersey: 1. The Legislature finds and declares that: a. In United States v. Virginia, 518 U.S.515, 533 (1996), the Supreme Court noted that there are "inherent differences between men and women," and 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." b. These "inherent differences" range from chromosomal and hormonal differences to physiological differences. c. Men generally have denser and stronger bones, tendons, and ligaments as well as larger hearts, greater lung volume per body mass, a higher red blood cell count, and higher hemoglobin. d. Men also have 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 2 muscle fibers, all of which result in men being able to generate higher speed and power during physical activity. e. While classifications based on sex are generally disfavored, the court in United States v. Virginia also recognized that "sex classifications may be used to compensate women for particular economic disabilities [they have] suffered, to promote equal employment opportunity, [and] to advance full development of the talent and capacities of our Nation's people." f. 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. g. The biological differences between females and males, especially as they relate to natural levels of testosterone, help to explain the male and female secondary sex characteristics which develop during puberty and have lifelong effects, including those most important for success in sports such as strength, speed, and endurance. h. Courts have recognized that the inherent, physiological differences between males and females result in different athletic capabilities. i. Specifically, the courts have noted that males and females are not similarly situated in athletic competition due to innate physiological differences and that males generally possess physiological advantages over their female competitors. j. A recent study of female and male Olympic performances since 1983 found that, although athletes from both sexes improved over the time span, the "gender gap" between female and male performances remained stable. This suggests that women's performances at the high level will never match those of men. k. The benefits that natural testosterone provides to male athletes is not diminished through the use of puberty blockers and cross-sex hormones. A recent study on the impact of such treatments found that even after 12 months of hormonal therapy, a man who identifies as a woman and is taking cross-sex hormones possesses a significant advantage over female athletes and will still likely have performance benefits over women. l. 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 and accolades, college scholarships, and the numerous other long-term benefits that flow from success in athletic endeavors. 2. a. Interscholastic, intercollegiate, intramural, or club athletic teams or sports that are sponsored by a public or nonpublic school that is a member of the New Jersey State Interscholastic Athletic Association (NJSIAA), or a public institution of higher education or any higher education institution that is a member of the national collegiate athletic association (NCAA), national association of intercollegiate athletics (NAIA), or national junior college athletic association (NJCAA) shall be expressly designated as one of the following based on biological sex: (1) males, men, or boys; (2) females, women, or girls; or (3) coed or mixed. b. Athletic teams or sports designated for females, women, or girls shall not be open to students of the male sex. If a student's sex is disputed, a student shall establish sex by presenting a signed physician's statement that shall indicate the student's sex based solely on: (1) the student's internal and external reproductive anatomy; (2) the student's normal endogenously produced levels of testosterone; and (3) an analysis of the student's genetic makeup. 3. A government entity, any licensing or accrediting organization, or any athletic association or organization shall not entertain a complaint, open an investigation, or take any other adverse action against a school or an institution of higher education for maintaining separate interscholastic, intercollegiate, intramural, or club athletic teams or sports for students of the female sex. 4. a. Any student who is deprived of an athletic opportunity or suffers any direct or indirect harm as a result of a violation of this chapter shall have a private cause of action for injunctive relief, damages, and any other relief available under law against the school or institution of higher education. b. Any student who is subject to retaliation or other adverse action by a school, institution of higher education, or athletic association or organization as a result of reporting a violation of this chapter to an employee or representative of the school, institution, or athletic association or organization, or to any State or federal agency with oversight of schools or institutions of higher education in the State, shall have a private cause of action for injunctive relief, damages, and any other relief available under law against the school, institution, or athletic association or organization. c. Any school or institution of higher education that suffers any direct or indirect harm as a result of a violation of this chapter shall have a private cause of action for injunctive relief, damages, and any other relief available under law against the government entity, licensing or accrediting organization, or athletic association or organization. d. All civil actions permitted under this section shall be initiated within two years after the harm occurred. Persons or organizations who prevail on a claim brought pursuant to this section shall be entitled to monetary damages, including for any psychological, emotional, and physical harm suffered, reasonable attorney's fees and costs, and any other appropriate relief. 5. This act shall take effect immediately. STATEMENT This bill requires that participation in school-sanctioned sports be based on biological sex at birth. It provides that public and nonpublic schools, as well as institutions of higher education, designate athletic or sports teams on the basis of biological sex. The bill also prohibits any athletic teams or sports designated for females, women, or girls from being open to males. In the event the sex of a student is disputed, the student will establish sex by presenting a signed physician's statement that indicates the student's sex based solely on (1) the student's internal and external reproductive anatomy; (2) the student's normal endogenously produced levels of testosterone; and (3) an analysis of the student's genetic makeup. A school or institution of higher education would not be subject to investigation or any adverse action for maintaining separate athletic teams or sports for students of the female sex. Students who are deprived of athletic opportunities or suffer any harm as a result of a violation of the provisions of this bill would have a private cause of action for injunctive relief, damages, or other legal remedy permitted by law against the school or institution of higher education. A student subject to retaliation or any adverse action by his or her school, institution of higher education, or athletic association or organization for reporting a violation of the bill would also have a private right of action against the school, institution of higher education, or athletic association or organization. A school or institution of higher education that suffers any harm as a result of a violation of this bill would likewise have a private cause of action for injunctive relief, damages, or other legal remedy permitted by law. Any student, school, or institution of higher education able to bring suit under this bill would be required to bring their claims within two years after the harm occurred. Students or organizations that prevail on any claim brought pursuant to this bill would be entitled to monetary damages, including damages for any psychological, emotional, and physical harm suffered, reasonable attorney's fees and costs, and any other appropriate relief.