Nebraska attorney general defends bill protecting women’s sports

Attorney General Mike Hilgers issued his opinion on Tuesday. The bill aims to protect children on school sports teams and in private spaces, including school bathrooms and locker rooms. The Sports and Spaces Act would require children to play on sports teams and use locker rooms based on their biological sex rather than a self-declared gender.

Does the bill conflict with Title IX? Some critics allege the proposed Nebraska legislation violates Title IX protections against sex-based discrimination. However, all of the references to sex in Title IX involve biological sex, not sexual identity, making the Nebraska bill legally compliant, according to Hilgers. Additionally, Hilgers noted that courts regularly prioritize student privacy and equal opportunity in athletics, giving the bill more credence. Nearly half the states have legislation requiring students to play on sports teams according to their biological sex. However, in 2021, the Biden administration proposed an expansion of the interpretation of sex discrimination in Title IX to include sexual orientation and gender identity, meaning the bill could be interpreted as discriminatory.

How can the Biden administration just change the interpretation of Title IX? The Department of Education changed its interpretation following the U.S. Supreme Court case Bostock v. Clayton County. The nine justices ruled that discrimination against one’s sexual orientation or gender identity is impossible without also discriminating based on sex. The ruling gave the Biden administration a precedent to propose the change in interpretation of Title IX.

Hilgers' opinion is not legally binding but may be useful in moving the measure through the state legislature. Nebraska state Sen. Kathleen Kauth filed the Sports and Spaces Act last year, which was carried into the 2024 session. Kauth described the bill as common-sense legislation that protected girls’ access to sporting opportunities and privacy in the restroom, according to The Hill. She added that many Nebraska residents supported the measure.

Dig deeper: Read Lauren Canterberry’s report on female athletes suing the NCAA last month for forcing them to compete with men.