LINCOLN — A state lawmaker seeking to define all K-12 school bathrooms and sporting teams based on students’ sex at birth received legal support Tuesday from the state’s top attorney.
Nebraska Attorney General Mike Hilgers, in a 32-page opinion, opined that Omaha State Sen. Kathleen Kauth’s Legislative Bill 575 is constitutional and wouldn’t violate federal laws, such as the Equal Protection Clause or Title IX, a landmark civil rights law that prohibits sex-based discrimination in educational programs or activities that receive federal financial assistance.
Kauth said she requested the legal opinion last year after introducing LB 575.
The measure does not reference gender identity — it defines sex based on X or Y chromosomes — so the plain text of the bill “cannot be said to single out transgender students.”
“Transgender students have not argued the government cannot draw a line between boys and girls for purposes of bathrooms and sports; they have argued that the government has drawn a line in the wrong spot,” Hilgers wrote in a Tuesday opinion in Kauth.
Whether or not the bill’s definitions involving chromosomes improperly exclude trans students, Hilgers wrote: “That objection is fundamentally a line-drawing one, which survives constitutional scrutiny under a rational-basis test.”
Hilgers said state law allows, but does not require, educational institutions to maintain separate toilet facilities, locker rooms or living facilities for different sexes. He argued that if “sex” was expanded in Title IX definitions to include sexual orientation or gender identity — as it has been in employment cases through Title VII — it would “render Title IX illogical.”
“It’s very reassuring,” Kauth told the Nebraska Examiner of Hilgers’ opinion.
Multiple lawyers serving in the Legislature were reviewing the opinion at the Examiner’s request but haven’t yet responded to requests for comment.
‘No evidence’ that bill meant to cause harm
Opponents of LB 575 have argued it is discriminatory and deprives transgender students of their rights to participate in sports and activities, but Kauth said Hilgers’ opinion helps support what she’s said from the beginning: LB 575 is about protecting all students over a difficult subject.
Hilgers stated the proposal could have a “disparate impact” on trans students, who might be more likely to request to use a different bathroom than their sex at birth.
However, “disparate impact alone is not enough to render an otherwise neutral law unconstitutional,” which requires motivation by “purposeful discrimination” — acting “because of” the adverse effects that could come to an identifiable group.
“We find no evidence that LB 575 has been introduced to single out and harm transgender students as opposed to protect the privacy of students and protect female athletic opportunity,” Hilgers wrote.
Courts around the country have ruled in various ways on similar legislation, and federal appeals circuits are divided on whether to uphold or cast down on the laws.
The U.S. Supreme Court has not yet taken up a related case.
Hilgers writes that in most cases, for or against the laws, students expect physical privacy while in bathrooms, and the State of Nebraska should address this governmental interest.
In opposing case law, Hilgers said, courts “misapplied the standard” and described their reasoning as “unpersuasive.”
Instead of focusing on whether the government should be interested in upholding privacy and women’s sports, Hilgers said, some courts focused on whether the government could generally prohibit transgender students from accessing facilities and teams designated for a different sex.
“We find the logic of these decisions misplaced,” Hilgers wrote, arguing that the question should be whether bills such as LB 575 protect bodily privacy.
LB 575 still in committee
The Education Committee has not considered LB 575 since its hearing last year, which lawmakers on the committee have noted prevented some rancor this year that defined the 2023 legislative session over LB 574, a Kauth sister bill that lawmakers passed to restrict what gender care minors in the state could access.
State Sen. Dave Murman of Glenvil, Education Committee chair, said the committee will meet to discuss LB 575 on Thursday, which could set up first-round debate for Friday if at least five committee members vote to advance the bill.
Friday is the deadline for first-round debate to finish in the Legislature’s final weeks of their 2024 session.
Speaker John Arch of La Vista has stated he wants to schedule debate for all priority bills if possible; Kauth prioritized LB 575 on the first day of the 2024 session. Should LB 575 advance from committee but fail to advance this week, there remains a possibility it could hitch a ride if amended onto a different measure by end of day next Wednesday, April 10.
Kauth said she remains hopeful her measure will advance from committee and have 33 votes to overcome an expected filibuster. Arch could declare LB 575 a “social bill,” as LB 574 was often described last year, which would cut the maximum time for the first debate to four hours.
NSAA Gender Participation Policy
Currently, the Nebraska State Activities Association, which governs athletics and activities in many public and private schools, has a Gender Participation Policy.
The policy states a Gender Identity Eligibility Committee must review and unanimously approve trans students’ eligibility to participate on a team different from their sex at birth. The committee consists of a physician with experience in transgender health care, a mental health professional, a school administrator from a different school and an NSAA staff member.
The review includes a medical examination and requires trans girls to go through physiological testing — bone structure, muscle mass and testosterone hormonal levels — to prove they don’t “possess physical … or physiological advantages over genetic females of the same age group.”
Hilgers said lawmakers are not required to amend LB 575 for youths who have undergone treatments to “curtail their physiological advantages.” He did not address the NSAA policy in his opinion.
Transgender students who have not undergone gender reassignment surgery must use bathrooms and locker rooms of their birth sex at NSAA-sponsored contests, though they could be assigned private facilities, per the policy. LB 574 prohibits such surgeries before age 19.
A growing number of Nebraska lawmakers seeks to avoid another fight on trans youth in 2024
Some of Kauth’s colleagues who supported LB 574 have pointed to the NSAA policy or local control as alternative solutions to what they see as an issue in some schools. A number of senators declined to comment on Hilgers’ opinion or how they’ll vote if LB 575 comes up for debate.
School districts in Kearney and Norfolk adopted similar participation policies last year.
Lengthy timeline for medical approval
While the NSAA has a policy, Kauth noted, the State of Nebraska needs a standardized law in case there’s a clash between schools permitting transgender student-athletes and another prohibiting their participation.
She also pointed to a recent failed vote on the State Board of Education led by Kirk Penner of Aurora as justification that the Legislature must act.
Gov. Jim Pillen approved final regulations for LB 574 last month requiring children with gender dysphoria or gender nonconformity to go through 40 hours of “gender-identity-focused therapeutic hours” and live primarily as their preferred gender for at least six consecutive months before receiving either puberty blockers or hormones.
The regulations restrict patients to no more than two hours of therapy per week, after an initial assessment of up to four hours, and at least one related therapy hour must be completed every 90 days during ongoing treatment once medications have been prescribed.
This equates to at least five months of therapy, and patients and providers have said the timeline is likely longer as youths may have difficulty maintaining consistent appointments.
In January, an NSAA spokesperson said one trans student’s application was approved for the 2023-24 school year. Five students were approved to play between 2017 and January 2023.
