State Sen. Kathleen Kauth of Omaha asks a question of State Sen. Machaela Cavanaugh of Omaha, a chief opponent of Kauth’s bills that sought to restrict certain youths’ access to health care, bathrooms and sports teams. April 5, 2024. (Zach Wendling/Nebraska Examiner)
LINCOLN — State lawmakers fell two votes short of advancing a proposal Friday that would define K-12 school bathrooms and sporting teams as male or female based on students’ sex at birth.
Legislative Bill 575, the Sports and Spaces Act introduced by State Sen. Kathleen Kauth of Omaha, fell 31-15, after two conservative lawmakers who originally signed on to the bill when it was introduced last year did not vote for the measure: State Sens. Tom Brandt of Plymouth and Merv Riepe of Ralston. That was two votes short of the 33 votes needed to end debate on the bill.
Riepe, who had said his vote would be a “mystery” until the very end, condemned Friday’s last-minute effort on a bill that was advanced to the floor just one day prior, while Brandt questioned how the bill’s policies would be enforced and paid for.
With Friday’s failed vote, the bill is effectively dead for the year. Speaker John Arch of La Vista said there is not enough time to try to combine bills, which could have been a next step to give LB 575 another chance on a different bill next week.
Friday’s vote wasn’t a “terrible surprise,” Kauth said, but she thought Brandt and Riepe would be in support — an internal vote count indicated 32 senators in support with one “leaning.”
Kauth said the measure will return in 2025 and said she is willing to address other senators’ concerns. The proposal could include restrictions on collegiate athletics, as she indicated last August might be next.
In the “audaciousness of going big,” Kauth added, she’ll look at whether more issues should be addressed, such as Gov. Jim Pillen’s “Women’s Bill of Rights.”
“We’ll try it again next year,” Kauth told reporters after the vote.
Riepe was among the first to signal cracks in the legislation last year when he went through the procedural step of removing his name from the bill. At the time, he revealed that he had alerted Kauth to his discontent with the State Board of Education for not stepping up on this issue.
The Ralston senator said he met with multiple transgender students and their families and was impressed with the love and concern he saw. Riepe remarked that they were seeking accommodation, not attention, for “the life they have been given in this very complicated world.”
“Thank God for His creation and the strength of families and friends who love these transgender students and walk the walk with them every day through every challenge without the heavy hand of government,” Riepe said Friday.
Kauth said her bill was about protecting women’s sports and protecting the dignity and privacy of all school-aged children in the most intimate places. Without her bill, she said, “women will lose” and they’ll be robbed of scholarships in addition to trophies. They’ll also miss out, she said, on lessons learned from sports that could prepare them for their careers later in life.
“Women and girls are going to start refusing to participate in sports knowing that the deck is stacked against them,” Kauth said.
State Sen. Dave Murman of Glenvil, Education Committee chair, said the Legislature needed to realize there are physical differences between boys and girls, such as in sports records maintained by the Nebraska School Activities Association.
The Nebraska School Activities Association already has a Gender Participation Policy, which has been in place since January 2016. Less than 10 students have applied and been approved to play on the sporting team of their choice.
Riepe passed out the NSAA policy to all lawmakers Thursday night.
“The NSAA has steadfastly provided oversight and guidance,” Riepe said, noting it allows superintendents to work one-on-one with families “with fairness, safety and respect for all.”
State Sen. Tom Brandt of Plymouth said he hopes Friday is the last time he needs to speak on LB 575, calling Nebraska a “leader in the nation” for its NSAA policy, which is an “excellent document” already working for the state.
State Sen. Lynne Walz of Fremont suggested lawmakers put those regulations into law.
Kauth and State Sen. Teresa Ibach of Sumner expressed concern about the NSAA policy because it allows member schools to adopt their own policies. Two Nebraska districts — in Kearney and Norfolk — subsequently adopted policies similar to LB 575 last year.
Kauth said the policy also advocates for children to use puberty blockers and cross-sex hormones, which she moved to fully ban last year. An amended bill, LB 574, restricted how youths could access those medications.
Riepe also argued the State Board of Education delegated its authority to the Legislature for fear of legal consequences over trying to establish such a policy, choosing “to sidestep its leadership responsibility and place the financial liability on the state Legislature and state taxpayers.”
“Certainly not a profile in courage,” he said. “We are seeking to create a problem that does not exist.”
Kauth said the state board isn’t an option, pointing to a previous conservative effort on library books that fell short last month. She said in 2023 that the board didn’t “have the teeth for it.”
