Public hearing focuses on whether to define male, female in Nebraska law

LINCOLN — Dozens of Nebraskans, with a majority in opposition, testified Friday on legislation seeking to create sex-based definitions of “male” and “female” in state law, on a bill largely aimed at K-12 and collegiate sports, bathrooms and state government.

Legislative Bill 89, from State Sen. Kathleen Kauth of Omaha and introduced at the request of Gov. Jim Pillen, would adopt the “Stand With Women Act.”

The bill would define sex in Nebraska as binary — 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.

The legislation mirrors a “Women’s Bill of Rights” that Pillen enacted by executive order in August 2023 and multiple similar orders from President Donald Trump over the past few weeks.

“This is not a political issue,” Kauth told the Government, Military and Veterans Affairs Committee. “This is an issue of common sense, adherence to biology and establishing protections for women and girls.”

‘Common sense’ or ‘basic rights’

Kauth received supportive testimony from Pillen, the Nebraska Family Alliance, Alliance Defending Freedom, Nebraska Catholic Conference and a couple of high-profile student-athletes, including Selina Soule, a former track and field athlete from Connecticut, and Rebekah Allick, a member of the Nebraska volleyball team.

“Maybe I’m too long in the tooth,” Pillen testified. “We just need to move back a generation and have common sense.”

Michelle Jud spoke against the bill on behalf of Rainbow Parents of Nebraska, a recently formed coalition of parents advocating for LGBTQ youths and their families.

“As parents of queer kids, we knew from the moment our children came out to us that they would face more challenges than most,” Jud said. “We didn’t know how hard we would have to fight to protect their basic rights.”

Jud echoed a fellow “rainbow parent” Friday in saying that being queer is the “least interesting thing” about their children, who are artists, singers, poets, multi-sport athletes and leaders in student government.

‘We will not be erased’

By the hearing’s end at 11:55 p.m., about 20 people had spoken in favor of Kauth’s bill. More than 100 people had spoken in opposition. Opponents stretched the hearing well into the night, led by transgender youths and adults, parents, multiple nonprofits and the school board president of the Omaha Public Schools.

“We are here, and we will not be erased,” said Jessie McGrath, a native of Max, Nebraska, veteran and transgender woman who lives in Kauth’s district.

Amos Sobotka, a Nebraska native, who is transgender, said his gender transition gave him “peace” and that passing Kauth’s LB 89 would risk his livelihood, family and community.

“I was raised to believe that all people have value here,” Sobotka said. “I did not come all this way to be degraded and dismissed, and I refuse to accept this travesty.”

New bill amendment

Kauth’s bill, and an amendment she unveiled Friday, would require public K-12 schools, postsecondary institutions and state agencies to designate all bathrooms for use by females, males or families. Restrooms could also be single occupancy and be gender neutral.

The amendment strips placing such requirements on private schools, a decision Kauth said she reached while crafting the amendment with the national Alliance Defending Freedom.

Public schools, along with private schools that compete against or are part of an athletic association with public schools, would need to designate sports teams as for males, females or mixed. Female students could participate in male-only sports if there is no female alternative, such as football or wrestling.

One of Trump’s executive orders called for executive agencies to review and possibly withdraw federal funding from schools or colleges that allow trans student-athletes to participate. On Thursday, a day after Trump signed that order, the National Collegiate Athletic Association reversed allowing trans student-athletes to compete in women’s sports.

Kauth said that while she is “thrilled” about the Trump policy, it can be overturned, and states need specific legislation.

State Sen. Merv Riepe of Ralston, who opposed a 2024 bill from Kauth that was limited at the time to just K-12 sports, restrooms and locker rooms, said he likes Trump’s executive order, describing it as straightforward and that it “took no prisoners.” That Kauth bill fell short by two votes of advancing.

“I will see how this plays out in the next 30 days and defer on any state legislative action,” Riepe said in a Wednesday text.

Existing NCAA, NSAA policies

NCAA President Charlie Baker told a U.S. Senate panel in December that he was aware of fewer than 10 active transgender student-athletes out of the NCAA’s 510,000 participants.

Jeff Stauss, an assistant director for the Nebraska School Activities Association (NSAA), said eight students have applied since 2018 under an existing Gender Participation Policy for the NSAA, the group most public and private schools in the state coordinate with for school athletics.

The policy requires transgender student-athletes to provide affirmation on their gender identity. Trans female students must also demonstrate through medical examination and physiological testing that they do “not possess physical… or physiological advantages over genetic females of the same age group.”

Trans girls must also take one year of hormones or go through gender reassignment surgery, which was banned in the state after Oct. 1, 2023.

That Kauth law also mandated months of gender-identity-focused therapy for youths with gender dysphoria before minors could access puberty blockers or hormone blockers.

Jane Erdenberger, president of the Omaha school board, said the previous restrictions could lead to at least a two-year delay for trans girls before they could even be considered for athletic participation. She said Kauth’s new bill interferes with an OPS vision that every student is daily prepared for success and learning.

Kauth has said school districts can choose whether to use the NSAA model, such as Kearney or Norfolk Public Schools requiring sports participation based on a student’s sex at birth. No public school officials spoke in favor of Kauth’s bill.

Stauss said NSAA doesn’t release specific information about its applications, such as how many were accepted, “to protect the privacy and legal rights of the students and their families.”

