Text of SD HB 1217 (2021)

21.40.21 96th Legislative Session 87 2021 South Dakota Legislature House Bill 1217 Introduced by: Representative Milstead Catchlines are not law. (§ 2-16-13.1) Underscores indicate new language. Overstrikes indicate deleted language. An Act to promote continued fairness in women's sports. 1 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA: 2 Section 1. That a NEW SECTION be added: 3 LEGISLATIVE FINDINGS. 4 The Legislature finds that: 5 (1) "With respect to biological sex, one is either male or female." 6 Arnold De Loof, Only Two Sex Forms but Multiple Gender Variants: How to Explain?, 7 11(1) Communicative & Integrative Biology, (2018), at 8 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5824932; 9 (2) A person's "sex is determined at fertilization and revealed at birth or, increasingly, 10 in utero." 11 Lucy Griffin, et al., Sex, gender and gender identity: a re-evaluation of the 12 evidence, BJPsych Bulletin July 21; 1-9. (2020) at 13 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6677266; 14 (3) "[B]iological differences between males and females are determined genetically 15 during embryonic development." 16 Stefanie Eggers, et al., Mammalian sex determination-insights from humans and 17 mice (2012) Chromosome Research 20(1): 215–238 (2012) at 18 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3279640; 19 (4) "Secondary sex characteristics that develop during puberty . . . generate 20 anatomical divergence beyond the reproductive system, leading to adult body 21 types that are measurably different between sexes." 22 Emma Hilton, et al., Transgender Women in the Female Category of Sport: 23 Perspectives on Testosterone Suppression and Performance Advantage, Sports 24 Med (2020); 25 21.40.21 2 87 Catchlines are not law. (§ 2-16-13.1) Underscores indicate new language. Overstrikes indicate deleted language. (5) There are ""[i]nherent differences" between men and women . . . [and these] 1 "remain cause for celebration, but not for denigration of the members of either sex 2 or for artificial constraints on an individual's opportunity." 3 United States v. Virginia, 518 U.S. 515, 533 (1996); 4 (6) In studies of large cohorts of children from 6 years old, "[b]oys typically scored 5 higher than girls on cardiovascular endurance, muscular strength, muscular 6 endurance, and speed/agility, but lower on flexibility." 7 Konstantinos Tambalis, et al., Physical fitness normative values for 6-18-year-old 8 Greek boys and girls, using the empirical distribution and the lambda, mu, and 9 sigma statistical method (2015) Eur J Sport Sci. Sep;16(6):736-46 at 10 https://pubmed.ncbi.nlm.nih.gov/26402318; see also, M.J. Catley, et al., 11 Normative Health-related fitness values for children: analysis of 85347 test results 12 on 9-17 year old Australians since 1985 (2013) Br J Sports Med. Jan; 47(2) at 13 https://pubmed.ncbi.nlm.nih.gov/22021354; 14 (7) Physiological differences between males and females relevant to sports 15 performance "include a larger body size with more skeletal muscle mass, a lower 16 percentage of body fat, as well as greater maximal delivery of anaerobic and 17 aerobic energy." 18 O. Sandbakk, et al., Sex Differences in World-Record Performance: The Influence 19 of Sport Discipline and Competition Duration (2018) Int J Sports Physiol Perform, 20 Jan 1;13(1):2-8 at https://pubmed.ncbi.nlm.nih.gov/28488921; 21 (8) Physiological differences between males and females include "those most 22 important for success in sport: categorically different strength, speed, and 23 endurance." 24 Doriane Lambelet Coleman, et al., Comparing Athletic Performances – The Best 25 Elite Women to Boys and Men, Duke Center for Sports Law and Policy, at 26 https://web.law.duke.edu/sports/sex-sport/comparative-athletic-performance; 27 (9) Physiological differences between men and women provide competitive sports 28 advantage for men, permitting, among other advantages, "males [being] able to 29 generate higher speed and power during physical activity." 30 Doriane Lambelet Coleman, Sex in Sport, 80 Law and Contemporary Problems 63 31 (2017) at 32 https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4849&context=lcp; 33 21.40.21 3 87 Catchlines are not law. (§ 2-16-13.1) Underscores indicate new language. Overstrikes indicate deleted language. (10) There is a sports performance gap between males and females, such that "the 1 physiological advantages conferred by biological sex appear, on assessment of 2 performance data, insurmountable." 3 Emma Hilton, et al., Transgender Women in the Female Category of Sport: 4 Perspectives on Testosterone Suppression and Performance Advantage, Sports 5 Med (2020); 6 (11) While classifications based on sex are generally disfavored, the United States 7 Supreme Court has recognized that "[s]ex classifications may be used to 8 compensate women "for particular economic disabilities [they have] suffered" . . . 9 " to promot[e] equal employment opportunities, [and] to advance full development 10 of the talent and capacities of our Nation's people . . . . " 11 United States v. Virginia, 518 U.S. 515, 533 (1996); 12 (12) One place where sex classifications allow for the full development of the talent and 13 capacities of our Nation's people is in the context of sports and athletics; 14 (13) Courts have recognized that the inherent, physiological differences between males 15 and females result in different athletic capabilities and have stated that "because 16 of innate physiological differences, boys and girls are not similarly situated as they 17 enter athletic competition . . . ." 