Maryland 2023 Regular Session

Maryland House Bill HB359 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1
2	2
3	3	EXPLANATION: CAPITALS INDICATE MATTER ADDE D TO EXISTING LAW .
4	4	[Brackets] indicate matter deleted from existing law.
5	5	hb0359
6	6
7	7	HOUSE BILL 359
8	8	F1, D5 3lr1211
9	9	HB 757/22 – W&M
10	10	By: Delegates Szeliga, Adams, Arentz, Arikan, Baker, Bouchat, Buckel, Chisholm,
11	11	Ciliberti, Fisher, Ghrist, Grammer, Griffith, Hartman, Hinebaugh,
12	12	Hornberger, Jacobs, Kipke, R. Long, Mangione, McComas, Metzgar, Miller,
13	13	M. Morgan, T. Morgan, Nawrocki, Otto, Reilly, Rose, Schmidt, Tomlinson,
14	14	Valentine, and Wivell
15	15	Introduced and read first time: January 26, 2023
16	16	Assigned to: Ways and Means
17	17
18	18	A BILL ENTITLED
19	19
20	20	AN ACT concerning 1
21	21
22	22	Education – Interscholastic and Intramural Junior Varsity and Varsity Teams 2
23	23	and Sports – Designation Based on Sex 3
24	24	(Save Women’s Sports Act) 4
25	25
26	26	FOR the purpose of requiring certain interscholastic and intramural junior varsity and 5
27	27	varsity athletic teams or sports sponsored by certain schools to be expressly 6
28	28	designated based on biological sex; prohibiting certain entities from taking certain 7
29	29	adverse actions against a school or county board of education for maintaining 8
30	30	separate interscholastic and intramural junior varsity and varsity athletic teams 9
31	31	and sports for students of the female sex; providing that certain individuals have the 10
32	32	right to bring a civil action under certain circumstances; and generally relating to 11
33	33	interscholastic and intramural junior varsity and varsity teams and sports of public 12
34	34	and nonpublic schools. 13
35	35
36	36	BY adding to 14
37	37	Article – Education 15
38	38	Section 7–118 16
39	39	Annotated Code of Maryland 17
40	40	(2022 Replacement Volume) 18
41	41
42	42	Preamble 19
43	43
44	44	WHEREAS, The General Assembly finds that there are two biological sexes, female 20
45	45	and male, and that a person’s sex is objectively determined by genetics and anatomy 21
46	46	existing at the time of birth; and 22
47	47	2 HOUSE BILL 359
48	48
49	49
50	50	WHEREAS, There are “[i]nherent differences between men and women,” and that 1
51	51	these differences “remain cause for celebration, but not for denigration of the members of 2
52	52	either sex or for artificial constraints on an individual’s opportunity.” United States v. 3
53	53	Virginia, 518 U.S. 515, 533 (1996); and 4
54	54
55	55	WHEREAS, The “inherent differences” between men and women range from 5
56	56	chromosomal and hormonal differences to physiological differences; and 6
57	57
58	58	WHEREAS, Men generally have “denser, stronger bones, tendons, and ligaments” 7
59	59	and “larger hearts, greater lung volume per body mass, a higher red blood cell count, and 8
60	60	higher hemoglobin.” Neel Burton, The Battle of the Sexes, PSYCHOL. TODAY (July 2, 9
61	61	2012), https://www.psychologytoday.com/blog/hide–andseek/201207/the–battle–the–sexes; 10
62	62	and 11
63	63
64	64	WHEREAS, Men also have higher natural levels of testosterone, which affects traits 12
65	65	such as hemoglobin levels, body fat content, the storage and use of carbohydrates, and the 13
66	66	development of Type 2 muscle fibers, all of which result in men being able to generate 14
67	67	higher speed and power during physical activity. Doriane Lambelet Coleman, Sex in Sport, 15
68	68	80 LAW AND CONTEMPORARY PROBLEMS 63, 74 (2017) (quoting Gina Kolata, Men, 16
