Bill Summary – FastDemocracy

H.B. 358
                          GENERAL ASSEMBLY OF NORTH CAROLINA
                                                                                             Mar 22, 2021
                                      SESSION 2021                                     HOUSE PRINCIPAL CLERK
     H                                                                                                D
                                   HOUSE BILL DRH10141-MK-55A
     Short Title:   Save Women's Sports Act.                                                    (Public)
     Sponsors:      Representatives Brody, McElraft, Wheatley, and Dixon (Primary Sponsors).
     Referred to:
                                      A BILL TO BE ENTITLED
 AN ACT TO ENACT THE SAVE WOMEN'S SPORTS ACT TO PROTECT THE
     OPPORTUNITIES FOR WOMEN AND GIRLS IN ATHLETICS BY ENSURING
     WOMEN ARE NOT FORCED TO COMPETE AGAINST MEN PLAYING ON WOMEN'S
     SPORTS TEAMS.
              Whereas, there are ""[i]nherent differences" between men and women," and that 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." United States v. Virginia, 518 U.S. 515,
 533 (1996); and
              Whereas, these "inherent differences" range from chromosomal and hormonal
 differences to physiological differences; and
              Whereas, 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." Neel Burton, The Battle of the Sexes, PSYCHOL. TODAY, (July 2, 2012),
 https://www.psychologytoday.com/us/blog/hide-and-seek/201207/the-battle-the-sexes; and
              Whereas, 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. Doriane Lambelet Coleman, Sex in Sport, 80 LAW &
 CONTEMPORARY PROBLEMS 63, 74 (2017) (quoting Gina Kolata, Men, Women and Speed.
 2 Words: Got Testosterone?, N.Y. TIMES, Aug. 21, 2008); and
              Whereas, the biological differences between females and males, especially as they
 relate to natural levels of testosterone, "explain the male and female secondary sex characteristics
 which develop during puberty and have lifelong effects, including those most important for
 success in sport: categorically different strength, speed, and endurance." Doriane Lambelet
 Coleman & Wickliffe Shreve, "Comparing Athletic Performances: The Best Elite Women to
 Boys       and     Men,"      Duke      Law      Center     for   Sports     Law      and    Policy,
 https://web.law.duke.edu/sports/sex-sport/comparative-athletic-performance; and
              Whereas, while classifications based on sex are generally disfavored, the United
 States Supreme Court has recognized that "[s]ex classifications may be used to compensate
 women for particular economic disabilities [they have] suffered, to promote equal employment
 opportunity, [and] to advance full development of the talent and capacities of our Nation's
 people." United States v. Virginia, 518 U.S. 515, 533 (1996) (internal citations and quotation
 marks omitted); and
              Whereas, 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; and
                                   *DRH10141-MK-55A*
     General Assembly Of North Carolina                                                      Session 2021
              Whereas, courts have recognized that the inherent, physiological differences between
 males and females result in different athletic capabilities. See, e.g., Kleczek v. R.I. 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"); and
              Whereas, a recent study of female and male Olympic performances since 1983 found
 that, although athletes from both sexes improved over the time span, the "gender gap" between
 female and male performances remained stable. "These suggest that women's performances at
 the high level will never match those of men." Valerie Thibault, et al., Women and Men in Sport
 Performance: The Gender Gap has not Evolved since 1983, 9 J. SPORTS SCI. & MED. 214,
 219 (2010); and
              Whereas, as Duke Law professor and all-American track athlete Doriane Coleman,
 tennis champion Martina Navratilova and Olympic track gold medalist Sanya Richards-Ross
 recently wrote: "The 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), https://wapo.st/2VKlNN1; and
              Whereas, the benefits that natural testosterone provides to male athletes are not
 diminished through the use of puberty blockers and cross-sex hormones. A recent study on the
 impact of such treatments found that policies like those of the International Olympic Committee
 that require biological males to undergo at least one year of testosterone suppression before
 competing in women's sports do not create a level playing field. "[T]he reduction in testosterone
 levels required by many sports federation transgender policies is insufficient to remove or reduce
 the male advantage by any meaningful degree." For example, "the muscle mass advantage males
 possess over females, and potentially the performance implications thereof, are not removed by
 12 months of testosterone suppression." Instead, the study concluded that "The data presented
 here demonstrates that the male physical performance advantage over females, attributed to
 superior anthropometric and muscle mass/strength parameters achieved at puberty, is not
 removed by the current regimen of testosterone suppression permitting participation of
 transgender women in female sports categories. Rather, it appears that the male performance
 advantage is largely retained by transgender women and thus remains substantial." Hilton, E.N.;
 Lundberg, T.R. Transgender Women in The Female Category of Sport: Is the Male Performance
 Advantage Removed by Testosterone Suppression?. Preprints 2020, 2020050226 (doi:
 10.20944/preprints202005.0226.v1); and
              Whereas, having separate sex-specific teams furthers efforts to promote sex equality.
