State lawmakers fell two votes short of advancing a proposal Friday that would define K-12 school bathrooms and sporting teams as male or female based on students’ sex at birth.
Legislative Bill 575, the Sports and Spaces Act introduced by State Sen. Kathleen Kauth of Omaha, fell 31-15, after two conservative lawmakers who originally signed on to the bill when it was introduced last year did not vote for the measure: State Sens. Tom Brandt of Plymouth and Merv Riepe of Ralston. That was two votes short of the 33 votes needed to end debate on the bill.
Riepe, who had said his vote would be a “mystery” until the very end, condemned Friday’s last-minute effort on a bill that was advanced to the floor just one day prior, while Brandt questioned how the bill’s policies would be enforced and paid for.
Next steps for the legislation
With Friday’s failed vote, the bill is effectively dead for the year. Speaker John Arch of La Vista said there is not enough time to try to combine bills, which could have been a next step to give LB 575 another chance on a different bill next week.
Friday’s vote wasn’t a “terrible surprise,” Kauth said, but she thought Brandt and Riepe would be in support — an internal vote count indicated 32 senators in support with one “leaning.”
Kauth said the measure will return in 2025 and said she is willing to address other senators’ concerns. The proposal could include restrictions on collegiate athletics, as she indicated last August might be next.
In the “audaciousness of going big,” Kauth added, she’ll look at whether more issues should be addressed, such as Gov. Jim Pillen’s “Women’s Bill of Rights.”
“We’ll try it again next year,” Kauth told reporters after the vote.
‘Heavy hand of government’
Riepe was among the first to signal cracks in the legislation last year when he went through the procedural step of removing his name from the bill. At the time, he revealed that he had alerted Kauth to his discontent with the State Board of Education for not stepping up on this issue.
The Ralston senator said he met with multiple transgender students and their families and was impressed with the love and concern he saw. Riepe remarked that they were seeking accommodation, not attention, for “the life they have been given in this very complicated world.”
“Thank God for His creation and the strength of families and friends who love these transgender students and walk the walk with them every day through every challenge without the heavy hand of government,” Riepe said Friday.
Kauth said her bill was about protecting women’s sports and protecting the dignity and privacy of all school-aged children in the most intimate places. Without her bill, she said, “women will lose” and they’ll be robbed of scholarships in addition to trophies. They’ll also miss out, she said, on lessons learned from sports that could prepare them for their careers later in life.
“Women and girls are going to start refusing to participate in sports knowing that the deck is stacked against them,” Kauth said.
State Sen. Dave Murman of Glenvil, Education Committee chair, said the Legislature needed to realize there are physical differences between boys and girls, such as in sports records maintained by the Nebraska School Activities Association.
Policy already in place
The Nebraska School Activities Association already has a Gender Participation Policy, which has been in place since January 2016. Less than 10 students have applied and been approved to play on the sporting team of their choice.
Riepe passed out the NSAA policy to all lawmakers Thursday night.
“The NSAA has steadfastly provided oversight and guidance,” Riepe said, noting it allows superintendents to work one-on-one with families “with fairness, safety and respect for all.”
State Sen. Tom Brandt of Plymouth said he hopes Friday is the last time he needs to speak on LB 575, calling Nebraska a “leader in the nation” for its NSAA policy, which is an “excellent document” already working for the state.
State Sen. Lynne Walz of Fremont suggested lawmakers put those regulations into law.
Kauth and State Sen. Teresa Ibach of Sumner expressed concern about the NSAA policy because it allows member schools to adopt their own policies. Two Nebraska districts — in Kearney and Norfolk — subsequently adopted policies similar to LB 575 last year.
Kauth said the policy also advocates for children to use puberty blockers and cross-sex hormones, which she moved to fully ban last year. An amended bill, LB 574, restricted how youths could access those medications.
Riepe also argued the State Board of Education delegated its authority to the Legislature for fear of legal consequences over trying to establish such a policy, choosing “to sidestep its leadership responsibility and place the financial liability on the state Legislature and state taxpayers.”
“Certainly not a profile in courage,” he said. “We are seeking to create a problem that does not exist.”
Kauth said the state board isn’t an option, pointing to a previous conservative effort on library books that fell short last month. She said in 2023 that the board didn’t “have the teeth for it.”
Legislature running out of time
Speaker Arch repeated Friday morning that the Legislature is running out of time, with four days left after Friday for lawmaking.
Riepe blasted lawmakers for spending time on LB 575 and said local control mattered to school boards only until an issue became “tough,” such as restricting library books or sporting teams and bathrooms. Brandt and Riepe opposed that library measure last month.
State Sen. Wendy DeBoer of Omaha said there was probably a local board that could be spending time on these issues instead of state lawmakers who should be spending their time on property taxes and a revenue package for the whole state.
“Can’t we spend our time and our intellectual labor, which we need in order to get this right, about our tax packages?” DeBoer said.
State Sen. Carol Blood of Bellevue, who spent much of Friday questioning Kauth on the legislative history of her bill, said women don’t need the Legislature’s protections.
“We aren’t waiting for some man on a white horse or prince on a horse to come and rescue us,” Blood said, adding that women are winning, not losing.
A proactive law
State Sen. Brian Hardin of Gering said that to his knowledge, the problems identified in LB 575 aren’t a problem in his western Nebraska district, “but you don’t close the gate after the cattle are out.”
“You don’t hit the brakes until after you rear-end the car in front of you and you don’t put on sunscreen after you’ve been burned,” he said.
State Sen. Barry DeKay of Niobrara, who has officiated K-12 sports for 40 years, said he doesn’t foresee the State Board of Education tackling the issue and said inaction will end up to a “very weird gray area” where different schools have different policies on sports and bathrooms.
He said this could create “quite a mess” and lead to a “massive state controversy.”
DeKay said he has never refereed a game that included a trans player, to his knowledge.
“I’m not concerned about the last 40 years,” he told the Examiner after the debate. “I’m concerned about what might happen to my grandkids in the next 20 years.”