18 Kleczek v. Rhode Island Interscholastic League, Inc., 612 A.2d 13 734, 738 (R.I. 19 1992); 20 (14) The benefits that natural testosterone provides to male athletes is not diminished 21 through the use of testosterone suppression. A recent study on the impact of such 22 treatments found that policies like those of the International Olympic Committee 23 requiring biological males to undergo at least one year of testosterone suppression 24 before competing in women's sports do not create a level playing field. "[T]he 25 reduction in testosterone levels required by [policies like those of the International 26 Olympic Committee] is insufficient to remove or reduce the male advantage, in 27 terms of muscle mass and strength, by any meaningful degree." The study 28 concluded that "[t]he data presented here demonstrate that superior 29 anthropometric, muscle mass and strength parameters achieved by males at 30 puberty, and underpinning a consideration portion of the male performance 31 advantage over females, are not removed by the current regimen of testosterone 32 suppression" permitted by the International Olympic Committee and other sports 33 organizations. Rather, the study found that male performance advantage over 34 females "remains substantial." 35 21.40.21 4 87 Catchlines are not law. (§ 2-16-13.1) Underscores indicate new language. Overstrikes indicate deleted language. Emma Hilton, et al., Transgender Women in the Female Category of Sport: 1 Perspectives on Testosterone Suppression and Performance Advantage, Sports 2 Med (2020); and 3 (15) Having separate sex-specific teams furthers the promotion of sex equality by 4 providing opportunities for female athletes to demonstrate their skills, strengths, 5 and athletic abilities, while also providing them with opportunities to obtain 6 accolades, recognition, college scholarships, and numerous other long-term 7 benefits associated with successful athletic endeavors. 8 Section 2. That a NEW SECTION be added: 9 13-67-2. Athletic teams and sports-–Designation by sex--Participation. 10 Any athletic team or sport that is sponsored or sanctioned by a public school, a 11 school district, an association meeting the requirements of § 13-36-4, or an institution of 12 higher education under the control of the Board of Regents or the South Dakota Board of 13 Technical Education must be expressly designated as being: 14 (1) A male team or sport; 15 (2) A female team or sport; or 16 (3) A coeducational team or sport. 17 A team or sport designated as being female is available only to participants who 18 are female, based on their biological sex, as verified in accordance with § 13-67-3. 19 Section 3. That a NEW SECTION be added: 20 13-67-3. Annual statement--False statement as cause for removal. 21 Once each school year and before permitting a student to participate on an athletic 22 team or in a sport, the sponsoring or sanctioning entity shall obtain a written statement 23 verifying: 24 (1) The student's age; 25 (2) The student's biological sex, as ascertained at or before birth in accordance with 26 the student's genetics and reproductive biology; and 27 (3) That the student is not taking and has not taken, during the preceding twelve 28 months, any performance enhancing drugs, including anabolic steroids. 29 The statement must be signed by the student's parent, if the student is under 30 eighteen years of age or by the student, if the student is eighteen years of age or older. 31 If a sponsoring or sanctioning entity has reasonable cause to believe that any 32 information provided in accordance with this section is false or misleading, the entity may 33 21.40.21 5 87 Catchlines are not law. (§ 2-16-13.1) Underscores indicate new language. Overstrikes indicate deleted language. remove the student from, and prohibit further participation in, any sport or on any athletic 1 team for the duration of the school year. 2 Section 4. That a NEW SECTION be added: 3 13-67-4. Complaint--Investigation--Adverse action. 4 A governmental entity, licensing or accrediting organization, or athletic association 5 or organization may not entertain a complaint, open an investigation, or take any adverse 6 action against a school, a school district, or an institution of higher education, or against 7 any person employed by, or a governing board member of, such a school, school district, 8 or institution, for maintaining athletic teams or sports in accordance with § 13-67-2. 9 Section 5. That a NEW SECTION be added: 10 13-67-5. Cause of Action. 11 If a student is deprived of an athletic opportunity or if a student suffers direct or 12 indirect harm, as a result of this Act being violated, that student has a private cause of 13 action for injunctive relief, damages, and any other relief available under law, against the 14 violating entity. 15 If a student is subjected to retaliation or other adverse action, as a result of 16 reporting a violation of this Act to an employee or representative of a school, school 17 district, institution of higher education, athletic association or organization, or to a state 18 or federal governmental entity having oversight authority, that student has a private cause 19 of action for injunctive relief, damages, and any other relief available under law, against 20 the school, school district, institution of higher education, or athletic association or 21 organization. 22 If a school, school district, or institution of higher education suffers any direct or 23 indirect harm, as a result of this Act being violated, that school, school district, or 24 institution of higher education has a private cause of action for injunctive relief, damages, 25 and any other relief available under law, against the governmental entity, licensing or 26 accrediting organization, or athletic association or organization. 27 A civil action under this section must be initiated within two years from the date 28 the harm occurred. 29 Any person prevailing on a claim brought under this section is entitled to monetary 30 damages, including for psychological, emotional, and physical harm suffered, reasonable 31 attorney's fees and costs, and any other appropriate relief. 32