Sponsor ‘cautiously optimistic’ in votes to define male, female in Nebraska law before debate

LINCOLN — The anticipated debate on whether Nebraska lawmakers will define “male” and “female” in state law, largely for school bathrooms and sports, kicks off Tuesday afternoon, with one conservative holdout no longer “leaning” in opposition.

Debate on Legislative Bill 89, the “Stand With Women Act” from State Sen. Kathleen Kauth of the Millard area, is set to begin Tuesday by 3 p.m. for up to four hours of debate. LB 89 seeks to restrict bathrooms, sports teams and locker rooms at public K-12 schools and colleges, or in the case of private schools competing against public schools in sports, to individuals’ sex at birth.

Speaker John Arch of La Vista, who sets the Legislature’s daily agenda, has designated LB 89 as “controversial and emotionally charged,” meaning half the debate time as other bills.

‘Those are your rights’

Under a proposed committee amendment, sex would be defined as 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.

In addition to schools, state agencies would need to generally enforce any applicable rules, regulations, administrative decisions or duties according to someone’s sex.

Kauth said she has been told by some of her Democratic colleagues that she has “no idea what’s in store” for LB 89’s debate, that it could be “pretty aggressive and brutal.” Still, she said she remains grateful for her colleagues who will stand with her and that she is “cautiously optimistic” that she will have 33 votes, the threshold needed to shut off debate after four hours.

Kauth said families have reached out to her since she introduced the issue for the first time in the Legislature two years ago. Some of them “fear being bullied” by teachers and administrators, Kauth said.

“They don’t want to be looked at as mean, and it is never mean to want to have your privacy and your safety and your opportunity protected,” Kauth said. “Those are your rights.”

‘Creating confusion’

At LB 89’s public hearing in February, State Sen. Megan Hunt of Omaha, who has filed motions to lead debate against the bill, repeatedly questioned Kauth how someone would know if someone was in the “right” bathroom if her bill passed. Hunt said that of some trans people who testified against Kauth’s bill, “I had no idea they were trans.” Hunt has also asked what would happen to intersex students.

“If I saw them in the bathroom, I wouldn’t think a thing — that’s a beautiful woman, that’s a handsome man,” Hunt told Kauth at the time. “What this is doing is creating confusion for those people because they do fear arrest. They do fear being kicked out of a space.”

State Sen. John Cavanaugh of Omaha, who sits on the Government, Military and Veterans Affairs Committee with Hunt, said after the bill advanced 5-3 from committee: “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.”

LB 89 provides an exception to the bathroom requirements for parents of children or caregivers of someone with a disability who is not the same sex as the adult.

Schools would need to designate bathrooms and locker rooms for use by females or males only, unless they are single occupancy. Family use bathrooms could also be designated.

A ‘softened’ opponent

Among the senators being eyed to get to 33 votes — the threshold needed to shut off debate after a set amount of time — is State Sen. Merv Riepe of Ralston, a Republican.

In the officially nonpartisan Legislature, Republicans maintain 33 seats while Democrats hold 15 seats. The remaining lawmaker is registered nonpartisan but votes with fellow progressives.

Since LB 89 was introduced in January, Riepe has described himself as a “doubting Thomas” on the bill and said that he was “leaning” against voting for it. But now, he said he is “leaning” toward voting for the bill for the first time. 

State Sen. Merv Riepe still the center of attention in Nebraska Legislature

He said he’s “softened” on the issue. He was previously not just a “no” but a “Hell no” on the bill, in part because of anger that the State Board of Education wasn’t taking up the issue. However, he said he wants to “protect women’s sports,” as other supporters have said is their goal.

Riepe said he can “only be the maverick in so many cases,” referring to his position as a critical vote on multiple bills the past few years, including those from Kauth.

Last week, Riepe said he would take the extended weekend to review LB 89, including the amendment to require doctors to verify a student’s sex before sports participation. When he first heard of that requirement, the longtime hospital administrator thought it could be “busy work.”

In 2024, Riepe was one of two Republicans who didn’t vote for a previous version of Kauth’s bill, at the time limited to K-12 sports, locker rooms and bathrooms. The bill fell two votes short. 

Getting around Riepe

There have also been efforts to get around Riepe’s vote, if needed, such as through Democratic State Sens. Jane Raybould of Lincoln, Jason Prokop of Lincoln or Dan Quick of Grand Island, multiple senators confirmed to the Nebraska Examiner.

Raybould said she, for example, was called into Pillen’s office earlier this month. After discussing the opening of a Super Saver in Pillen’s hometown of Columbus, a grocery chain that Raybould’s family operates, Pillen asked if Raybould could be counted on for Kauth’s bill.

In part of the exchange, Raybould said, she noted a distinction for transgender students and told Pillen she couldn’t vote for LB 89. She cited meetings with families and children who would be impacted, such as those from the nonprofit Rainbow Parents that formed over the past two years in response to Kauth’s legislation.

Raybould also brought LB 605 this year to enshrine regulations from the Nebraska School Activities Association for transgender sports participation into law. She later withdrew the bill.

Prokop, a more moderate freshman senator, said he will not vote for Kauth’s bill. His close ally in a similar swing vote position, State Sen. Eliot Bostar of Lincoln, confirmed the same.

Quick declined to comment on the bill late last week.

A different federal landscape

Many of the components of Kauth’s LB 89 have already been addressed in a 2023 executive order from Pillen (for state agencies) and in 2025 executive orders from President Donald Trump (for school sports).

Trump and his education officials have threatened to pull federal funding from schools that allow student-athletes to participate according to gender identity, not sex. The Nebraska School Activities Association and National Collegiate Athletics Association each had narrow policies that were amended shortly after Trump’s executive orders.

Some opponents to Kauth’s legislation look to the impact of those state and national executive orders as making LB 89 obsolete. Riepe, for example, previously said that if Trump’s orders could last for the four years of his presidency, then LB 89 might be able to wait, too.

Kauth acknowledged LB 89 is coming under a very different federal administration than the past two years but that executive orders can be overturned. 

She said the state must protect its citizens.

“If we are not willing to govern ourselves, then someone else will do it for us,” Kauth said. “I would prefer to be the ones governing ourselves.”