Text of WV HB 3293 (2021)

WEST virginia legislature 2021 regular session Originating House Bill 3293 By Delegates Hanna, Bridges, Clark, ellington, Horst, Jennings, Longanacre, Mazzocchi and tully [Originating in the Committee on Education; Reported on March 16, 2021] A BILL to amend and reenact §18-2-5c and §18-2-25 of the Code of West Virginia, 1931, as amended, all relating to single-sex participation in interscholastic athletic events; providing that the birth certificate required for admission to public school confirm the pupil’s sex at time of birth, or in the alternative, that the pupil’s sex be identified by a signed physician’s statement; providing that the sex identified at the time of admission must be the pupil’s sex for the purposes of single-sex participation in interscholastic athletic events under the control, supervision, and regulation of the West Virginia Secondary Schools Activities Commission; providing that the commission must verify with each county board that each student participating in single-sex interscholastic events is participating according to the student’s sex at the time of the student's birth; and clarifying that these requirements do not apply to co-educational secondary school interscholastic athletic events. Be it enacted by the Legislature of West Virginia: §18-2-5c. Birth certificate required upon admission to public school; required notice to local law-enforcement agency of missing children; identifying pupil’s sex for the purpose of participating in single-sex interscholastic athletic events. (a) No pupil shall be admitted for the first time to any public school in this state unless the person enrolling the pupil presents a copy of the pupil's original birth record certified by the state registrar of vital statistics confirming the pupil's identity, age, sex at time of birth, and state file number of the original birth record. If a certified copy of the pupil's birth record cannot be obtained, the person so enrolling the pupil shall submit: (1) an An affidavit explaining the inability to produce a certified copy of the birth record: Provided, That if any person submitting such affidavit is in U.S. military service and is in transit due to military orders, a three-week extension shall be granted to such person for providing the birth records; and (2) A signed physician’s statement indicating the pupil’s sex based solely on the pupil’s unaltered internal and external reproductive anatomy. (b) Upon the failure of any person enrolling a pupil to furnish a certified copy of the pupil's birth record in conformance with subsection (a) above, the principal of the school in which the pupil is being enrolled or his or her designee shall immediately notify the local law-enforcement agency. The notice to the local law-enforcement agency shall include copies of the submitted proof of the pupil's identity, and age, and sex at time of birth and the affidavit explaining the inability to produce a certified copy of the birth record. (c) Within fourteen days after enrolling a transferred pupil, the principal of the school in which the pupil has been enrolled or his or her designee shall request that the principal or his or her designee of the school in which the pupil was previously enrolled transfer a certified copy of the pupil's birth record. (d) Principals and their designees shall be immune from any civil or criminal liability in connection with any notice to a local law-enforcement agency of a pupil lacking a birth certificate or failure to give such notice as required by this section. (e) The sex identified in subsection (a) above shall be the pupil’s sex for the purposes of participating in single-sex secondary school interscholastic athletic events under the control, supervision, and regulation of the West Virginia Secondary Schools Activities Commission pursuant to §18-2-25 of this code. §18-2-25. Authority of county boards to regulate athletic and other extracurricular activities of secondary schools; delegation of authority to West Virginia Secondary School Activities Commission; authority of commission; approval of rules by state board; incorporation; funds; participation by private and parochial schools, and by home-schooled students and by preparatory athletic programs; student participation in single-sex secondary school interscholastic athletic events. (a) The county boards of education shall exercise the control, supervision, and regulation of all interscholastic athletic events, and other extracurricular activities of the students in public secondary schools, and of those schools of their respective counties. The county board of education may delegate control, supervision, and regulation of interscholastic athletic events and band activities to the West Virginia Secondary School Activities Commission. (b) The West Virginia Secondary School Activities Commission is composed of the principals, or their representatives, of those secondary schools whose county boards of education have certified in writing to the State Superintendent of Schools that they have elected to delegate the control, supervision, and regulation of their interscholastic athletic events and band activities of the students in the public secondary schools in their respective counties to the commission. The West Virginia Secondary School Activities Commission may exercise the control, supervision, and regulation