SB112 - Revises provisions relating to athletics. (BDR 34-36)

S.B. 112 - *SB112* SENATE BILL NO. 112–SENATOR BUCK PREFILED JANUARY 23, 2025 ____________ Referred to Committee on Education SUMMARY—Revises provisions relating to athletics. (BDR 34-36) FISCAL NOTE: Effect on Local Government: May have Fiscal Impact. Effect on the State: Yes. ~ EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. AN ACT relating to athletics; requiring certain schools and institutions of higher education to designate by sex the athletic teams and sports sponsored by the schools or institutions; prohibiting male or female athletes from competing on teams designated for the other sex; prohibiting certain actions from being brought against a school or institution for maintaining a separate athletic team or sport designated for pupils and students of the female or male sex; establishing certain causes of action; establishing the statute of limitations for such actions; and providing other matters properly relating thereto. Legislative Counsel’s Digest: Existing law governs athletics in schools and in institutions of higher education. 1 (Chapters 385B and 398 of NRS) Section 5 of this bill requires a public school or a 2 private school that competes against a public school to designate, based on 3 biological sex at birth, each athletic team or sport that is sponsored by the school as 4 being for males, for females or for both males and females. Section 5 prohibits 5 such a school from opening an athletic team or sport that is designated for females 6 or males to participation by members of the other sex. Section 6 of this bill 7 provides that a school’s compliance with section 5 does not constitute 8 discrimination on the basis of sex or gender identity or expression under any state 9 statute or local ordinance. Section 6 also prohibits certain entities that oversee 10 athletic teams and sports that are sponsored by public schools from taking certain 11 adverse actions against a school for maintaining a separate athletic team or sport for 12 females or males. Sections 10 and 11 of this bill establish similar provisions 13 applicable to public and private institutions of higher education. Sections 3, 4 and 14 9 of this bill define certain terms, and section 2 of this bill establishes the 15 applicability of the definitions set forth in sections 3 and 4. 16 – 2 – - *SB112* Section 7 of this bill authorizes a pupil to bring a civil action against: (1) a 17 school for a violation of sections 2-7; or (2) a school or athletic association or 18 organization for retaliating against the pupil for reporting a violation of sections 2- 19 7 to the school, athletic association or organization or a state or federal agency with 20 oversight of the school. Section 7 additionally authorizes a school to bring a civil 21 action against a governmental entity, licensing or accrediting organization or 22 athletic association or organization for a violation of sections 2-7. Section 7 23 establishes: (1) the period within which such a civil action must be filed; and (2) the 24 types of relief available in such a civil action. Section 12 of this bill establishes 25 similar provisions applicable to public and private institutions of higher education. 26 WHEREAS, In 2018, Communicative & Integrative Biology 1 published an article titled “Only two sex forms but multiple gender 2 variants: How to explain?” which stated that “with respect to 3 biological sex, one is either male or female”; and 4 WHEREAS, In 2021, BJPsych Bulletin published an article titled 5 “Sex, gender and gender identity: a re-evaluation of the evidence,” 6 which explained that the sex of a natural person “is determined at 7 fertili[z]ation and revealed at birth or, increasingly, in utero”; and 8 WHEREAS, In 2012, Chromosome Research published an article 9 titled “Mammalian sex determination-insights from humans and 10 mice,” which stated that “biological differences between males and 11 females are determined genetically during embryonic development”; 12 and 13 WHEREAS, In 2021, Sports Medicine published an article titled 14 “Transgender Women in the Female Category of Sport: Perspectives 15 on Testosterone Suppression and Performance Advantage,” which 16 asserted that the “[s]econdary sex characteristics that develop during 17 puberty . . . generate anatomical divergence beyond the reproductive 18 system, leading to adult body types that are measurably different 19 between sexes”; and 20 WHEREAS, The United States Supreme Court has declared there 21 are inherent differences between men and women and these 22 differences are “cause for celebration, but not for denigration of the 23 members of either sex or for artificial constraints on an individual’s 24 opportunity” (United States v. Virginia, 518 U.S. 