LINCOLN — All Nebraska student-athletes will soon be legally required to play on interscholastic sports teams based on the student’s sex at birth under a legislative bill passed Wednesday at the governor’s urging.

Legislative Bill 89, the “Stand With Women Act” from State Sen. Kathleen Kauth of the Millard area, passed 33-16 after a one-hour debate. Speaker John Arch of La Vista limited the length of time for the third round of debate by labeling the bill as “controversial and emotionally charged.”

Nebraska will join more than two dozen states with similar laws already on the books. While LB 89’s passage is good, Kauth said, it’s not the finish line.

“We’re kind of in a marathon,” Kauth told the Nebraska Examiner. “We’re at mile three or four.”

Gov. Jim Pillen after the vote confirmed he would sign the bill into law. He said the “legislative win” would lead to “many more victories for Nebraska’s female athletes, as we ensure a level and fair playing field for all girls who compete.”

State Sen. Megan Hunt of Omaha, who again led opposition to LB 89, said the bill was about “exploiting women’s sports as a proxy to attack transgender people,” particularly children, and a push for “authoritarianism.”

“It signals that we are willing to prioritize political theater over actual governance, that we are willing to criminalize difference, that we will twist Title IX, which was meant to expand opportunity for everybody, into a tool of exclusion,” Hunt said. “This bill is not about sports, and it’s not about protecting women.”

Sex definition, sports requirements

Under the bill, “sex” would be defined as whether someone “naturally has, had, will or would have, but for a congenital anomaly or intentional or unintentional disruption, the reproductive system that at some point produces, transports and utilizes” either eggs (female, woman or girl) or sperm (male, man or boy) for fertilization.

Public school competitive sports would be restricted to students’ sex at birth, for males or females only, unless the sport is coed/mixed. There would be an exception for sports with no female equivalent team, such as football.

Private schools would need to adopt a similar policy if student-athletes compete against public institutions.

A student-athlete would need to verify sex at birth with a doctor’s note before participating in single-sex sports. Kauth said she envisions such verification coming during a student’s physical exam. 

State Sen. John Cavanaugh of Omaha said seventh grade physicians don’t include a “genital inspection” — which Kauth repeats her bill does not require — and that the bill “does not specify that the doctor has to adhere to the definition of sex that you put into this.”

“It just says that they have to answer that question,” Cavanaugh said. “In your rush to get this done, to get something to check a box, you haven’t even done it well.”

All 245 public school districts in the state, as well as community colleges, state colleges and the University of Nebraska, would need to adopt a policy complying with the new law. Enforcement of the new law would be left up to each individual school district.

Current status quo

The bill mirrors the current status quo for Nebraska schools after the Nebraska School Activities Association ended a Gender Participation Policy that had been in place since 2016. Fewer than 10 students had applied and been approved under the policy, which offered a narrow path for transgender students to participate in sports matching their gender identity. The National Collegiate Athletic Association made a similar change earlier this year.

Both athletic associations changed their policies following executive orders from President Donald Trump to administratively define sex as binary. Pillen issued a similar executive order in 2023 that continues to apply to most state agencies.

Kauth’s LB 89 would have originally applied to school and college bathrooms and locker rooms, but at the request of State Sen. Merv Riepe of Ralston, a decisive vote for overcoming a filibuster, the bill was limited to sports.

“Sometimes making incremental steps is the best way to go,” Kauth said May 14, when the Riepe amendment moved forward to keep LB 89 moving.

The bill required at least 33 votes to move forward in the face of opposition, meaning Kauth needed Riepe or one Democratic lawmaker in his place. All Democratic lawmakers opposed the bill, as did Hunt, a nonpartisan progressive.

‘This isn’t about exclusion’

State Sen. Loren Lippincott of Central City, the only LB 89 supporter to speak during the limited debate, said the law “protects fairness, safety and opportunity for our female athletes.”

“This isn’t about exclusion,” he said. “It’s about ensuring our daughters, sisters and friends have a level playing field to compete, succeed and shine.”

Kauth said she was “a bit disappointed” about not being able to address school bathrooms or locker rooms this year but that she would bring those issues back in 2026. She said she and Riepe have discussed what comes next and that he has mentioned he wants to watch and see what happens in the next year, which would help determine Kauth’s next steps.

Riepe said May 14 that he would not support bathroom restrictions because he was against turning the Legislature into a “vehicle for fear, overreach and culture war crusades.”

“I did not run for office to become part of the ‘Nebraska State Potty Patrol,’” Riepe said during the most recent debate.

Pillen, speaking with the Nebraska Examiner in April, said he would accept the pared-back LB 89 “if that’s where it ends up.” He said if a boy goes into a woman’s restroom, “the rest of the boys will take care of him.”

Kauth said LB 89 would prevent self-policing and that a “high-trust society” would give faith that someone under her law is on the “right” sports team, or as in her larger bill, the “right” bathroom.

‘Political football’

Some opponents, such as Hunt and Cavanaugh, have said Kauth’s bill would lead to questions of whether anyone is allowed in the “right” bathroom or locker room, regardless of their sex or gender identity, based on their appearance

State Sen. John Fredrickson of Omaha said that someday soon the “fog” against transgender Nebraskans would lift and supporters of Kauth’s bill would move on to the next “craze.” 

However, he said, lawmakers would be left with the “rubble” and how they voted.

“It’s a political football,” he said. “It’s using a community as a pawn, and it’s doing so at a time when frankly the house is on fire and it’s essentially saying, ‘Don’t look over here, let’s talk about this.’ And real people, real Nebraskans, are the collateral damage of that type of activity.”

Fredrickson and other senators who opposed LB 89 joined statewide LGBTQ advocates, such as OutNebraska, in the Capitol Rotunda. They gathered after the vote to urge about 50 opponents in attendance not to give up and keep finding community.

“We’re allowed to grieve, we’re allowed to mourn, but our community has always existed,” said Fredrickson, the first openly gay man elected to the Nebraska Legislature in 2022. “We always will exist.”

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