Bill Summary – FastDemocracy

Stricken language would be deleted from and underlined language would be added to present law.
                                           Act 461 of the Regular Session
 State of Arkansas                    As Engrossed:        S3/9/21
 93rd General Assembly                        A Bill
 Regular Session, 2021                                                             SENATE BILL 354
 4
 By: Senators Irvin, Beckham, Bledsoe, A. Clark, B. Davis, J. English, T. Garner, Gilmore, K. Hammer,
 Hester, B. Johnson, M. Johnson, Rapert, G. Stubblefield, D. Wallace, J. Dismang, Hill
 By: Representatives Barker, Bentley, S. Berry, Brown, Cavenaugh, Cloud, C. Cooper, Cozart, Crawford,
 Dalby, C. Fite, Furman, Gonzales, M. Gray, Haak, Ladyman, Lundstrum, J. Mayberry, McGrew,
 McKenzie, Milligan, Payton, Pilkington, Ray, Richmond, B. Smith, Speaks, Vaught, Watson, Womack,
 Penzo, Tosh, Wing
11
                                   For An Act To Be Entitled
                 AN ACT TO CREATE THE FAIRNESS IN WOMEN'S SPORTS ACT;
                 AND FOR OTHER PURPOSES.
15
16
                                                Subtitle
                         TO CREATE THE FAIRNESS IN WOMEN'S SPORTS
                         ACT.
20
21
 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:
23
         SECTION 1.       DO NOT CODIFY.      Legislative findings and intent.
         (a)   The General Assembly finds that:
                 (1)     According to the United States Supreme Court in United
 States v. Virginia, 518 U.S. 515, 533 (1996), there are "inherent differences
 between men and women," and these differences "remain cause for celebration,
 but not for denigration of the members of either sex or for artificial
 constraints on an individual's opportunity";
                 (2)     These "inherent differences" range from chromosomal and
 hormonal differences to physiological differences;
                 (3)     According to Neel Burton, "The Battle of the Sexes,"
 Psychology Today (July 2, 2012), men generally have "denser, stronger bones,
 tendons, and ligaments" and "larger hearts, greater lung volume per body
 mass, a higher red blood cell count, and higher hemoglobin";
     *TNL059*                                                                    03-09-2021 13:29:21 TNL059
     As Engrossed:      S3/9/21                                                     SB354
              (4)    According to Doriane Lambelet Coleman, "Sex in Sport", 80
 Law and Contemporary Problems 63-126 (2017) (quoting Gina Kolata, "Men, Women
 and Speed.   2 Words: Got Testosterone?", N.Y. Times (Aug. 21, 2008)), men
 also have higher natural levels of testosterone, which affects traits such as
 hemoglobin levels, body fat content, the storage and use of carbohydrates,
 and the development of type 2 muscle fibers, all of which result in men being
 able to generate higher speed and power during physical activity;
              (5)    The biological differences between men and women, especially
 related to natural levels of testosterone, "explain the male and female
 secondary sex characteristics which develop during puberty and have life-long
 effects, including those most important for success in sport: categorically
 different strength, speed, and endurance," according to Doriane Lambelet
 Coleman and Wickliffe Shreve, "Comparing Athletic Performances: The Best
 Elite Women to Boys and Men," Duke Law Center for Sports Law and Policy;
              (6)    While classifications based on sex are generally disfavored,
 the United States Supreme Court in United States v. Virginia, 518 U.S. 515,
 533 (1996), has recognized that "sex classifications may be used to
 compensate women for particular economic disabilities [they have] suffered,
 promote equal employment opportunity, [and] to advance full development of
 the talent and capacities of our Nation's people";
              (7)    One place where sex classifications allow for the "full
 development of the talent and capacities of our Nation's people" is in the
 context of sports and athletics;
              (8)    Courts have recognized that the inherent, physiological
 differences between males and females result in different athletic
 capabilities.      See, for example, Kleczek v. Rhode Island Interscholastic
 League, Inc., 612 A.2d 734, 738 (R.I. 1992) ("Because of innate physiological
 differences, boys and girls are not similarly situated as they enter athletic
 competition."); Petrie v. Ill. High Sch. Ass'n, 394 N.E.2d 855, 861 (Ill.
 App. Ct. 1979) (noting that "high school boys [generally possess
 physiological advantages over] their girl counterparts" and that those
 advantages give them an unfair lead over girls in some sports like "high
 school track");
              (9)    A recent study of female and male Olympic performances since
 1983 by Valerie Thibault, et al., "Women and Men in Sport Performance: The
 Gender Gap Has Not Evolved Since 1983," Journal of Sports Science & Medicine,
                                            2               03-09-2021 13:29:21 TNL059
     As Engrossed:    S3/9/21                                                       SB354
 Vol. 9, No.2 (2010), found that although athletes from both sexes improved
 over the time span, the "gender gap" between female and male performances
 remained stable, which suggests that "women's performances at the high level
 will never match those of men";
               (10)    As Duke University School of Law professor and All-American
 track athlete Doriane Coleman, tennis champion Martina Navratilova, and
 Olympic track gold medalist Sanya Richards-Ross recently wrote, "[T]he
 evidence is unequivocal that starting in puberty, in every sport except
 sailing, shooting, and riding, there will always be significant numbers of
 boys and men who would beat the best girls and women in head-to-head
 competition.    Claims to the contrary are simply a denial of science."
