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