A Nebraska legislative committee, voting along partisan lines, advanced a proposal Thursday to define “male” and “female” in state law that seeks to restrict student-athlete participation and bathroom use by sex at birth.
The Government, Military and Veterans Affairs Committee, in a 5-3 vote, advanced Legislative Bill 89, the “Stand With Women Act” from State Sen. Kathleen Kauth of Omaha. The bill mirrors executive orders from President Donald Trump 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, for college sports, have already announced that they and their member schools would comply with the executive orders.
Kauth told the Nebraska Examiner she was grateful for the committee’s work and help from all senators, including some on a bipartisan basis, to improve the bill. LB 89 was introduced at Pillen’s request.
“Looking forward to the debate on the floor and encourage every senator to ‘Stand with Women’ and vote yes on this very common sense bill,” Kauth said in a text after her bill’s advancement.
Kauth’s bill, through an amendment the committee also adopted 5-3, 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, woman or girl) or sperm (male, man or boy) for fertilization.
Sex verification requirement
To participate in single-sex intramural or interscholastic sports in public schools, or for private schools competing against public schools, students would need to confirm their sex via a document signed by a doctor or signed under the authority of a doctor.
Female student-athletes could participate in male sports if there is no female alternative, such as football or wrestling, and coed sports would still be applicable.
A previous version of the bill would have required a doctor’s “attestation,” which had raised among opponents on the committee — State Sens. John Cavanaugh, Dunixi Guereca and Megan Hunt, all of Omaha — that this would require a notarized statement.
State Sen. Dave Wordekemper of Fremont, who serves on the Government Committee, said he and Kauth worked on the language because they wanted a way to verify a child’s sex. Both said they envisioned the doctor’s confirmation coming during a physical, which is typically required to play sports.
Kauth said the declaration is important as shown through the NCAA, which plans to use a student-athlete’s birth certificate to verify sex. Over 40 states, including Nebraska, allow someone to change the listed sex on their birth certificates.
Hunt, a progressive nonpartisan senator, asked what “male” or “female” box a doctor should check for an intersex student. She and Cavanaugh asked if doctors would need to do a genital inspection, which Kauth and committee members have said is a “stretch” and isn’t in the bill.
Committee members weigh in
Cavanaugh said the bill reminded him of a “sumptuary law,” or a law often rooted in religious or moral grounds to uphold social order. Among the first that comes to mind, he said after the vote, is “something like the Taliban,” such as dictating how women should wear a hijab.
He pointed to a section of LB 89 that states the proposal serves an “important governmental objective of protecting the privacy of individuals and shielding students’ bodies from the opposite sex”
“Seems dangerously similar to me,” Cavanaugh said.
State Sen. Bob Andersen of Sarpy County, vice chair of the committee, pushed back and said privacy and protecting women were important goals that the bill supports.
Cavanaugh and Hunt said gender isn’t as easy as proponents make it out to be, with Cavanaugh adding: “The fact that we’re on amendment number ‘x,’ the fact that it took at least three different bites of the apple to define what a man and a woman are, is a clear indication that this is a space that government should not be involved in.”
Hunt criticized Andersen and State Sen. Dan Lonowski of Hastings for voting against a separate bill Thursday, LB 224 from Guereca, to require 12 weeks of paid maternity leave for state employees yet voting for LB 89. Guereca’s bill, his 2025 priority, advanced from committee 6-2.
State Sen. Rita Sanders of Bellevue, committee chair, said that Kauth’s bill had received plenty of feedback for and against, and she said the bill should be up to the full Legislature, not an eight-member committee. She pointed to Title IX and watching it be “slowly, very slowly, get implemented.” The federal civil rights law paved the way for women’s athletics and banned sex-based discrimination in schools or universities receiving federal funds.
“Yes, we need to protect those women’s rights,” Sanders said.
Bathrooms and sports participation
Public schools and universities would need to designate all bathrooms and locker rooms for use by males, females or as single-occupancy. Restrooms also could be designated for family use.
LB 89 initially sought similar designations for state agency bathrooms, which the amendment removes. Instead, agencies from the Nebraska Department of Correctional Services and Nebraska Department of Health and Human Services to the Nebraska Department of Motor Vehicles and Nebraska Department of Economic Development would need to broadly define a person’s sex as male or female
Trump’s Feb. 5 executive order pledges to pull federal funds from educational programs that fail to allow transgender student-athletes to participate on a team based on gender identity, not sex at birth.
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 had already adopted separate local sports participation policies similar to Kauth’s bill and the executive orders.
Getting to 33 votes
State Sen. Merv Riepe of Ralston confirmed to the Examiner that he was still “leaning” toward not voting for Kauth’s bill. He said he wants to protect women’s sports but that the NSAA, NCAA and the multiple executive orders had already done so. Riepe, a former hospital administrator, said he was concerned the amendment was creating additional and “unnecessary” work for doctors.
Thus far, 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, which was limited at the time to K-12 sports and bathrooms.
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.
She is still working on getting 33 votes this year but said LB 89 would “at least get people on the record.” If LB 89 falls short, Kauth’s proposal will return next year, and she’ll continue working on it.
While Kauth has praised the executive orders, she has repeatedly said that executive orders can be reversed. 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.”
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.