 (Doriane Coleman, Martina Navratilova, et al., "Pass the Equality Act, But
 Don't Abandon Title IX," Washington Post (Apr. 29, 2019));
               (11)    The benefits that natural testosterone provide to male
 athletes are not diminished through the use of puberty blockers and cross-sex
 hormones.   A recent study on the impact of treatments regarding puberty
 blockers and cross-sex hormones found that even "after 12 months of hormonal
 therapy," a man who identifies as a woman and is taking cross-sex hormones
 "had an absolute advantage" over female athletes and "will still likely have
 performance benefits" over women.       (Wilk, Anna, et al., "Muscle Strength,
 Size and Composition Following 12 Months of Gender-Affirming Treatment in
 Transgender Individuals," The Journal of Clinical Endocrinology & Metabolism,
 Vol. 105, No. 3 (2019)); and
               (12)    Having separate sex-specific teams furthers efforts to
 promote sex equality and accomplishes this aim by providing opportunities for
 female athletes to demonstrate their skill, strength, and athletic abilities
 while also providing them with opportunities to obtain recognition and
 accolades, college scholarships, and the numerous other long-term benefits
 that flow from success in athletic endeavors.
30
      SECTION 2.       Arkansas Code Title 6, Chapter 1, Subchapter 1, is amended
 to add an additional section to read as follows:
      6-1-107.        Fairness in Women's Sports Act.
      (a)    This section shall be known and may be cited as the "Fairness in
 Women's Sports Act".
      (b)(1)     As used in this section, "school" means:
                                             3               03-09-2021 13:29:21 TNL059
     As Engrossed:      S3/9/21                                                       SB354
                       (A)    A public elementary or secondary school;
                       (B)    An open-enrollment public charter school; and
                       (C)    A public two-year or four-year institution of higher
 education.
              (2)    "School" includes a private educational institution whose
 interscholastic, intercollegiate, intramural, or club athletic teams or
 sports compete against a public school.
      (c)     Interscholastic, intercollegiate, intramural, or club athletic
 teams or sports that are sponsored by a school shall be expressly designated
 as one (1) of the following based on biological sex:
              (1)    "Male", "men's", or "boys;
              (2)(A)     "Female", "women's", or "girls".
                       (B)    An interscholastic, intercollegiate, intramural, or
 club athletic team or sport that is expressly designated for females, women,
 or girls shall not be open to students of the male sex; or
              (3)    "Coed" or "mixed".
      (d)     A state government entity, licensing or accrediting organization,
 or athletic association or organization shall not undertake any of the
 following with respect to a school that maintains separate interscholastic,
 intercollegiate, intramural, or club athletic teams or sports for students of
 the female sex:
              (1)    Accept a complaint concerning gender bias;
              (2)    Open an investigation; or
              (3)    Take any other adverse action against the school.
      (e)     A student who is:
              (1)    Deprived of an athletic opportunity or suffers a direct or
 indirect harm as a result of a violation of this section shall have a private
 cause of action against the school for:
                       (A)    Injunctive relief;
                       (B)    Damages, including without limitation:
                               (i)    Monetary damages for any psychological,
 emotional, or physical harm; and
                               (ii)   Reasonable attorney's fees and costs; and
                       (C)    Any other relief available under the law; or
              (2)    Subject to retaliation or other adverse action by a school
 or athletic association or organization as a result of reporting a violation
                                                4               03-09-2021 13:29:21 TNL059
     As Engrossed:    S3/9/21                                                       SB354
 of this section to an employee or representative of the school or athletic
 association or organization, or to a state or federal agency with oversight
 of schools, shall have a private cause of action against the school or
 athletic association or organization for:
                    (A)     Injunctive relief;
                    (B)     Damages, including without limitation:
                             (i)    Monetary damages for any psychological,
 emotional, or physical harm; and
                             (ii)   Reasonable attorney's fees and costs; and
                    (C)     Any other relief available under law.
      (f)   A school that suffers a direct or indirect harm as a result of a
 violation of this section shall have a private cause of action against the
 state government entity, licensing or accrediting organization, or athletic
 association or organization for:
            (1)    Injunctive relief;
            (2)    Damages, including without limitation:
                    (A)     Monetary damages for any psychological, emotional, or
 physical harm; and
                    (B)     Reasonable attorney's fees and costs; and
            (3)    Any other relief available under the law.
      (g)   A civil action initiated under subsection (e) or subsection (f) of
 this section shall be commenced within two (2) years after the harm occurred.
23
24
                                         /s/Irvin
26
27
                                     APPROVED: 3/25/21
29
30
31
32
33
34
35
36
                                              5               03-09-2021 13:29:21 TNL059