69	69	Women and Speed. 2 Words: Got Testosterone?, N.Y. TIMES (Aug. 21, 2008)); and 17
70	70
71	71	WHEREAS, The biological differences between females and males, especially as they 18
72	72	relate to natural levels of testosterone, “explain the male and female secondary sex 19
73	73	characteristics which develop during puberty and have lifelong effects, including those most 20
74	74	important for success in sport: categorically different strength, speed, and endurance.” 21
75	75	Doriane Lambelet Coleman and Wickliffe Shreve, “Comparing Athletic Performances: The 22
76	76	Best Elite Women to Boys and Men,” Duke Law Center for Sports Law and Policy, 23
77	77	https://web.law.duke.edu/sports/sex–sport/comparative–athletic–performance/; and 24
78	78
79	79	WHEREAS, While classifications based on sex are generally disfavored, the Supreme 25
80	80	Court has recognized that “sex classifications may be used to compensate women for 26
81	81	particular economic disabilities [they have] suffered, to promote equal employment 27
82	82	opportunity, [and] to advance full development of the talent and capacities of our Nation’s 28
83	83	people.” United States v. Virginia, 518 U.S. 515, 533 (1996) (internal citations and 29
84	84	quotation marks omitted); and 30
85	85
86	86	WHEREAS, One place where sex classifications allow for the “full development of 31
87	87	the talent and capacities of our Nation’s people” is in the context of sports and athletics; 32
88	88	and 33
89	89
90	90	WHEREAS, Courts have recognized that the inherent, physiological differences 34
91	91	between males and females result in different athletic capabilities. See, e.g., Kleczek v. 35
92	92	Rhode Island Interscholastic League, Inc., 612 A.2d 734, 738 (R.I. 1992) (“Because of innate 36
93	93	physiological differences, boys and girls are not similarly situated as they enter athletic 37
94	94	competition.”); Petrie v. Ill. High Sch. Ass’n, 394 N.E.2d 855, 861 (Ill. App. Ct. 1979) (noting 38
95	95	that “high school boys [generally possess physiological advantages over] their girl 39 HOUSE BILL 359 3
96	96
97	97
98	98	counterparts” and that those advantages give them an unfair lead over girls in some sports 1
99	99	like “high school track”); and 2
100	100
101	101	WHEREAS, A recent study of female and male Olympic performances since 1983 3
102	102	found that, although athletes from both sexes improved over the time span, the “gender 4
103	103	gap” between female and male performances remained stable. “These suggest that women’s 5
104	104	performances at the high level will never match those of men.” Valerie Thibault, et al., 6
105	105	Women and men in sport performance: The gender gap has not evolved since 1983, 9 7
106	106	Journal of Sports Science and Medicine 214, 219 (2010); and 8
107	107
108	108	WHEREAS, As Duke Law professor and All –American track athlete Doriane 9
109	109	Coleman, tennis champion Martina Navratilova, and Olympic track gold medalist Sanya 10
110	110	Richards–Ross recently wrote: “The evidence is unequivocal that starting in puberty, in 11
111	111	every sport except sailing, shooting and riding, there will always be significant numbers of 12
112	112	boys and men who would beat the best girls and women in head–to–head competition. 13
113	113	Claims to the contrary are simply a denial of science.” Doriane Coleman, Martina 14
114	114	Navratilova, et al., Pass the Equality Act, But Don’t Abandon Title IX, WASHINGTON 15
115	115	POST (Apr. 29, 2019), https://wapo.st/2VKlNN1; and 16
116	116
117	117	WHEREAS, The benefits that natural testosterone provides to male athletes are not 17
