Zach Wendling
LINCOLN — A Nebraska legislative committee has delayed, for now, a final vote on whether to advance a proposal to define “male” and “female” in state law and restrict student-athlete participation by sex at birth.
The Government, Military and Veterans Affairs Committee elected to not yet vote on advancing Legislative Bill 89, the “Stand With Women Act” from State Sen. Kathleen Kauth of Omaha, over questions from some committee members about whether a proposed amendment would require all students to get a notarized doctor’s note of that student’s sex to participate in single-sex sports.
State Sen. Rita Sanders of Bellevue, the committee chair, said “more clarity would provide a better debate” after Omaha State Sens. John Cavanaugh, Dunixi Guereca and Megan Hunt asked whether a a doctor’s “attestation” would implicate the need for a notary.
Hunt said this would increase costs for some families. She asked her colleagues to consider if they lived in the land of the free and thought of all the people who died for the freedom to play sports who would need to find a notary to do so. Cavanaugh said the requirement should lead to a new public hearing.
State Sen. Dan Lonowski of Hastings responded that the committee needed to consider the freedom of other kids, which State Sen. Bob Andersen of north-central Sarpy County echoed.
State Sen. Dave Wordekmper of Fremont said he had talked with Kauth about the amendment because both desired a way to verify a child’s sex for participation in single-sex sports. His thought, he said, was that a doctor could document a child’s sex during a routine physical.
Kauth told the Nebraska Examiner after the committee’s decision that she felt good the one word was the only hold up, which she described as an “easy fix” to change the word “attestation.”
“Knowing that it’s a term of legal art, we’ll pick a word that doesn’t mean ‘notarized,’ and I appreciate them figuring that out,” Kauth said. “What I’m talking about is a sports physical.”
Sanders said the committee will take a few days to consider possible tweaks to the bill and a path forward before reconsidering Kauth’s bill.
Bill mirrors executive orders
Public schools and universities would need to designate all bathrooms and locker rooms for use by males, females or single-occupancy. Restrooms could also be designated for family use.
LB 89 initially sought similar designations for state agency bathrooms, which the amendment would remove. Instead agencies such as the Nebraska Department of Correctional Services and Nebraska Department of Health and Human Services would need to define a person’s sex as male or female.
The bill mirrors executive orders from President Donald Trump earlier this year and Gov. Jim Pillen in 2023 that sought to define sex as binary, including for athletics, school bathrooms and state agencies.
The Nebraska School Activities Association, for most K-12 sports, and the National Collegiate Athletic Association have already announced that they would comply with the executive orders.
Kauth said the declaration of a student’s sex is important in the case of the NCAA, which said it would determine a child’s sex by birth certificate, which Kauth said can be changed in about 44 states, including Nebraska.
She added: “If we’re talking about keeping girls safe on the field and privacy, we need to make sure that we’re actually doing that.”
Kauth’s bill, with the proposed amendment, would define sex as male or female based on whether someone “naturally has, had, will or would have, but for a congenital anomaly or intentional or unintentional disruption, the reproductive system that at some point produces, transports and utilizes” either eggs (female) or sperm (male) for fertilization.
Trump’s Feb. 5 executive order pledges to pull federal funds from educational programs that fail to comply with his order.
From 2018 through February, eight students had applied to participate in Nebraska high school sports based on their gender identity under the NSAA’s Gender Participation Policy. It offers a path for students to participate on sports teams different than the student’s sex at birth and requires medical and physiological testing. The organization has declined to say how many students it approved under the policy.
In December, NCAA President Charlie Baker told a U.S. Senate panel that he was aware of fewer than 10 active transgender student-athletes out of the NCAA’s 510,000 participants.
At least a couple of Nebraska school districts have already adopted separate local sports participation policies similar to Kauth’s bill and the executive orders.
A key swing vote
State Sen. Merv Riepe of Ralston, prior to seeing the latest amendment, told the Examiner this week that he was “leaning” to not vote for Kauth’s bill. He said he wants to protect women’s sports but that the NSAA, NCAA and executive orders had already done so.
Legislation seeking to enshrine the executive orders into federal and state law have stalled.
In Congress, a bill passed the U.S. House but stalled in the Senate. Nebraska’s congressional members supported the bills.
In Nebraska, Riepe and State Sen. Tom Brandt of Plymouth were the two Republicans to not vote in favor of Kauth’s “Sports and Spaces Act” in 2024 that was limited at the time to K-12 sports and bathrooms.
Kauth has praised the executive orders but has repeatedly said that executive orders can be reversed.
However, Riepe said in February that “if Trump’s executive order can stand for the four years of his term, then LB 89 can wait four years.”
Contentious bills require 33 votes to advance, and Republicans in the officially nonpartisan Legislature hold just enough seats. No Democrats supported Kauth’s previous, narrower bill.
‘A more focused bill’
State Sen. Jane Raybould of Lincoln on Thursday withdrew a competing bill to Kauth’s proposal, LB 605, that sought to largely put the NSAA’s now-defunct Gender Participation Policy into law.
The bill had not yet received a public hearing, and Raybould’s withdrawal motion passed 34-0.
Kauth has designated LB 89 as her 2025 priority, the first senator to do so, which increases the likelihood that her bill will be debated this year. Speaker John Arch of La Vista sets the daily agenda.
Sanders told reporters that Kauth has indicated she is “very close” to getting 33 votes.
Asked how she would vote, Sanders told reporters: “I’m not real sure until we have some more clarity on the bill, because how do you debate a bill when you’re not sure what exactly we’re debating, right? So let’s clean up some language so we have a more focused bill for floor debate.”