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A BILL to amend the Code of Virginia by adding sections numbered
22.1-271.7:1
and
23.1-408.2
, relating to public elementary and secondary schools and institutions of higher education; student participation in women's sports; civil cause of action.
Be it enacted by the General Assembly of Virginia:
1. That the Code of Virginia is amended by adding sections numbered
22.1-271.7:1
and
23.1-408.2
as follows:
§
22.1-271
.
7:1
. Interscholastic, intramural, and club athletic teams and sports; designation of teams; student participation.
A. Each interscholastic, intramural, or club athletic team or sport sponsored by a public school
or any other school that is a member of the Virginia High School League
shall be expressly designated as one of the following based on
the
biological sex
of the students who participate on the team or in the sport
:
1. For "males," "men," or "boys";
2. For "females," "women," or "girls"; or
3. For "coed" or "mixed" if participation on such team or in such sport is open to both (i) males, men, or boys and (ii) females, women, or girls.
B. Each interscholastic, intramural, or club athletic team or sport sponsored by a
public school
or any
other
school that is a member of the Virginia High School League
that is expressly designated for "females,"
"women," or "girls" pursuant to subsection A shall not be
open to any student of the male sex.
C.
T
he biological sex of any student seeking to participate on such an expressly designated team shall be
affirmed by
a signed physician's statement
.
D
.
No government entity, licensing or accrediting organization, or athletic
association or organization shall entertain a complaint, open an investigation,
or take any other adverse action against a school
for explicitly designating or maintaining separate interscholastic, intramural,
or club athletic teams or sports for "females," "women," or
"girls" pursuant to subsections A, B,
and
C
. Any school that
suffers any direct or
in
direct harm as a result of a violation of this
sub
section
shall have a private cause of action for injunctive relief, damages, and any
other relief available under law against such government entity, licensing or
accrediting organization, or athletic association or organization.
E
. Any student who (i)
is
deprived of an athletic opportunity or suffers any
direct or indirect harm as a result of a school knowingly violating this
section or (ii)
is
subject to retaliation or other adverse action by a school,
athletic association, or organization as a result of reporting a violation of
this section to an employee or
representative of such school, athletic association, or organization, or to any
state or federal agency with oversight of
such
school in the Commonwealth, shall
have a private cause of action for injunctive relief, damages, and any other
relief available under law against such school, athletic association, or
organization.
F. The provisions of subsection
s D and E
shall constitute a waiver of sovereign immunity.
G
. All civil actions brought pursuant to subsection
D
or
E
shall
be initiated within two years after the harm occurred.
Any person who prevails on a claim brought
pursuant to this section shall be entitled to monetary damages, including for any psychological, emotional, or physical harm suffered, reasonable attorney fees and costs, and any other appropriate relief.
§
23.1-408.2
. Intercollegiate, intramural, and club athletic teams and sports; designation of teams; student participation.
A.
Each intercollegiate, intramural, and club athletic team or sport that is
sponsored by a public institution of higher education
or any institution of higher education that is a member of the National Collegiate Athletic Association (NCAA), National Association of
Intercollegiate Athletics (NAIA), or National Junior College Athletic Association (NJCAA)
shall be expressly
designated as one of the following based on
the
biological sex
of the students who participate on the team or in the sport
:
1. For "males," "men," or
"boys";
2. For "females," "women," or
"girls"; or
3. For "coed" or "mixed," if participation
on such team or sport is open to both (i) males,
men, or boys and (ii) females, women, or girls.
B.
Each intercollegiate, intramural, or club athletic team or sport that is
sponsored by any such institution of higher education and that is expressly
designated for "females," "women," or "girls"
pursuant to subsection A shall not be open to any student
of the male sex
.
C.
T
he biological sex of any such student seeking to participate on such an expressly designated team
shall be affirmed by
a signed physician's statement
.
D
.
No government entity, licensing or accrediting organization, or athletic
association or organization shall entertain a complaint, open an investigation,
or take any other adverse action against an institution of higher education for explicitly designating or
maintaining separate intercollegiate, intramural, or club athletic teams or
sports for "females,
"
"women," or "girls" pursuant to
subsections A, B,
and
C
. Any institution
of higher education that suffers any direct or indirect
harm as a result of a violation of this
sub
section shall have a private cause of
action for injunctive relief, damages, and any other relief available under law
against such government entity, licensing or accrediting organization, or
athletic association or organization.