515, 533 (1996)); 25 and 26 WHEREAS, In 2016, the European Journal of Sport Science 27 published an article titled “Physical fitness normative values for 6- 28 18-year-old Greek boys and girls, using the empirical distribution 29 and the lambda, mu, and sigma statistical method” and in 2011, the 30 British Journal of Sports Medicine published an article titled 31 “Normative health-related fitness values for children: Analysis of 32 85347 test results on 9-17-year-old Australians since 1985,” which 33 discussed studies of large cohorts of children who were between 6 34 and 19 years of age and found that boys typically scored higher than 35 – 3 – - *SB112* girls on cardiovascular endurance, muscular strength, muscular 1 endurance and speed and agility but lower on flexibility; and 2 WHEREAS, In 2017, the International Journal of Sports 3 Physiology and Performance published an article titled “Sex 4 Differences in World Record Performance: The Influence of Sport 5 Discipline and Competition Duration,” which concluded that the 6 physiological differences between males and females that are 7 relevant to performance in sports “include a larger body size with 8 more skeletal muscle mass, a lower percentage of body fat, as well 9 as greater maximal delivery of anaerobic and aerobic energy”; and 10 WHEREAS, In 2017, Law and Contemporary Problems 11 published an article titled “Sex in Sport” that explained that men 12 having higher natural levels of testosterone is significant because it 13 affects traits such as “hemoglobin levels, body fat content, ‘the 14 absolute ability to store and use carbohydrate,’ and the development 15 of ‘Type 2 muscle fibers, which are used to generate speed and 16 power’ ”; and 17 WHEREAS, The article published in Sports Medicine titled 18 “Transgender Women in the Female Category of Sport: Perspectives 19 on Testosterone Suppression and Performance Advantage” also 20 explained that there is a gap between males and females with regard 21 to performance in sports such that the physiological advantages 22 conferred on males by biological sex “appear, on assessment of 23 performance data, [to be] insurmountable”; and 24 WHEREAS, The United States Supreme Court has also declared 25 that while classifications based on sex are generally disfavored, 26 “[s]ex classifications may be used to compensate women for 27 particular economic disabilities [they have] suffered, to promot[e] 28 equal employment opportunity, [and] to advance full development 29 of the talent and capacities of our Nation’s people” (United States v. 30 Virginia, 518 U.S. 515, 533 (1996) (alteration in original) (internal 31 citations and quotations omitted); and 32 WHEREAS, One area where sex classifications allow for the full 33 development of the talent and capacities of our Nation’s people is in 34 the context of sports and athletics; and 35 WHEREAS, The Supreme Court of Rhode Island and the Illinois 36 Fourth District Appeals Court have recognized that the inherent, 37 physiological differences between males and females result in 38 different athletic capabilities (Kleczek v. R.I. Interscholastic League, 39 Inc., 612 A.2d 734, 738 (R.I. 1992); Petrie v. Ill. High Sch. Ass’n, 40 394 N.E.2d 855, 861); and 41 WHEREAS, The article published in Sports Medicine titled 42 “Transgender Women in the Female Category of Sport: Perspectives 43 on Testosterone Suppression and Performance Advantage” also 44 explained that the benefits that natural testosterone provides to male 45 – 4 – - *SB112* athletes are not significantly diminished through the use of 1 testosterone suppression; and 2 WHEREAS, That article found that policies like those of the 3 International Olympic Committee requiring biological males to 4 undergo at least 1 year of testosterone suppression before competing 5 in women’s sports do not create a level playing field; and 6 WHEREAS, That article concluded that the reduction in 7 testosterone levels required by policies like those of the 8 International Olympic Committee “is insufficient to remove or 9 reduce the male advantage, in terms of muscle mass and strength, by 10 any meaningful degree”; and 11 WHEREAS, That article concluded “that superior anthropometric, 12 muscle mass and strength parameters achieved by males at puberty, 13 and underpinning a considerable portion of the male performance 14 advantage over females, are not removed by the current regimen of 15 testosterone suppression” permitted by the International Olympic 16 Committee and other sports organizations; and 17 WHEREAS, That article instead found that “male performance 18 advantage remains substantial” and “raises obvious concerns about 19 fair and safe competition”; and 20 WHEREAS, Having separate sex-specific teams furthers efforts to 21 promote equality between the