of interscholastic athletic events and band activities of secondary schools, delegated to it pursuant to this section. The rules of the West Virginia Secondary School Activities Commission shall contain a provision for a proper review procedure and review board and be promulgated in accordance with the provisions of chapter 29A of this code, but shall, in all instances, be subject to the prior approval of the state board. The West Virginia Secondary School Activities Commission, may, with the consent of the State Board of Education, incorporate under the name of West Virginia Secondary School Activities Commission, Inc., as a nonprofit, nonstock corporation under the provisions of chapter 31 of this code. County boards of education may expend moneys for and pay dues to the West Virginia Secondary School Activities Commission, and all moneys paid to the commission, as well as moneys derived from any contest or other event sponsored by the commission, are quasi-public funds as defined in §18-5-1 et seq. of this code, and the funds of the commission are subject to an annual audit by the State Tax Commissioner. (c) The West Virginia Secondary School Activities Commission shall promulgate reasonable rules providing for the control, supervision, and regulation of the interscholastic athletic events and other extracurricular activities of private and parochial secondary schools as elect to delegate to the commission control, supervision, and regulation, upon the same terms and conditions, subject to the same rules and requirements and upon the payment of the same fees and charges as those provided for public secondary schools. Any such private or parochial secondary school shall receive any monetary or other benefits in the same manner and in the same proportion as any public secondary school. (d) Notwithstanding any other provision of this section, or the commission’s rules, the commission shall consider eligible for participation in interscholastic athletic events and other extracurricular activities of secondary schools a student who is receiving home instruction pursuant to §18-8-1(c) of this code and who: (1) Has demonstrated satisfactory evidence of academic progress for one year in compliance with the provisions of that subsection: Provided, That the student’s average test results are within or above the fourth stanine in all subject areas; (2) Is enrolled in at least one virtual instructional course per semester, consistent with the applicable virtual instruction policy of the county board in which the home-schooled student lives and the State Board; (3) Has not reached the age of 19 by August 1 of the current school year; (4) Is an amateur who receives no compensation but participates solely for the educational, physical, mental and social benefits of the activity; (5) Agrees to comply with all disciplinary rules of the West Virginia Secondary School Activities Commission and the county board in which the home-schooled student lives; and (6) Agrees to obey all rules of the West Virginia Secondary School Activities Commission governing awards, all-star games, parental consents, physical examinations, and vaccinations applicable to all high school athletes. Eligibility is limited to participation in interscholastic athletic events and other extracurricular activities at the public secondary school serving the attendance zone in which the student lives: Provided, That home-schooled students who leave a member school during the school year are subject to the same transfer protocols that apply to member-to-member transfers. Reasonable fees may be charged to the student to cover the costs of participation in interscholastic athletic events and other extracurricular activities. (e) The West Virginia Secondary School Activities Commission shall recognize preparatory athletic programs, whose participants attend a secondary school in West Virginia for academic instruction, as nonparticipating members of the commission solely for the purpose of competing on the national level: Provided, That the preparatory athletic program shall pay the same fees as member schools. Such recognition does not entitle the preparatory athletic program to compete against a member school during the regular season or in any commission state championship events. The commission may promulgate an emergency rule pursuant to subsection (b) of this section, if necessary, to carry out the intent of this subsection. (f) Prior to a student's participation in single-sex secondary school interscholastic athletic events, the West Virginia Secondary School Activities Commission must verify with each county board that each student participating in single-sex interscholastic events is participating according to the student’s sex at the time of the student's birth pursuant to §18-2-5c. This subsection does not prohibit students from participating in a co-educational secondary school interscholastic athletic events. Students may participate in a co-educational secondary school interscholastic athletic events without having to comply with the requirements of this subsection. NOTE: The purpose of this bill is to require that a secondary student athlete’s participation in single-sex athletics be based upon the athlete’s biological sex, as indicated on the athlete’s original birth certificate issued at the time of birth. Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.