“The NSAA is aware of President Trump’s executive order and we are monitoring the legislation in the Nebraska Unicameral,” Stauss said in a statement to the Nebraska Examiner. “The NSAA will comply with any new federal or state law.”

‘A place of sisterhood’

Allick, the Husker volleyball player who testified, joined Kauth in January to unveil the Stand With Women Act. Allick said Friday that there were real-world problems to address — such as children dying, human trafficking, homelessness and hunger — but that women and girls need protection.

“Forgive me for my brazenness and insensitivity to this right now, but women have fought too freaking hard to have space in politics, doctors’ offices, classrooms and sports for all to be taken over yet again by men,” Allick said.

The UNL student-athlete said those with gender dysphoria need compassion, but she said she didn’t want to see a penis in her locker room. She told the committee not to sacrifice women’s safety or opportunities or wait until something tragic happens.

“My locker room is a safe space,” said Allick, who still competes at the University of Nebraska-Lincoln. “It is a place of sisterhood, a place to talk about love lives, hardships, period cramps, things that women talk about and only women understand.”

Kauth said whether even one girl or woman is made to feel threatened or unsafe, or if they lose an opportunity, is, “by definition, a problem.”

Soule, from Connecticut, is one of the lead plaintiffs in an ongoing lawsuit against trans-inclusive sports policies in her state. She told the committee not to let future student-athletes compete against trans student-athletes, as she did in high school. 

“I remember what it was like in the lineup for the race to get into my blocks wanting to win but knowing the outcome long before the start of the race,” Soule testified.

Soule said lawmakers risk the “complete eradication” of women’s sports if they don’t step in.

The value of sports participation

Former student-athletes Emma Haith, from Burke High School and UNL, and Dahly Long, from Omaha Central High School and a senior social work major at the University of Nebraska at Omaha, spoke against the bill.

Long said LB 89 fosters exclusion rather than fairness, and Haith, citing her faith as a Catholic, said she believes in treating all people with dignity and compassion.

“They [sports] teach teamwork, discipline and inclusion,” Haith said at a noon news conference. “This bill contradicts those values by targeting transgender youth and denying them the opportunities that benefit all young people.”

Greg Brown, an attorney, professor of exercise science at the University of Nebraska at Kearney and a fellow of the American College of Sports Medicine, said that to say “sex is complicated” is “intentionally disingenuous about a universal and simple truth.”

“Human beings are either male or female,” Brown said. “Every human that has ever existed owes their existence to the unification of the male gamete sperm with the female gamete ova. There’s no other option when it comes to human procreation.”

Brown said that includes intersex people, about 0.02% of people. 

Male student-athletes also have an advantage as young as 8 years old, Brown said.

“When someone says, ‘Well, it’s only a few trans women,’ they’re asking us to accept unfair male advantages in the female sporting category,” Brown testified.

Committee members weigh in

Freshman State Sen. Dan Lonowski of Hastings aided Kauth with his questions, saying he understood where she was coming from. He served as a wrestling coach for 35 years, but said it wasn’t until girls competed that he saw physical differences.

Kauth’s bill could offer intersex people accommodations under the Americans with Disabilities Act, though under questioning from State Sen. John Cavanaugh of Omaha she said she didn’t know if intersex people were covered already or what accommodations would exist.

“Is it your opinion that trans people have a mental disorder?” Cavanaugh asked Kauth.

“Yes,” she replied.

Cavanaugh asked how the Legislature could direct the University of Nebraska to adopt her bill, as under the Nebraska Constitution and state law the Legislature can’t dictate how NU manages its facilities. That’s up to the NU Board of Regents.

Kauth said enforcement would be like any other law or school policy, leaving wide latitude to colleges, universities and public schools how to implement the directives.

Kathy Wilmot of Beaver City, an NU regent who testified in favor of the bill for the Eagle Forum and in her personal capacity, told the Examiner that regents aren’t currently considering a policy such as Kauth’s.

Erin Feichtinger of the Women’s Fund of Omaha and Abbi Swatsworth of OutNebraska said that a broad enforcement model could open up all women to the subjective view of what is “female.” Swatsworth said the bill reminded her of the Jim Crow era, and she questioned whether people could be forced to “prove” their gender before being allowed to enter a bathroom under the law.

During Kauth’s closing, State Sen. Megan Hunt of Omaha asked where a man “who is six feet tall and has a full beard and big muscles and a vagina” should go to the bathroom. Kauth said they should look for a separate bathroom and that it might be necessary for state agencies or schools to identify an alternative restroom.

Hunt said that could cost taxpayer dollars. She also asked whether Kauth knew for sure the sex of those she had shared a women’s restroom with.

“How do you know I don’t have a penis?” Hunt asked.

“I don’t,” Kauth said.

Hunt earlier in the hearing voiced concern about putting into law that “women are weaker when we know not all women are weaker than all men.” She questioned what legal implications adding those findings could have for other cases “down the road,” such as equal employment or fair pay.

Kauth, who chairs the Legislature’s Business and Labor Committee, said Hunt’s questions were “quite a stretch” and that whether women were “weaker” was in Hunt’s words, not hers.

“If that’s not your intention, I’m happy to have you correct the record right now,” Hunt said.

Kauth responded: “Physically and biologically women and men grow differently, and women are consistently less strong than men.”

The committee took no immediate action on Kauth’s bill. If advanced, the bill would require at least 33 votes in the 49-member Legislature to overcome a promised filibuster.