2023S0054-T 01/23/23
By: Middleton S.B. No. 649
A BILL TO BE ENTITLED
AN ACT
relating to participation in athletic activities based on
biological sex; providing a civil right to action for K-12 athletes
and college athletes.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. SHORT TITLE. This Act may be cited as the Save
Women's Sports Act.
SECTION 2. The heading to Section 33.0834, Education Code,
is amended to read as follows:
Sec. 33.0834. [INTERSCHOLASTIC] ATHLETIC PARTICIPATION
[COMPETITION] BASED ON BIOLOGICAL SEX.
SECTION 3. Section 33.0834, Education Code, is amended by
amending Subsections (a) and (b) and adding Subsections (e), (f),
and (g) to read as follows:
(a) Except as provided by Subsection (b), an
[interscholastic] athletic team or sport sponsored or authorized by
a school district, [or] open-enrollment charter school, or any
private school that competes against a public school may not allow a
student to participate [compete] in an [interscholastic] athletic
team or sport [competition] sponsored or authorized by the district
or school that is designated for the biological sex opposite to the
student's biological sex as correctly stated on:
(1) the student's official birth certificate, as
described by Subsection (c); or
(2) if the student's official birth certificate
described by Subdivision (1) is unobtainable, another government
record that accurately states the student's biological sex.
(b) An [interscholastic] athletic team or sport described
by Subsection (a) may allow a female student to participate
[compete] in an [interscholastic] athletic team or sport
[competition] that is designated for male students if a
corresponding [interscholastic] athletic team or sport
[competition] designated for female students is not offered or
available.
(e) A student shall have a private cause of action for
injunctive relief, damages, attorney's fees and costs, and any
other relief available under law if the student is:
(1) deprived of an athletic opportunity or suffers any
direct or indirect harm as a result of a school district, charter
school, or private school knowingly violating this Act; or
(2) subject to retaliation or other adverse action by
a school district, charter school, private school, the University
Interscholastic League, or any athletic association or
organization as a result of reporting a violation of this Act.
(f) Sovereign immunity, governmental immunity, official
immunity, and qualified immunity are waived and abrogated and may
not be asserted as a defense in any action brought under Subsection
(e).
(g) Notwithstanding any other law, the requirements and
provisions of this section prevail over any conflicting or
potentially conflicting statute, and no statute may be construed to
repeal the requirements or provisions of this section in whole or in
part, either expressly or by implication, unless the repealing
statute explicitly states that it is repealing a requirement or
provision of this section.
SECTION 4. Subchapter Z, Chapter 51, Education Code, is
amended by adding Section 51.982 to read as follows:
Sec. 51.982. ATHLETIC PARTICIPATION BASED ON BIOLOGICAL
SEX. (a) Except as provided by Subsection (b), an athletic team or
sport sponsored or authorized by a public institution of higher
education, public junior college, or any private institution or
private junior college that competes against a public institution
or public junior college may not allow a student to participate in
an athletic team or sport sponsored or authorized by the
institution of higher education or junior college that is
designated for the biological sex opposite to the student's
biological sex as correctly stated on:
(1) the student's official birth certificate, as
described by Subsection (c); or
(2) if the student's official birth certificate
described by Subdivision (1) is unobtainable, another government
record that accurately states the student's biological sex.
(b) An athletic team or sport described by Subsection (a)
may allow a female student to participate in an athletic team or
sport that is designated for male students if a corresponding
athletic team or sport designated for female students is not
offered or available.
(c) For purposes of this section, a statement of a student's
biological sex on the student's official birth certificate is
considered to have correctly stated the student's biological sex
only if the statement was:
(1) entered at or near the time of the student's birth;
or
(2) modified to correct any type of scrivener or
clerical error in the student's biological sex.
(d) A student shall have a private cause of action for
injunctive relief, damages, attorney's fees and costs, and any
other relief available under law if the student is:
(1) deprived of an athletic opportunity or suffers any
direct or indirect harm as a result of an institution of higher
education or junior college knowingly violating this Act; or
(2) subject to retaliation or other adverse action by
an institution of higher education, junior college, or any athletic
association or organization as a result of reporting a violation of
this Act.
(e) Sovereign immunity, governmental immunity, official
immunity, and qualified immunity are waived and abrogated and may
not be asserted as a defense in any action brought under Subsection
(d).
(f) Notwithstanding any other law, the requirements and
provisions of this section prevail over any conflicting or
potentially conflicting statute, and no statute may be construed to
repeal the requirements or provisions of this section in whole or in
part, either expressly or by implication, unless the repealing
statute explicitly states that it is repealing a requirement or
provision of this section.
SECTION 5. Chapter 30, Civil Practice and Remedies Code, is
amended by adding Section 30.023 to read as follows:
Sec. 30.023. AWARD OF ATTORNEY'S FEES IN ACTIONS
CHALLENGING CERTAIN EDUCATION LAWS. (a) Notwithstanding any other
law, any person, including an entity, attorney, or law firm, who
seeks declaratory or injunctive relief to prevent this state, a
political subdivision, any governmental entity or public official
in this state, or any person in this state from enforcing any
statute, ordinance, rule, regulation, or any other type of law that
regulates athletic participation based on biological sex in any
state or federal court, or that represents any litigant seeking
such relief in any state or federal court, is jointly and severally
liable to pay the costs and reasonable attorney's fees of the
prevailing party, including the costs and reasonable attorney's
fees that the prevailing party incurs in its efforts to recover
costs and fees.
