Rhode Island 2023 Regular Session

Rhode Island Senate Bill S0391 Compare Versions

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

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5	5	2023 -- S 0391
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7	7	LC001518
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9	9	S TATE OF RHODE IS LAND
10	10	IN GENERAL ASSEMBLY
11	11	JANUARY SESSION, A.D. 2023
12	12	____________
13	13
14	14	A N A C T
15	15	RELATING TO EDUCATION -- FAIRNESS IN WOMEN'S SPORTS ACT
16	16	Introduced By: Senator E Morgan
17	17	Date Introduced: February 16, 2023
18	18	Referred To: Senate Judiciary
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21	21	It is enacted by the General Assembly as follows:
22	22	SECTION 1. The general assembly hereby finds that: 1
23	23	(1) There are "inherent differences between men and women," and that these differences 2
24	24	"remain cause for celebration, but not for denigration of the members of either sex or for artificial 3
25	25	constraints on an individual's opportunity," United States v. Virginia, 518 U.S. 515, 533 (1996); 4
26	26	(2) These "inherent differences" range from chromosomal and hormonal differences to 5
27	27	physiological differences; 6
28	28	(3) Men generally have "denser, stronger bones, tendons, and ligaments" and "larger hearts, 7
29	29	greater lung volume per body mass, a higher red blood cell count, and higher hemoglobin," Neel 8
30	30	Burton, The Battle of the Sexes, Psychology Today (July 2, 2012); 9
31	31	(4) Men also have higher natural levels of testosterone, which affects traits such as 10
32	32	hemoglobin levels, body fat content, the storage and use of carbohydrates, and the development of 11
33	33	type 2 muscle fibers, all of which result in men being able to generate higher speed and power 12
34	34	during physical activity, Doriane Lambelet Coleman, Sex in Sport, Law and Contemporary 13
35	35	Problems 63, 74 (2017) (quoting Gina Kolata, Men, Women and Speed. 2 Words: Got 14
36	36	Testosterone?, N.Y. Times (Aug. 21, 2008)); 15
37	37	(5) The biological differences between females and males, especially as it relates to natural 16
38	38	levels of testosterone, "explain the male and female secondary sex characteristics which develop 17
39	39	during puberty and have lifelong effects, including those most important for success in sport: 18
40	40	categorically different strength, speed, and endurance," Doriane Lambelet Coleman and Wickliffe 19
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44	44	Shreve, "Comparing Athletic Performances: The Best Elite Women to Boys and Men," Duke Law 1
45	45	Center for Sports Law and Policy; 2
46	46	(6) While classifications based on sex are generally disfavored, the Supreme Court has 3
47	47	recognized that "sex classifications may be used to compensate women for particular economic 4
48	48	disabilities [they have] suffered, to promote equal employment opportunity, [and] to advance full 5
49	49	development of the talent and capacities of our Nation's people," United States v. Virginia, 518 6
50	50	U.S. 515, 533 (1996); 7
51	51	(7) One place where sex classifications allow for the "full development of the talent and 8
52	52	capacities of our Nation's people" is in the context of sports and athletics; 9
53	53	(8) Courts have recognized that the inherent, physiological differences between males and 10
54	54	females result in different athletic capabilities. See e.g. Kleczek v. Rhode Island Interscholastic 11
55	55	League, Inc., 612 A.2d 734, 738 (R.I. 1992) ("Because of innate physiological differences, boys 12
56	56	and girls are not similarly situated as they enter athletic competition.");Petrie v. Ill. High Sch. Ass'n, 13
57	57	394 N.E.2d 855, 861 (Ill. App. Ct. 1979) (noting that "high school boys [generally possess 14
58	58	physiological advantages over] their girl counterparts" and that those advantages give them an 15
59	59	unfair lead over girls in some sports like "high school track"); 16
60	60	(9) A recent study of female and male Olympic performances since 1983 found that, 17
61	61	although athletes from both sexes improved over the time span, the "gender gap" between female 18
62	62	and male performances remained stable. "These suggest that women's performances at the high 19
63	63	level will never match those of men." Valerie Thibault et al., Women and men in sport performance: 20
64	64	The gender gap has not evolved since 1983, 9 Journal of Sports Science and Medicine 214, 219 21
65	65	(2010); 22
66	66	(10) As Duke law professor and All-American track athlete Doriane Coleman, tennis 23
67	67	champion Martina Navratilova, and Olympic track gold medalist Sanya Richards-Ross recently 24
68	68	wrote: "The evidence is unequivocal that starting in puberty, in every sport except sailing, shooting, 25
69	69	and riding, there will always be significant numbers of boys and men who would beat the best girls 26
70	70	and women in head-to-head competition. Claims to the contrary are simply a denial of science," 27
71	71	Doriane Coleman, Martina Navratilova, et al., Pass the Equality Act, But Don't Abandon Title IX, 28
72	72	Washington Post (Apr. 29, 2019); 29
73	73	(11) The benefits that natural testosterone provides to male athletes is not diminished 30
74	74	through the use of puberty blockers and cross-sex hormones. A recent study on the impact of such 31
75	75	treatments found that even "after twelve (12) months of hormonal therapy," a man who identifies 32
76	76	as a woman and is taking cross-sex hormones "had an absolute advantage" over female athletes and 33
77	77	"will still likely have performance benefits" over women, Tommy Lundberg et al., "Muscle 34
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81	81	strength, size and composition following twelve (12) months of gender-affirming treatment in 1
