2021 Montana Legislature
Additional Bill Links PDF Version
_____________ bill NO. _____________
By Request of the ****
A BILL FOR AN ACT
ENTITLED: "AN ACT creating the "Save
Women's Sports Act"; requiring public school athletic teams to be
designated based on biological sex; providing certain protections for
educational institutions; providing a cause of action for certain violations of
the act; and PROVIDING AN EFFECTIVE DATE."
WHEREAS, the Legislature finds that there are
"inherent differences between men and women", and that these
differences "remain cause for celebration but not for denigration of the
members of either sex or for artificial contracts on an individual's
opportunity", United States v. Virginia, 518 U.S. 515, 533 (1996); and
WHEREAS, these "inherent differences"
range from chromosomal and hormonal differences to physiological differences;
and
WHEREAS, men generally have "denser,
stronger bones, tendons, and ligaments" and "larger hearts, greater
lung volume per body mass, a higher red blood cell count, and higher
haemoglobin", Neel Burton, The Battle of the Sexes, Psychology Today (July
2, 2012); and
WHEREAS, men have a higher natural level of
testosterone, which affects traits such as hemoglobin levels, body fat content,
the storage and use of carbohydrates, and the development of type 2 muscle
fibers, all of which result in men being able to generate higher speed and
power during physical activity, Doriane Lambelet Coleman, Sex in Sport, 80 Law
and Contemporary Problems 63, 74 (2017) (quoting Gina Kolata, Men, Women, and
Speed. 2 Words: Got Testosterone?, N.Y. Times (Aug. 21, 2008)); and
WHEREAS, the biological differences between males
and females, especially as they relate to natural levels of testosterone,
"explain the male and female secondary sex characteristics which develop
during puberty and have life-long effects, including those most important for success
in sport: categorically different strength, speed, and endurance", Doriane
Lambelet Coleman and Wickliffe Shreve, "Comparing Athletic Performances:
The Best Elite Women to Boys and Men," Duke Law Center for Sports Law and
Policy; and
WHEREAS, while classifications based on sex are
generally disfavored, the United States Supreme Court has recognized that
"sex classifications may be used to compensate women for particular
economic disabilities [they have] suffered, to promote equal employment opportunity,
[and] to advance full development of the talent and capacities of our Nation's
people", United States v. Virginia, 518 U.S. 515, 533 (1996); and
WHEREAS, one place in which sex classification
allows for the "full development of the talent and capacities of our
Nation's people" is in the context of sports and athletics; and
WHEREAS, courts have recognized that the
inherent, physiological differences between males and females result in
different athletic capabilities, see, e.g., Kleczek v. Rhode Island Interscholastic
League, Inc., 612 A.2d 734, 738 (R.I. 1992) ("Because of innate
physiological differences, boys and girls are not similarly situated as they
enter athletic competition.") and Petrie v. Ill. High Sch. Ass'n, 394
N.E.2d 855, 861 (Ill. App. Ct. 1979) (noting that high school boys generally
possess physiological advantages over their girl counterparts and that those
advantages give them an unfair lead over girls in some sports like high school
track); and
WHEREAS, a recent study of female and male
Olympic performances since 1983 found that, although athletes from both sexes
improved over the time span, the gender gap between male and female
performances remained stable, which "suggest[s] that women's performances
at the high level will never match those of men", Valerie Thibault, et
al., Women and men in sport performance: The gender gap has not evolved since
1983, 9 Journal of Sports Science and Medicine 214, 219 (2010); and
WHEREAS, as Duke Law professor and All-American
track athlete Doriane Lambelet Coleman, tennis champion Martina Navratilova,
and Olympic track gold medalist Sanya Richards-Ross recently wrote, "The
evidence is unequivocal that starting in puberty, in every sport except
sailing, shooting, and riding, there will always be significant numbers of boys
and men who would beat the best girls and women in head-to-head competition.
Claims to the contrary are simply a denial of science", Doriane Lambelet Coleman,
et al., Pass the Equality Act, But Don't Abandon Title IX, Washington Post
(Apr. 29, 2019); and
WHEREAS, having separate sex-specific teams
furthers efforts to promote sex equality, and sex-specific teams accomplish
this by providing opportunities for female athletes to demonstrate their skill,
strength, and athletic abilities while also providing them with opportunities
to obtain recognition and accolades, college scholarships, and the numerous
other long-term benefits that flow from success in athletic endeavors.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE
OF MONTANA:
NEW SECTION. Section 1. Short
title. [Sections 1 through 4] may be
cited as the "Save Women's Sports Act".
NEW SECTION. Section 2. Designation
of athletic teams. (1) Interscholastic,
intercollegiate, intramural, or club athletic teams or sports that are sponsored
by a public elementary or high school, a public institution of higher
education, or any school or institution whose students or teams compete against
a public school or institution of higher education must be expressly designated
as one of the following based on biological sex:
(a) males, men, or boys;
(b) females, women, or girls; or
(c) coed or mixed.
(2) Athletic teams or sports designated for females,
women, or girls may not be open to students of the male sex.
NEW SECTION. Section 3. Protection
for educational institutions. A
government entity, a licensing or accrediting organization, or an athletic
association or organization may not entertain a complaint, open an
investigation, or take any other adverse action against a school or institution
of higher education for maintaining separate interscholastic, intercollegiate,
intramural, or club athletic teams or sports for students of the female sex.
NEW SECTION. Section 4. Cause of
action. (1) A student who is deprived of
an athletic opportunity or who suffers any direct or indirect harm as a result
of a violation of [sections 1 through 4] may bring a cause of action for
injunctive relief, damages, and any other relief available under law against
the school or institution of higher education.
(2) A student who is subject to retaliation or other
adverse action by a school, institution of higher education, or athletic
association or organization as a result of reporting a violation of [sections 1
through 4] to an employee or representative of the school, institution, or
athletic association or organization, or to any state or federal agency with
oversight of schools or institutions of higher education in Montana may bring a
cause of action for injunctive relief, damages, and any other relief available
under law against the school, institution, or athletic association or
organization.
(3) A school or institution of higher education that
suffers any direct or indirect harm as a result of a violation of [sections 1
through 4] may bring a cause of action for injunctive relief, damages, and any
other relief available under law against the government entity, licensing or
accrediting organization, or athletic association or organization.
NEW SECTION. Section
5. Codification instruction. [Sections 1
through 4] are intended to be codified as an integral part of Title 20, chapter
7, and the provisions of Title 20, chapter 7, apply to [sections 1 through 4].
NEW SECTION. Section 6. Severability. If a part
of [this act] is invalid, all valid parts that are severable from the invalid
part remain in effect. If a part of [this act] is invalid in one or more of its
applications, the part remains in effect in all valid applications that are
severable from the invalid applications.
NEW SECTION. Section 7. Effective
date. [This act] is effective July 1, 2021.
INTRODUCED
BY _________________________________________________