 Sex-specific teams accomplish this 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; Now, therefore,
 The General Assembly of North Carolina enacts:
              SECTION 1. This act shall be known as "The Save Women's Sports Act."
              SECTION 2.(a) Chapter 115C of the General Statutes is amended by adding a new
 Article to read:
                                               "Article 29E.
                               "Biological Sex-Specific Athletic Teams.
 "§ 115C-407.40. Designation of athletic teams.
     Page 2                                                                         DRH10141-MK-55A
     General Assembly Of North Carolina                                                      Session 2021
     (a)     All athletic teams for middle and secondary school students participating in
 interscholastic or intramural athletic activities conducted by a public school unit shall be
 expressly designated as one of the following based on biological sex:
             (1)     Males, men, or boys.
             (2)     Females, women, or girls.
             (3)     Coed or mixed.
     (b)     Athletic teams or sports designated for females, women, or girls shall not be open to
 students of the male sex.
     (c)     Sex shall be recognized based solely on a person's reproductive biology and genetics
 at birth.
 "§ 115C-407.41. Protection for schools.
     No governmental entity, licensing or accrediting organization, or athletic association or
 organization shall consider a complaint, open an investigation, or take an adverse action against
 a school or public school unit for maintaining separate athletic teams or sports for students of the
 female sex in accordance with this Article.
 "§ 115C-407.42. Cause of action; remedies.
     (a)     A biological female student who is deprived of an athletic opportunity or suffers or is
 likely to suffer from any direct or indirect harm as a result of a violation of this Article may assert
 that violation as a cause of action for remedies provided for in subsection (d) of this section.
     (b)     A biological female student who is subjected to retaliation or other adverse action by
 a public school unit, athletic association, or other organization as a result of reporting a violation
 of this Article to an employee or representative of the public school unit, athletic association, or
 to any local, State, or federal agency with oversight of the public school unit shall have a cause
 of action for remedies provided for in subsection (d) of this section.
     (c)     Any public school unit or its representatives or employees who suffer any direct or
 indirect harm for prohibiting a biological male student from participating on a female, girls', or
 women's athletic team pursuant to the requirements of this Article shall have a cause of action
 for remedies provided for in subsection (d) of this section.
     (d)     Any person who brings a cause of action pursuant to this Article may obtain
 appropriate relief, including the following:
             (1)     Injunctive relief, protective order, writ of mandamus or prohibition, or
                     declaratory relief to prevent any violation of this Article.
             (2)     Actual damages, including for psychological, emotional, or physical harm,
                     reasonable attorney fees, and costs.
     (e)     All civil actions under this Article must be initiated within two years from the date
 that the harm occurred."
             SECTION 2.(b) G.S. 115C-12(23) reads as rewritten:
             "(23) Power to Adopt Eligibility Rules for Interscholastic Athletic Competition. –
                     The State Board of Education shall adopt rules governing interscholastic
                     athletic activities conducted by local boards of education, including eligibility
                     for student participation. participation and designation of teams consistent
                     with the provisions of Article 29E of this Chapter. With regard to middle
                     schools and high schools, the rules shall provide for the following:
                     …."
             SECTION 2.(c) G.S. 115C-218.75 is amended by adding a new subsection to read:
     "(i)    Biological Sex-Specific Athletic Teams. – Article 29E of this Chapter shall apply to
 a charter school organizing athletic teams for middle or secondary school students to participate
 in interscholastic or intramural athletic activities."