118	118	diminished through the use of puberty blockers and cross–sex hormones. A recent study on 18
119	119	the impact of such treatments found that policies like those of the International Olympic 19
120	120	Committee that require biological males to undergo at least one year of testosterone 20
121	121	suppression before competing in women’s sports do not create a level playing field. “[T]he 21
122	122	reduction in testosterone levels required by many sports federation transgender policies is 22
123	123	insufficient to remove or reduce the male advantage by any meaningful degree.” For 23
124	124	example, “the muscle mass advantage males possess over females, and potentially the 24
125	125	performance implications thereof, are not removed by 12 months of testosterone 25
126	126	suppression.” Instead, the study concluded that “The data presented here demonstrates 26
127	127	that the male physical performance advantage over females, attributed to superior 27
128	128	anthropometric and muscle mass/strength parameters achieved at puberty, is not removed 28
129	129	by the current regimen of testosterone suppression permitting participation of transgender 29
130	130	women in female sports categories. Rather, it appears that the male performance 30
131	131	advantage is largely retained by transgender women and thus remains substantial.” 31
132	132	Hilton, E.N.; Lundberg, T.R. Transgender Women in The Female Category of Sport: Is the 32
133	133	Male Performance Advantage Removed by Testosterone Suppression?. Preprints 2020, 33
134	134	2020050226 (doi: 10.20944/preprints202005.0226.v1); and 34
135	135
136	136	WHEREAS, Having separate sex –specific teams furthers efforts to promote sex 35
137	137	equality. Sex–specific teams accomplish this by providing opportunities for female athletes 36
138	138	to demonstrate their skill, strength, and athletic abilities while also providing them with 37
139	139	opportunities to obtain recognition and accolades, college scholarships, and the numerous 38
140	140	other long–term benefits that flow from success in athletic endeavors; now, therefore, 39
141	141
142	142	SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND, 40
143	143	That the Laws of Maryland read as follows: 41
144	144	4 HOUSE BILL 359
145	145
146	146
147	147	Article – Education 1
148	148
149	149	7–118. 2
150	150
151	151	(A) (1) IN THIS SECTION THE F OLLOWING WORDS HAVE THE ME ANINGS 3
152	152	INDICATED. 4
153	153
154	154	(2) “STUDENT OF THE FEMALE SEX” MEANS A STUDENT WHOS E 5
155	155	BIOLOGICAL SEX IS FE MALE. 6
156	156
157	157	(3) “STUDENT OF THE MALE S EX” MEANS A STUDENT WHOS E 7
158	158	BIOLOGICAL SEX IS MA LE. 8
159	159
160	160	(B) THIS SECTION APPLIES TO: 9
161	161
162	162	(1) PUBLIC HIGH SCHOOLS; AND 10
163	163
164	164	(2) NONPUBLIC HIGH SCHOOLS WHOSE STUDEN T ATHLETES OR 11
165	165	ATHLETIC TEAMS COMPE TE AGAINST STUDENT A THLETES OR ATHLETIC TEAMS 12
166	166	FROM PUBLIC HIGH SCHOOLS IN THE STATE. 13
167	167
168	168	(C) (1) AN INTERSCHOLASTIC OR INTRAMURAL JUNIOR VARSITY OR 14
169	169	VARSITY ATHLETIC TEAM OR SPO RT THAT IS SPONSORED BY A PUBLIC OR 15
170	170	NONPUBLIC HIGH SCHOOL SHALL BE EXPR ESSLY DESIGNATED AS ONE OF THE 16
171	171	FOLLOWING BASED ON B IOLOGICAL SEX: 17
172	172
173	173	(I) A BOYS, MALE, OR MEN’S TEAM OR SPORT ; 18
174	174
175	175	(II) A GIRLS, FEMALE, OR WOMEN’S TEAM OR SPORT ; OR 19
176	176
177	177	(III) A COEDUCATIONAL OR MIX ED TEAM OR SPORT . 20
178	178
179	179	(2) AN INTERSCHOLASTIC OR INTRAMURAL JUNIOR VARSITY OR 21