WEST virginia legislature 2021 regular session ENROLLED Committee Substitute for House Bill 3293 By Delegates Hanna, Bridges, Clark, Ellington, Horst, Jennings, Longanacre, Mazzocchi, Tully, Phillips and Burkhammer [Passed April 9, 2021; in effect ninety days from passage.] AN ACT to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18-2-25d, relating to designation of athletic teams or sports sponsored by any public secondary school or state institution of higher education according to biological sex; providing legislative findings; defining “biological sex”, “female”, and “male”; providing for designation of athletic teams as “males, men, or boys”, “females, women, or girls”, or “coed or mixed”; prohibiting biological males from participating on athletic teams or sports designated for biological females where competitive skill or contact is involved; clarifying that eligibility of any student to participate on athletic teams or sports designated for biological males is not restricted; providing cause of action for student aggrieved by violation of this section; requiring identity of minor student related to such action to remain anonymous; requiring promulgation of rules by the State Board of Education; and requiring proposal of legislative rules by the Higher Education Policy Commission and Council for Community and Technical College Education. Be it enacted by the Legislature of West Virginia: ARTICLE 2. STATE BOARD OF EDUCATION. §18-2-25d. Clarifying participation for sports events to be based on biological sex of the athlete at birth. (a) The Legislature hereby finds: (1) There are inherent differences between biological males and biological females, and that these differences are cause for celebration, as determined by the Supreme Court of the United States in United States v. Virginia (1996); (2) These inherent differences are not a valid justification for sex-based classifications that make overbroad generalizations or perpetuate the legal, social, and economic inferiority of either sex. Rather, these inherent differences are a valid justification for sex-based classifications when they realistically reflect the fact that the sexes are not similarly situated in certain circumstances, as recognized by the Supreme Court of the United States in Michael M. v. Sonoma County, Superior Court (1981) and the Supreme Court of Appeals of West Virginia in Israel v. Secondary Schools Act. Com’n (1989); (3) In the context of sports involving competitive skill or contact, biological males and biological females are not in fact similarly situated. Biological males would displace females to a substantial extent if permitted to compete on teams designated for biological females, as recognized in Clark v. Ariz. Interscholastic Ass’n (9th Cir. 1982); (4) Although necessarily related, as concluded by the United States Supreme Court in Bostock v. Clayton County (2020), gender identity is separate and distinct from biological sex to the extent that an individual’s biological sex is not determinative or indicative of the individual’s gender identity. Classifications based on gender identity serve no legitimate relationship to the State of West Virginia’s interest in promoting equal athletic opportunities for the female sex; and (5) Classification of teams according to biological sex is necessary to promote equal athletic opportunities for the female sex. (b) Definitions. - As used in this section, the following words have the meanings ascribed to them unless the context clearly implies a different meaning: (1) “Biological sex” means an individual’s physical form as a male or female based solely on the individual’s reproductive biology and genetics at birth. (2) “Female” means an individual whose biological sex determined at birth is female. As used in this section, “women” or “girls” refers to biological females. (3) “Male” means an individual whose biological sex determined at birth is male. As used in this section, “men” or “boys” refers to biological males. (c) Designation of Athletic Teams. -- (1) Interscholastic, intercollegiate, intramural, or club athletic teams or sports that are sponsored by any public secondary school or a state institution of higher education, including a state 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: (A) Males, men, or boys; (B) Females, women, or girls; or (C) Coed or mixed. (2) Athletic teams or sports designated for females, women, or girls shall not be open to students of the male sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport. (3) Nothing in this section shall be construed to restrict the eligibility of any student to participate in any interscholastic, intercollegiate, or intramural athletic teams or sports designated as “males,” “men,” or “boys” or designated as “coed” or “mixed”: Provided, That selection for a team may still be based on those who try out and possess the requisite skill to make the team. (d) Cause of Action. -- (1) Any student aggrieved by a violation of this section may bring an action against a county board of education or state institution of higher education alleged to be responsible for the alleged violation. The aggrieved student may seek injunctive relief and actual damages, as well as reasonable attorney’s fee and court costs, if the student substantially prevails. (2) In any private action brought pursuant to this section, the identity of a minor student shall remain private and anonymous. (e) The State Board of Education shall promulgate rules, including emergency rules, pursuant to §29A-3B-1 et. seq. of this code to implement the provisions of this section. The Higher Education Policy Commission and the Council for Community and Technical College Education shall promulgate emergency rules and propose rules for legislative approval pursuant to §29A-3A-1 et. seq. of this code to implement the provisions of this section.