Speaker Arch repeated Friday morning that the Legislature is running out of time, with four days left after Friday for lawmaking.
Riepe blasted lawmakers for spending time on LB 575 and said local control mattered to school boards only until an issue became “tough,” such as restricting library books or sporting teams and bathrooms. Brandt and Riepe opposed that library measure last month.
State Sen. Wendy DeBoer of Omaha said there was probably a local board that could be spending time on these issues instead of state lawmakers who should be spending their time on property taxes and a revenue package for the whole state.
“Can’t we spend our time and our intellectual labor, which we need in order to get this right, about our tax packages?” DeBoer said.
State Sen. Carol Blood of Bellevue, who spent much of Friday questioning Kauth on the legislative history of her bill, said women don’t need the Legislature’s protections.
“We aren’t waiting for some man on a white horse or prince on a horse to come and rescue us,” Blood said, adding that women are winning, not losing.
State Sen. Brian Hardin of Gering said that to his knowledge, the problems identified in LB 575 aren’t a problem in his western Nebraska district, “but you don’t close the gate after the cattle are out.”
“You don’t hit the brakes until after you rear-end the car in front of you and you don’t put on sunscreen after you’ve been burned,” he said.
State Sen. Barry DeKay of Niobrara, who has officiated K-12 sports for 40 years, said he doesn’t foresee the State Board of Education tackling the issue and said inaction will end up to a “very weird gray area” where different schools have different policies on sports and bathrooms.
He said this could create “quite a mess” and lead to a “massive state controversy.”
DeKay said he has never refereed a game that included a trans player, to his knowledge.
“I’m not concerned about the last 40 years,” he told the Examiner after the debate. “I’m concerned about what might happen to my grandkids in the next 20 years.”
State Sen. George Dungan of Lincoln also noted the “legal precarious grounds” that LB 575 sits on, even after a Tuesday advisory opinion from Nebraska Attorney General Mike Hilgers. The attorney general opined that the bill, as introduced, would pass “constitutional muster.”
An Education Committee amendment advanced with LB 575 in a 5-3 vote added a new restriction that would prohibit transgender boys from playing any sports if they are taking cross-sex hormones.
The amendment would add the word “transgender” to the bill, undercutting Hilgers’ opinion that it “cannot be said to single out transgender students” because it didn’t mention gender identity. Kauth listened to concerns raised in the committee and offered on Friday to take out this part.
“But that’s not trying to fix it in good faith,” Dungan said. “That’s trying to put the genie back in the bottle or the toothpaste back in the tube because the intent of this bill has been made clear. The intent of this bill is to discriminate against transgender youth.”
LB 575 would define “male” and “female” based on students’ chromosomes. Multiple senators questioned how schools would feasibly apply that policy.
The proposal would have left implementation to each of Nebraska’s 244 school districts.
“How do you tell when you’re looking at a child?” Riepe asked. “Are they like shirt sizes? Are they an ‘X’ and a double ‘X’ or triple ‘X,’ and what are they?”
State Sen. Jen Day of Omaha, who said she has played sports from an early age, including against men, echoed those concerns that no one has ever asked for her or her children’s chromosomes.
“No one came into the delivery room when my children were born and did a test to see what chromosomes they have,” Day said. “How do we know?”
Kauth told the Nebraska Examiner on Thursday that student birth certificates or a doctor’s attestation, such as through an annual physical examination, could satisfy her bill’s requirement.
Riepe said Thursday night he has signed many birth certificates — and none included information about chromosomes.
Brandt questioned who would pay for student chromosomal tests or extra bathrooms and lockers and asked if it would be an unfunded mandate on some of the smallest schools in his district, whichare “very strapped for cash.”
He also asked how LB 575 would apply to multi-chromosomal or intersex children, who are not trans and might be born with multiple sex characteristics. They might not even know that part of their identity — their parents might never have told them, Brandt added.
For a father with his young daughter or mother with her young son, Brandt asked how those parents could help their children go to the bathroom at a school event without violating the law.
“This bill is not thought out enough to address this,” Brandt said.
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by Zach Wendling, Nebraska Examiner
April 5, 2024
by Zach Wendling, Nebraska Examiner
April 5, 2024
LINCOLN — State lawmakers fell two votes short of advancing a proposal Friday that would define K-12 school bathrooms and sporting teams as male or female based on students’ sex at birth.