82	82	transgender individuals: retained advantage for the transwomen," Karolinksa Institutet (Sept. 26, 2
83	83	2019); and 3
84	84	(12) Having separate sex-specific teams furthers efforts to promote sex equality. Sex-4
85	85	specific teams accomplish this by providing opportunities for female athletes to demonstrate their 5
86	86	skill, strength, and athletic abilities while also providing them with opportunities to obtain 6
87	87	recognition and accolades, college scholarships, and the numerous other long-term benefits that 7
88	88	flow from success in athletic endeavors. 8
89	89	SECTION 2. Title 16 of the General Laws entitled "EDUCATION" is hereby amended by 9
90	90	adding thereto the following chapter: 10
91	91	CHAPTER 112 11
92	92	FAIRNESS IN WOMEN'S SPORTS ACT 12
93	93	16-112-1. Short title. 13
94	94	This chapter shall be known and may be cited as the "Fairness in Women's Sports Act". 14
95	95	16-112-2. Designation of athletic teams. 15
96	96	Interscholastic, intercollegiate, intramural, or club athletic teams or sports that are 16
97	97	sponsored by a public school or any public school district activities association or a public 17
98	98	institution of higher education or any higher education institution that is a member of the national 18
99	99	collegiate athletic association (NCAA), national association of intercollegiate athletics (NAIA), or 19
100	100	national junior college athletic association (NJCAA) shall be expressly designated as one of the 20
101	101	following based on biological sex: 21
102	102	(1) Males, men, or boys; 22
103	103	(2) Females, women, or girls; or 23
104	104	(3) Coed or mixed. 24
105	105	(i) Athletic teams or sports designated for females, women, or girls shall not be open to 25
106	106	students of the male sex. 26
107	107	(ii) If disputed, a student may establish sex by presenting a signed physician's statement 27
108	108	that shall indicate the student's sex based solely on: 28
109	109	(A) The student's internal and external reproductive anatomy; 29
110	110	(B) The student's normal endogenously produced levels of testosterone; and 30
111	111	(C) An analysis of the student's genetic makeup. 31
112	112	16-112-3. Protection for educational institutions. 32
113	113	A government entity, any licensing or accrediting organization, or any athletic association 33
114	114	or organization shall not entertain a complaint, open an investigation, or take any other adverse 34
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118	118	action against a school or an institution of higher education for maintaining separate interscholastic, 1
119	119	intercollegiate, intramural, or club athletic teams or sports for students of the female sex. 2
120	120	16-112-4. Cause of action. 3
121	121	(a) Any student who is deprived of an athletic opportunity or suffers any direct or indirect 4
122	122	harm as a result of a violation of this chapter shall have a private cause of action for injunctive 5
123	123	relief, damages, and any other relief available under law against the school or institution of higher 6
124	124	education. 7
125	125	(b) Any student who is subject to retaliation or other adverse action by a school, institution 8
126	126	of higher education, or athletic association or organization as a result of reporting a violation of this 9
127	127	chapter to an employee or representative of the school, institution, or athletic association or 10
128	128	organization, or to any state or federal agency with oversight of schools or institutions of higher 11
129	129	education in the state, shall have a private cause of action for injunctive relief, damages, and any 12
130	130	other relief available under law against the school, institution, or athletic association or 13
131	131	organization. 14
132	132	(c) Any school or institution of higher education that suffers any direct or indirect harm as 15
133	133	a result of a violation of this chapter shall have a private cause of action for injunctive relief, 16
134	134	damages, and any other relief available under law against the government entity, licensing or 17
135	135	accrediting organization, or athletic association or organization. 18
136	136	(d) All civil actions shall be initiated within two (2) years after the harm occurred. Persons 19
137	137	or organizations who prevail on a claim brought pursuant to this section shall be entitled to 20
138	138	monetary damages, including for any psychological, emotional, and physical harm suffered, 21
139	139	reasonable attorneys' fees and costs, and any other appropriate relief. 22
140	140	16-112-5. Severability. 23
141	141	The provisions of this chapter are hereby declared to be severable and if any provision of 24
142	142	this chapter or the application of such provision to any person or circumstance is declared invalid 25
143	143	for any reason, such declaration shall not affect the validity of the remaining portions of this 26
144	144	chapter. 27
145	145	SECTION 3. This act shall take effect January 1, 2024. 28
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152	152	EXPLANATION
153	153	BY THE LEGISLATIVE COUNCIL
154	154	OF
155	155	A N A C T
156	156	RELATING TO EDUCATION -- FAIRNESS IN WOMEN'S SPORTS ACT
157	157	***
158	158	This act would categorize women by their biological identity at birth rather than their 1
159	159	gender identity for purpose of organized sports. A team would be categorized as males, men, or 2
160	160	boys; females, women, or girls; or coed or mixed. If there is a dispute, a student would establish 3
161	161	sex by presenting a signed physician's statement that shall indicate the student's sex. Additionally, 4
162	162	this act would create a cause of action for any student who is deprived of an athletic opportunity or 5
163	163	subject to retaliation as a result of violations of this chapter. 6
164	164	This act would take effect January 1, 2024. 7
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