             SECTION 3. Article 39 of Chapter 115C of the General Statutes is amended by
 adding a new section to read:
 "§ 115C-566.10. Biological sex-specific athletic teams.
     DRH10141-MK-55A                                                                                Page 3
     General Assembly Of North Carolina                                                      Session 2021
     Article 29E of this Chapter shall apply to any nonpublic school that is a member of a
 State-level association, including the North Carolina High School Athletic Association
 (NCHSAA), that governs participation in interscholastic athletic activities at the high school
 level."
              SECTION 4. Chapter 116 of the General Statutes is amended by adding a new
 Article to read:
                                               "Article 38.
                                "Biological Sex-Specific Athletic Teams.
 "§ 116-400. Definitions.
     The following definitions apply in this Article:
              (1)     Institution of higher education. – A constituent institution of The University
                      of North Carolina, a community college under the jurisdiction of the State
                      Board of Community Colleges, or a private college or university located in
                      North Carolina.
              (2)     Intercollegiate athletic program. – A sport program played at the collegiate
                      level for which eligibility requirements for participation by a student are
                      established by a national association for the promotion or regulation of
                      intercollegiate athletics, including the National Collegiate Athletic
                      Association (NCAA), the National Association of Intercollegiate Athletics
                      (NAIA), and the National Junior College Athletic Association (NJCAA).
              (3)     Intramural athletics. – Recreational sports organized by a constituent
                      institution of The University of North Carolina or a community college under
                      the jurisdiction of the State Board of Community Colleges.
 "§ 116-401. Designation of athletic teams.
     (a)      All intramural athletic teams and teams that are part of an intercollegiate athletic
 program of an institution of higher education shall be expressly designated as one of the
 following based on biological sex:
              (1)     Males, men, or boys.
              (2)     Females, women, or girls.
              (3)     Coed or mixed.
     (b)      Athletic teams or sports designated for females, women, or girls shall not be open to
 students of the male sex.
     (c)      Sex shall be recognized based solely on a person's reproductive biology and genetics
 at birth.
 "§ 116-402. Protection for institutions of higher education.
     No governmental entity, licensing or accrediting organization, or athletic association or
 organization shall consider a complaint, open an investigation, or take an adverse action against
 an institution of higher education for maintaining separate athletic teams or sports for students of
 the female sex in accordance with this Article.
 "§ 116-403. Cause of action; remedies.
     (a)      A biological female student who is deprived of an athletic opportunity or suffers or is
 likely to suffer from any direct or indirect harm as a result of a violation of this Article may assert
 that violation as a cause of action for remedies provided for in subsection (d) of this section.
     (b)      A biological female student who is subjected to retaliation or other adverse action by
 an institution of higher education, athletic association, or other organization as a result of
 reporting a violation of this Article to an employee or representative of the institution of higher
 education, athletic association, or to any local, State, or federal agency with oversight of the
 institution shall have a cause of action for remedies provided for in subsection (d) of this section.
     (c)      Any institution of higher education or its representatives or employees who suffer any
 direct or indirect harm for prohibiting a biological male student from participating on a female,
     Page 4                                                                         DRH10141-MK-55A
     General Assembly Of North Carolina                                                    Session 2021
 girls', or women's athletic team pursuant to the requirements of this Article shall have a cause of
 action for remedies provided for in subsection (d) of this section.
     (d)     Any person who brings a cause of action pursuant to this Article may obtain
 appropriate relief, including the following:
             (1)     Injunctive relief, protective order, writ of mandamus or prohibition, or
                     declaratory relief to prevent any violation of this Article.
             (2)     Actual damages, including for psychological, emotional, or physical harm,
                     reasonable attorney fees, and costs.
     (e)     All civil actions under this Article must be initiated within two years from the date
 that the harm occurred."
             SECTION 5. If any section or provision of this act is declared unconstitutional or
 invalid by the courts, it does not affect the validity of this act as a whole or any part other than
 the part so declared to be unconstitutional or invalid.
             SECTION 6. This act is effective when it becomes law. Sections 2 and 3 of this act
 apply beginning with the 2021-2022 school year. Section 4 of this act applies beginning with the
 2021-2022 academic year.
     DRH10141-MK-55A                                                                             Page 5<