Legislative Bill 575, the Sports and Spaces Act introduced by State Sen. Kathleen Kauth of Omaha, fell 31-15, after two conservative lawmakers who originally signed on to the bill when it was introduced last year did not vote for the measure: State Sens. Tom Brandt of Plymouth and Merv Riepe of Ralston. That was two votes short of the 33 votes needed to end debate on the bill.
Riepe, who had said his vote would be a “mystery” until the very end, condemned Friday’s last-minute effort on a bill that was advanced to the floor just one day prior, while Brandt questioned how the bill’s policies would be enforced and paid for.
With Friday’s failed vote, the bill is effectively dead for the year. Speaker John Arch of La Vista said there is not enough time to try to combine bills, which could have been a next step to give LB 575 another chance on a different bill next week.
Friday’s vote wasn’t a “terrible surprise,” Kauth said, but she thought Brandt and Riepe would be in support — an internal vote count indicated 32 senators in support with one “leaning.”
Kauth said the measure will return in 2025 and said she is willing to address other senators’ concerns. The proposal could include restrictions on collegiate athletics, as she indicated last August might be next.
In the “audaciousness of going big,” Kauth added, she’ll look at whether more issues should be addressed, such as Gov. Jim Pillen’s “Women’s Bill of Rights.”
“We’ll try it again next year,” Kauth told reporters after the vote.
Riepe was among the first to signal cracks in the legislation last year when he went through the procedural step of removing his name from the bill. At the time, he revealed that he had alerted Kauth to his discontent with the State Board of Education for not stepping up on this issue.
The Ralston senator said he met with multiple transgender students and their families and was impressed with the love and concern he saw. Riepe remarked that they were seeking accommodation, not attention, for “the life they have been given in this very complicated world.”
“Thank God for His creation and the strength of families and friends who love these transgender students and walk the walk with them every day through every challenge without the heavy hand of government,” Riepe said Friday.
Kauth said her bill was about protecting women’s sports and protecting the dignity and privacy of all school-aged children in the most intimate places. Without her bill, she said, “women will lose” and they’ll be robbed of scholarships in addition to trophies. They’ll also miss out, she said, on lessons learned from sports that could prepare them for their careers later in life.
“Women and girls are going to start refusing to participate in sports knowing that the deck is stacked against them,” Kauth said.
State Sen. Dave Murman of Glenvil, Education Committee chair, said the Legislature needed to realize there are physical differences between boys and girls, such as in sports records maintained by the Nebraska School Activities Association.
The Nebraska School Activities Association already has a Gender Participation Policy, which has been in place since January 2016. Less than 10 students have applied and been approved to play on the sporting team of their choice.
Riepe passed out the NSAA policy to all lawmakers Thursday night.
“The NSAA has steadfastly provided oversight and guidance,” Riepe said, noting it allows superintendents to work one-on-one with families “with fairness, safety and respect for all.”
State Sen. Tom Brandt of Plymouth said he hopes Friday is the last time he needs to speak on LB 575, calling Nebraska a “leader in the nation” for its NSAA policy, which is an “excellent document” already working for the state.
State Sen. Lynne Walz of Fremont suggested lawmakers put those regulations into law.
Kauth and State Sen. Teresa Ibach of Sumner expressed concern about the NSAA policy because it allows member schools to adopt their own policies. Two Nebraska districts — in Kearney and Norfolk — subsequently adopted policies similar to LB 575 last year.
Kauth said the policy also advocates for children to use puberty blockers and cross-sex hormones, which she moved to fully ban last year. An amended bill, LB 574, restricted how youths could access those medications.
Riepe also argued the State Board of Education delegated its authority to the Legislature for fear of legal consequences over trying to establish such a policy, choosing “to sidestep its leadership responsibility and place the financial liability on the state Legislature and state taxpayers.”
“Certainly not a profile in courage,” he said. “We are seeking to create a problem that does not exist.”
Kauth said the state board isn’t an option, pointing to a previous conservative effort on library books that fell short last month. She said in 2023 that the board didn’t “have the teeth for it.”
Speaker Arch repeated Friday morning that the Legislature is running out of time, with four days left after Friday for lawmaking.
Riepe blasted lawmakers for spending time on LB 575 and said local control mattered to school boards only until an issue became “tough,” such as restricting library books or sporting teams and bathrooms. Brandt and Riepe opposed that library measure last month.
State Sen. Wendy DeBoer of Omaha said there was probably a local board that could be spending time on these issues instead of state lawmakers who should be spending their time on property taxes and a revenue package for the whole state.