E
.
Any student who (i)
is
deprived of an athletic opportunity or suffers any
direct or indirect harm as a result of a knowing violation of this section by any such institution
of higher education or (ii)
is
subject to retaliation or other adverse action by
an institution of higher education, athletic association, or organization as a result of reporting a violation of this section to an
employee or representative of such institution, athletic association, or
organization, or to any state or federal agency with oversight of such
institution in the Commonwealth, shall have a private cause of action for injunctive relief, damages, and any
other relief available under law against such institution, athletic
association, or organization.
F. The provisions of subsection
s D and E
shall constitute a waiver of sovereign immunity.
G
.
All civil actions brought pursuant to
subsection
D
or
E
shall
be initiated
within two years after the harm occurred.
Any person who prevails on a claim brought pursuant to this section shall be entitled to monetary damages, including for any psychological, emotional, and physical harm suffered, reasonable attorney fees and costs, and any other appropriate relief.
2. That the General Assembly finds that (i) 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 artificial constraints on an individual's opportunity" (
United States v. Virginia
518 U.S. 515, 533 (1996)), and these "inherent differences
"
range from chromosomal and hormonal differences to physiological differences, including men generally having "denser, stronger bones, tendons, and ligaments," "larger hearts, greater lung volume per body mass, a higher red blood cell count, and higher hemoglobin" (Neel Burton,
"
The Battle of the Sexes,
"
Psychology Today
(July 2, 2012)
)
, higher natural levels of testosterone, which affects traits such as body fat content, the storage and use of carbohydrates, and the development of type two muscle fibers, all of which result in men being able to generate higher speed and more power during physical activity (Doriane Lambelet Coleman,
"
Sex in Sport,
"
Law and Contemporary Problems
63, 74 (2017)); (ii) these biological differences between men and women "explain the male and female secondary sex characteristics which develop during puberty and have lifelong 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 that while classifications based on sex are generally disfavored, the 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)); (iii) one place in which sex classifications allow for the "full development of the talent and capacities of our Nation's people" is in the context of sports and athletics (
Id.
); (iv) courts have recognized that the inherent physiological differences between males and females result in different athletic capabilities
, as seen in
the
Kleczek v. Rhode Island Interscholastic League, Inc.
, 612 A.2d 734, 738 (R.I. 1992) finding that
"
because of innate physiological differences, boys and girls are not similarly situated as they enter athletic competition
" and in
the
Petrie v. Illinois High Sch. Ass'n
, 394 N.E. 2d 855, 861 (Ill. Ct. App. 1979) finding 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; (v) a recent study of female and male Olympic performances dating back to 1983 found that, although athletes of both sexes improved over the time span, the "gender gap" between female and male performances remains stable and "[t]h[is] 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,
"
Journal of Sports
Science
& Medicine
214, 291 (2010)); (vi) as Duke Law professor and All-American track athlete Doriane Coleman, tennis champion Martina Navratilova, and Olympic track gold medalist Sanya Richards-Ross wrote, "[t]he 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 Coleman, Martina Navratilova, et al.,
"
Pass the Equality Act, But Don't Abandon Title IX,
"
Washington Post
(Apr. 29, 2019)); and (vii) the benefits that natural testosterone provides to male athletes are not diminished through the use of puberty blockers and cross-sex hormones. A recent study on the impact of such treatments found that even "after 12 months of hormonal therapy" a man who identifies as a woman and is taking cross-sex hormones "had an absolute advantage" over female athletes and "will still likely have performance benefits" over women (Tommy Lundberg, et al
.
,
"
Muscle strength, size and composition following months of gender-affirming treatment of transgender individuals: retained advantage for the transwomen,
" Karolinska Institute
(Sept. 26, 2019)), and the General Assembly finds that having sex-specific teams provides 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; and that, therefore, maintaining separate sex-specific teams is imperative to promoting sex equality and necessary to ensuring female athletes equal protection under the law and equal treatment and opportunity in public school and higher education athletics.