Nebraska’s proposed transgender athlete ban is constitutional, state AG says

A Nebraska bill seeking to bar transgender athletes from competing on school sports teams that match their gender identity is constitutional, the state’s Republican attorney general said Tuesday.

Nebraska’s Legislative Bill 575, also known as the Sports and Spaces Act, would prevent transgender students from using public school restrooms or locker rooms consistent with their gender identity and require schools to designate participation in athletics based on sex assigned at birth. The bill would also redefine sex in a way that LGBTQ advocates have warned would exclude transgender and gender-nonconforming people.

Nebraska state Sen. Kathleen Kauth, a Republican who last year spearheaded a successful effort to heavily restrict access to gender-affirming health care for transgender minors in the state, filed the bill in January 2023 but was unable to get it through Nebraska’s unicameral Legislature before the end of the last session.

Kauth gave the bill priority designation in January.

In a legal opinion issued Tuesday, Nebraska Attorney General Mike Hilgers (R) said Kauth’s proposal is lawful. Hilgers, who served as the Legislature’s Speaker from 2021 to 2023, has previously stated that participation in sports and access to restrooms should be based on sex assigned at birth rather than gender identity.

“We conclude that L.B. 575, as introduced, is constitutional. Courts have long found that separating sports and facilities by sex is permissible under the Equal Protection Clause,” Hilgers wrote in his opinion, which is not legally binding.

“Courts have routinely found that objectives like those of L.B. 575—student privacy and equal athletic opportunities—are important,” Hilgers wrote. “It is reasonable for the State to make designations based on biology to ensure those objectives are accomplished.”

Kauth’s proposal is also likely to withstand any Title IX challenges, Hilgers added, because separating student facilities and sports teams based on sex assigned at birth “comports with the text and legislative purpose” of the federal civil rights law.

“The word ‘sex’ in Title IX and its carve-outs for facilities and athletic teams refers to biological sex, not sexual orientation or gender identity,” Hilgers wrote. “To read the phrase otherwise would render Title IX illogical.”

Republicans and Democrats have recently clashed over Title IX, which protects against sex discrimination in schools or education programs that receive federal funding, and how it should be applied to transgender students.

The Education Department in a 2021 notice of interpretation said the law’s prohibition on sex discrimination includes sexual orientation and gender identity, and the Biden administration’s proposed overhaul would expand protections to transgender students. A separate proposal would prevent states from enacting laws that categorically ban transgender athletes from competing on school sports teams consistent with their gender identity.

Hilgers in May joined 24 other Republican attorneys general in criticizing the White House’s proposal.

In a statement to The Hill, Kauth said she is pleased with Hilgers’s opinion and expects her bill to pass.

“The majority of Nebraskans support this commonsense bill protecting girls sports, and the privacy and dignity of all students in locker and bathrooms,” she said in an email.

At least 24 states since 2020 have enacted laws that bar transgender student-athletes from competing on sports teams consistent with their gender identity, according to the Movement Advancement Project, a nonprofit organization that tracks LGBTQ laws. Court orders are blocking the enforcement of laws in Arizona, Idaho, West Virginia and Utah.

Another 10 states have banned transgender people from using restrooms and locker rooms that match their gender identity in K-12 schools, a restriction that some states have expanded to include certain government buildings.