(b) For purposes of this section, a party is considered a
prevailing party if a state or federal court:
(1) dismisses any claim or cause of action brought
against the party that seeks the declaratory or injunctive relief
described by Subsection (a), regardless of the reason for the
dismissal; or
(2) enters judgment in the party's favor on any such
claim or cause of action.
(c) A prevailing party may recover costs and attorney's fees
under this section only to the extent that those costs and
attorney's fees were incurred while defending claims or causes of
action on which the party prevailed.
(d) Regardless of whether a prevailing party sought to
recover costs or attorney's fees in the underlying action, a
prevailing party under this section may bring a civil action to
recover costs and attorney's fees against a person, including an
entity, attorney, or law firm, that sought declaratory or
injunctive relief described by Subsection (a) not later than the
third anniversary of the date on which, as applicable:
(1) the dismissal or judgment described by Subsection
(b) becomes final on the conclusion of appellate review; or
(2) the time for seeking appellate review expires.
(e) It is not a defense to an action brought under
Subsection (d) that:
(1) a prevailing party under this section failed to
seek recovery of costs or attorney's fees in the underlying action;
(2) the court in the underlying action declined to
recognize or enforce the requirements of this section; or
(3) the court in the underlying action held that any
provisions of this section are invalid, unconstitutional, or
preempted by federal law, notwithstanding the doctrines of issue or
claim preclusion.
(f) Notwithstanding any other law, including Chapter 15,
Civil Practice and Remedies Code, a civil action brought under
Subsection (d) may be brought in:
(1) the county in which all or a substantial part of
the events or omissions giving rise to the claim occurred;
(2) the county of residence for any one of the natural
person defendants at the time the cause of action accrued;
(3) the county of the principal office in this state of
any one of the defendants that is not a natural person; or
(4) the county of residence for the claimant if the
claimant is a natural person residing in this state.
(g) If a civil action is brought under Subsection (d) in any
one of the venues described by Subsection (f), then the action may
not be transferred to a different venue without the written consent
of all parties.
(h) Any contractual choice-of-forum provision that purports
to require a civil action under Subsection (d) to be litigated in
another forum shall be void as against public policy and may not be
enforced in any state or federal court.
SECTION 6. SEVERABILITY. (a) Mindful of Leavitt v. Jane
L., 518 U.S. 137 (1996), in which in the context of determining the
severability of a state statute the United States Supreme Court
held that an explicit statement of legislative intent is
controlling, it is the intent of the legislature that every
provision, section, subsection, sentence, clause, phrase, or word
in this Act, and every application of the provisions in this Act to
every person, group of persons, or circumstances, are severable
from each other.
(b) If any application of any provision in this Act to any
person, group of persons, or circumstances is found by a court to be
invalid, preempted, or unconstitutional, for any reason
whatsoever, then the remaining applications of that provision to
all other persons and circumstances shall be severed and preserved
and shall remain in effect. All constitutionally valid
applications of the provisions in this Act shall be severed from any
applications that a court finds to be invalid, preempted, or
unconstitutional, because it is the legislature's intent and
priority that every single valid application of every statutory
provision be allowed to stand alone.
(c) The legislature further declares that it would have
enacted this Act, and each provision, section, subsection,
sentence, clause, phrase, or word and all constitutional
applications of the provisions of this Act, irrespective of the
fact that any provision, section, subsection, sentence, clause,
phrase, or word or applications of this Act were to be declared
invalid, preempted, or unconstitutional.
(d) If any provision of this Act is found by any court to be
unconstitutionally vague, then the applications of that provision
that do not present constitutional vagueness problems shall be
severed and remain in force, consistent with the severability
requirements of Subsections (a), (b), and (c) of this section.
(e) No court may decline to enforce the severability
requirements of Subsections (a), (b), (c), and (d) of this section
on the ground that severance would "rewrite" the statute or involve
the court in legislative or lawmaking activity. A court that
declines to enforce or enjoins a state official from enforcing a
statutory provision is never rewriting a statute or engaging in
legislative or lawmaking activity, as the statute continues to
contain the same words as before the court's decision. A judicial
injunction or declaration of unconstitutionality:
(1) is nothing more than an edict prohibiting
enforcement of the disputed statute against the named parties to
that lawsuit, which may subsequently be vacated by a later court if
that court has a different understanding of the requirements of the
Texas Constitution or United States Constitution;
(2) is not a formal amendment of the language in a
statute; and
(3) no more rewrites a statute than a decision by the
executive not to enforce a duly enacted statute in a limited and
defined set of circumstances.
(f) If any state or federal court disregards any of the
severability requirements in Subsection (a), (b), (c), (d), or (e),
of this section and declares or finds any provision of this Act
facially invalid, preempted, or unconstitutional, when there are
discrete applications of that provision that can be enforced
against a person, group of persons, or circumstances without
violating federal law or the federal or state constitutions, then
that provision shall be interpreted, as a matter of state law, as if
the legislature had enacted a provision limited to the persons,
group of persons, or circumstances for which the provision's
application will not violate federal law or the federal or state
constitutions, and every court shall adopt this saving construction
of that provision until the court ruling that pronounced the
provision facially invalid, preempted, or unconstitutional is
vacated or overruled.
SECTION 7. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2023.