sexes by providing opportunities for 22 female athletes to demonstrate their skill, strength and athletic 23 abilities while also providing them with opportunities to obtain 24 recognition, accolades, college scholarships and the numerous other 25 long-term benefits that flow from success in athletic endeavors; and 26 WHEREAS, If males were permitted to compete in female sports, 27 the risk of injury to females would be increased by the ability of a 28 biological male to exert greater force, strength and power, and also 29 by females’ reduced ability to receive or tolerate that force; and 30 WHEREAS, Separating participants in contact sports based on 31 biological sex promotes the safety of female athletes by protecting 32 them from predictable and preventable injuries caused by male 33 athletes; now, therefore, 34 35 THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN 36 SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS: 37 38 Section 1. Chapter 385B of NRS is hereby amended by adding 39 thereto the provisions set forth as sections 2 to 7, inclusive, of this 40 act. 41 Sec. 2. As used in sections 2 to 7, inclusive, of this act, unless 42 the context otherwise requires, the words and terms defined in 43 sections 3 and 4 of this act have the meanings ascribed to them in 44 those sections. 45 – 5 – - *SB112* Sec. 3. “Private school” has the meaning ascribed to it in 1 NRS 394.103. 2 Sec. 4. “Sex” means the biological sex of a natural person, 3 either male or female, as observed or clinically verified at birth. 4 Sec. 5. 1. A public school or a private school whose pupils 5 compete against a public school shall expressly designate each 6 interscholastic or intramural athletic team or sport that is 7 sponsored by the school as one of the following, based on sex: 8 (a) “Males,” “men” or “boys”; 9 (b) “Females,” “women” or “girls”; or 10 (c) “Coed” or “mixed.” 11 2. An athletic team or sport that is designated for: 12 (a) “Females,” “women” or “girls” pursuant to subsection 1 13 must not be open to pupils of the male sex. 14 (b) “Males,” “men” or “boys” pursuant to subsection 1 must 15 not be open to pupils of the female sex. 16 3. If pupils of the male and the female sex participate 17 together in an interscholastic or intramural athletic team or sport, 18 the team or sport must be designated as “coed” or “mixed.” 19 Sec. 6. 1. The designation of an interscholastic or 20 intramural athletic team or sport based on sex, the exclusion of a 21 member of the male sex from a team or sport designated for 22 females or the exclusion of a member of the female sex from a 23 team or sport designated for males pursuant to section 5 of this act 24 does not constitute discrimination on the basis of sex or gender 25 identity or expression for the purposes of any state statute or local 26 ordinance. 27 2. A governmental entity, a licensing or accrediting 28 organization or any athletic association or organization shall not 29 entertain a complaint, open an investigation or take any other 30 adverse action against a public school, a private school, a school 31 district or the Association for maintaining separate interscholastic 32 or intramural athletic teams or sports for pupils of the female sex 33 or the male sex. 34 Sec. 7. 1. Notwithstanding any provision of NRS 41.0305 to 35 41.039, inclusive, but subject to the limitation on damages set 36 forth in NRS 41.035, when applicable: 37 (a) A pupil who is deprived of an athletic opportunity or 38 suffers any direct or indirect harm as a result of a school 39 knowingly violating sections 2 to 7, inclusive, of this act may bring 40 an action against the school for injunctive relief, damages and any 41 other relief available under law. 42 (b) A pupil who is subject to retaliation or other adverse action 43 by a school or athletic association or organization as a result of 44 reporting a violation of sections 2 to 7, inclusive, of this act to an 45 – 6 – - *SB112* employee or representative of the school or athletic association or 1 organization or to any state or federal agency with oversight of 2 schools in this State may bring an action against the school or 3 athletic association or organization for injunctive relief, damages 4 and any other relief available under law. 5 (c) A school that suffers any direct or indirect harm as a result 6 of a violation of sections 2 to 7, inclusive, of this act by a 7 governmental entity, licensing or accrediting organization or 8 athletic association or organization may bring an action for 9 injunctive relief, damages and any other relief available under 10 law. 11 2. A civil action brought pursuant to subsection 1 must be 12 initiated within 2 years after the harm occurred. A person or 13 o [Text truncated for display. Full text available on LegiScan.]