“Can’t we spend our time and our intellectual labor, which we need in order to get this right, about our tax packages?” DeBoer said.
State Sen. Carol Blood of Bellevue, who spent much of Friday questioning Kauth on the legislative history of her bill, said women don’t need the Legislature’s protections.
“We aren’t waiting for some man on a white horse or prince on a horse to come and rescue us,” Blood said, adding that women are winning, not losing.
State Sen. Brian Hardin of Gering said that to his knowledge, the problems identified in LB 575 aren’t a problem in his western Nebraska district, “but you don’t close the gate after the cattle are out.”
“You don’t hit the brakes until after you rear-end the car in front of you and you don’t put on sunscreen after you’ve been burned,” he said.
State Sen. Barry DeKay of Niobrara, who has officiated K-12 sports for 40 years, said he doesn’t foresee the State Board of Education tackling the issue and said inaction will end up to a “very weird gray area” where different schools have different policies on sports and bathrooms.
He said this could create “quite a mess” and lead to a “massive state controversy.”
DeKay said he has never refereed a game that included a trans player, to his knowledge.
“I’m not concerned about the last 40 years,” he told the Examiner after the debate. “I’m concerned about what might happen to my grandkids in the next 20 years.”
State Sen. George Dungan of Lincoln also noted the “legal precarious grounds” that LB 575 sits on, even after a Tuesday advisory opinion from Nebraska Attorney General Mike Hilgers. The attorney general opined that the bill, as introduced, would pass “constitutional muster.”
An Education Committee amendment advanced with LB 575 in a 5-3 vote added a new restriction that would prohibit transgender boys from playing any sports if they are taking cross-sex hormones.
The amendment would add the word “transgender” to the bill, undercutting Hilgers’ opinion that it “cannot be said to single out transgender students” because it didn’t mention gender identity. Kauth listened to concerns raised in the committee and offered on Friday to take out this part.
“But that’s not trying to fix it in good faith,” Dungan said. “That’s trying to put the genie back in the bottle or the toothpaste back in the tube because the intent of this bill has been made clear. The intent of this bill is to discriminate against transgender youth.”
LB 575 would define “male” and “female” based on students’ chromosomes. Multiple senators questioned how schools would feasibly apply that policy.
The proposal would have left implementation to each of Nebraska’s 244 school districts.
“How do you tell when you’re looking at a child?” Riepe asked. “Are they like shirt sizes? Are they an ‘X’ and a double ‘X’ or triple ‘X,’ and what are they?”
State Sen. Jen Day of Omaha, who said she has played sports from an early age, including against men, echoed those concerns that no one has ever asked for her or her children’s chromosomes.
“No one came into the delivery room when my children were born and did a test to see what chromosomes they have,” Day said. “How do we know?”
Kauth told the Nebraska Examiner on Thursday that student birth certificates or a doctor’s attestation, such as through an annual physical examination, could satisfy her bill’s requirement.
Riepe said Thursday night he has signed many birth certificates — and none included information about chromosomes.
Brandt questioned who would pay for student chromosomal tests or extra bathrooms and lockers and asked if it would be an unfunded mandate on some of the smallest schools in his district, whichare “very strapped for cash.”
He also asked how LB 575 would apply to multi-chromosomal or intersex children, who are not trans and might be born with multiple sex characteristics. They might not even know that part of their identity — their parents might never have told them, Brandt added.
For a father with his young daughter or mother with her young son, Brandt asked how those parents could help their children go to the bathroom at a school event without violating the law.
“This bill is not thought out enough to address this,” Brandt said.
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Nebraska Examiner is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Nebraska Examiner maintains editorial independence. Contact Editor Cate Folsom for questions: info@nebraskaexaminer.com. Follow Nebraska Examiner on Facebook and Twitter.
Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our website. AP and Getty images may not be republished. Please see our republishing guidelines for use of any other photos and graphics.
Zach rejoins the Nebraska Examiner after studying abroad in Antigua, Guatemala, following a yearlong Examiner internship. His coverage focus areas have included politics and government, health and well-being and higher education.
Nebraska Examiner is part of States Newsroom, the nation’s largest state-focused nonprofit news organization.
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Nebraskans want accountability from their elected officials and government. They want to know whether their tax dollars are being well-spent, whether state agencies and local governments are responsive to the people and whether officials, programs and policies are working for the common good. The Nebraska Examiner is a nonprofit, independent news source committed to providing news, scoops and reports important to our state.
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