180	180	VARSITY ATHLETIC TEAM OR SPO RT DESIGNATED FOR GI RLS, FEMALES, OR WOMEN 22
181	181	MAY NOT INCLUDE STUD ENTS OF THE MALE SEX . 23
182	182
183	183	(D) A GOVERNMENTAL ENTITY , A LICENSING OR ACCREDIT ING 24
184	184	ORGANIZATION , OR AN ATHLETIC ASSOC IATION OR ORGANIZATI ON MAY NOT ACCEPT 25
185	185	A COMPLAINT, CONDUCT AN INVESTIGA TION, OR TAKE ANY OTHER AD VERSE ACTION 26
186	186	AGAINST A SCHOOL OR COUNTY BOARD FOR MAI NTAINING SEPARATE 27
187	187	INTERSCHOLASTIC OR I NTRAMURAL JUNIOR VARSITY OR VA RSITY ATHLETIC TEAMS 28
188	188	OR SPORTS FOR STUDEN TS OF THE FEMALE SEX . 29
189	189	HOUSE BILL 359 5
190	190
191	191
192	192	(E) (1) (I) A STUDENT WHO IS DEPRI VED OF AN ATHLETIC 1
193	193	OPPORTUNITY OR SUFFE RS ANY DIRECT OR IND IRECT HARM AS A RESU LT OF A 2
194	194	VIOLATION OF THIS SE CTION MAY BRING A CI VIL ACTION AGAINST THE SCHOOL THE 3
195	195	STUDENT ATTENDS . 4
196	196
197	197	(II) A STUDENT WHO IS SUBJE CT TO RETALIATION OR OTHER 5
198	198	ADVERSE ACTION BY A SCHOOL OR AN ATHLETI C ASSOCIATION OR ORG ANIZATION 6
199	199	AS A RESULT OF REPOR TING A VIOLATION OF THIS SECTION TO AN E MPLOYEE OR 7
200	200	REPRESENTATIVE OF THE SCHOOL , ATHLETIC ASSOCIATION OR ORGANIZATION , OR 8
201	201	ANY STATE OR FEDERAL AGEN CY WITH OVERSIGHT OF SCHOOLS IN THE STATE MAY 9
202	202	BRING A CIVIL ACTION AGAINST THE SCHOOL O R ATHLETIC ASSOCIATI ON OR 10
203	203	ORGANIZATION . 11
204	204
205	205	(III) A SCHOOL THAT SUFFERS ANY DIRECT OR IN DIRECT HARM 12
206	206	FROM A GOVERNMENTAL ENTITY, A LICENSING OR ACCRE DITING ORGANIZATION , 13
207	207	OR AN ATHLETIC ASSOC IATION OR ORGANIZATI ON AS A RESULT OF A VIOLATION OF 14
208	208	THIS SECTION MAY BRI NG A CIVIL ACTION AG AINST THE GOVERNMENT AL ENTITY, 15
209	209	LICENSING OR ACCREDI TING ORGANI ZATION, OR ATHLETIC ASSOCIAT ION OR 16
210	210	ORGANIZATION . 17
211	211
212	212	(2) A CIVIL ACTION INITIAT ED UNDER THIS SECTIO N MUST BE 18
213	213	INITIATED WITHIN 2 YEARS AFTER THE HARM OCCURRED. 19
214	214
215	215	(3) AN INDIVIDUAL WHO PRE VAILS IN A CIVIL ACT ION UNDER THIS 20
216	216	SECTION MAY RECOVER : 21
217	217
218	218	(I) MONETARY DAMAGES , INCLUDING DAMAGES FO R ANY 22
219	219	PSYCHOLOGICAL , EMOTIONAL, AND PHYSICAL HARM SU FFERED; 23
220	220
221	221	(II) REASONABLE ATTORNEY ’S FEES AND COSTS ; AND 24
222	222
223	223	(III) ANY OTHER RELIEF , INCLUDING AN INJUNCT ION, AS THE 25
224	224	COURT MAY DETERMINE APPROPRIATE . 26
225	225
226	226	(F) THIS SECTION MAY BE KNOWN AND CIT ED AS THE SAVE WOMEN’S 27
227	227	SPORTS ACT OR SELINA’S LAW. 28
228	228
229	229	SECTION 2. AND BE IT FURTHER ENACTED, That, if any provision of this Act or 29
230	230	the application thereof to any person or circumstance is held invalid for any reason in a 30
231	231	court of competent jurisdiction, the provision shall be construed to give the provision the 31
232	232	maximum effect permitted by law unless the provision is held to be absolutely invalid. 32
233	233
234	234	SECTION 3. AND BE IT FURTHER ENACTED, That, if any provision of this Act or 33
235	235	the application thereof to any person or circumstance is held invalid for any reason in a 34 6 HOUSE BILL 359
236	236
237	237
238	238	court of competent jurisdiction, the invalidity does not affect other provisions or any other 1
239	239	application of this Act that can be given effect without the invalid provision or application, 2
240	240	and for this purpose the provisions of this Act are declared severable. 3
241	241
242	242	SECTION 4. AND BE IT FURTHER ENACTED, That this Act shall take effect July 4
243	243	1, 2023. 5
244	244