MISSISSIPPI LEGISLATURE

2021 Regular Session

To: Universities and Colleges; Accountability, Efficiency, Transparency

By: Senator(s) Hill

Senate Bill 2536

AN ACT TO CREATE THE "MISSISSIPPI FAIRNESS ACT"; TO REQUIRE ANY PUBLIC SCHOOL, PUBLIC INSTITUTION OF HIGHER LEARNING OR INSTITUTION OF HIGHER LEARNING THAT IS A MEMBER OF THE NCAA, NAIA OR NJCCA TO DESIGNATE ITS ATHLETIC TEAMS OR SPORTS ACCORDING TO BIOLOGICAL SEX; TO PROVIDE PROTECTION FOR ANY SCHOOL OR INSTITUTION OF HIGHER EDUCATION THAT MAINTAINS SEPARATE ATHLETIC TEAMS OR SPORT FOR STUDENTS OF THE FEMALE SEX; TO CREATE PRIVATE CAUSES OF ACTION; AND FOR RELATED PURPOSES.

     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

     SECTION 1.  Title.  This act shall be known and may be cited as the "Mississippi Fairness Act."

     SECTION 2.  Legislative findings and purpose.  (1)  The Legislature finds that:

          (a)  There are "'[i]nherent 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 constraints on an individual's opportunity."  United States v. Virginia, 518 U.S. 515, 533 (1996).

          (b)  These "inherent differences" range from chromosomal and hormonal differences to physiological differences.

          (c)  Men generally have denser, strong bones, tendons, and ligaments and larger hearts, greater lung volume per body mass, a higher red blood cell count, and higher hemoglobin.

          (d)  Men also have higher natural levels 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.

          (e)  The biological differences between females and males, especially as it relates to natural levels of testosterone, 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.

          (f)  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) (internal citations and quotation marks omitted).

          (g)  One place where 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.

          (h)  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."); 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").

          (i)  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 female and male performances remained stable.  These suggest that women's performances at the high level will never match those of men.

          (j)  As Duke Law Professor and All-American Track Athlete Doriane 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.

          (k)  The benefits that natural testosterone provides to male athletes is 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 twelve (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.

          (l)  Having separate sex-specific teams furthers efforts to promote sex equality.  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.

     SECTION 3.  Designation of athletic teams.  (1)  Interscholastic or intramural athletic teams or sports that are sponsored by a public primary or secondary school or any school that is a member of the Mississippi High School Activities Association or public institution of higher education or any higher education institution that is a member of the NCAA, NAIA or NJCCA shall 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" shall not be open to students of the male sex.

     (3)  If disputed, a student may establish his or her sex by presenting a signed physician's statement which shall indicate the student's sex based solely upon:

          (a)  The student's internal and external reproductive anatomy;

          (b)  The student's normal endogenously produced levels of testosterone; and

          (c)  An analysis of the student's genetic makeup.

     SECTION 4.  Protection for educational institutions.  A government entity, any licensing or accrediting organization, or any athletic association or organization shall not entertain a complaint, open an investigation, or take any other adverse action against a primary or secondary school or institution of higher education for maintaining separate interscholastic or intramural athletic teams or sports for students of the female sex.

     SECTION 5.  Cause of action.  (1)  Any student who is deprived of an athletic opportunity or suffers any direct or indirect harm as a result of a violation of this act shall have a private cause of action for injunctive relief, damages and any other relief available under law against the primary or secondary school or institution of higher education.

     (2)  Any student who is subject to retaliation or other adverse action by a primary or secondary school, institution of higher education, or athletic association or organization as a result of reporting a violation of this act to an employee or representative of the school, institution or athletic association or organization, or to any state or federal agency with oversight of primary or secondary schools or institutions of higher education in the state shall have a private cause of action for injunctive relief, damages and any other relief available under law against the school, institution or athletic association or organization.

     (3)  Any student whose bodily privacy is violated, including encountering a person of the opposite sex in a facility traditionally designated for the exclusive use of members of one sex, by any action, policy or practice of a primary or secondary school or institution of higher education shall have a private cause of action for injunctive relief, damages and any other relief available under law against the school or institution.

     (4)  Any primary or secondary school or institution of higher education that suffers any direct or indirect harm as a result of a violation of this act shall have a private 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.

     (5)  All civil actions must be initiated within two (2) years after the harm occurred.  Persons or organizations who prevail on a claim brought pursuant to this section shall be entitled to monetary damages, including for any psychological, emotional and physical harm suffered, reasonable attorneys' fees and costs, and any other appropriate relief.  The causes of action pursuant to this section shall be in addition to any other civil or criminal proceeding authorized by the laws of this state or by federal law.

     SECTION 6.  Severability.  Any provision of this act held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, shall be construed so as to give it the maximum effect permitted by law, unless such holding shall be one of utter invalidity or unenforceability, in which event such provision shall be deemed severable herefrom and shall not affect the remainder hereof or the application of such provision to other persons not similarly situated or to other, dissimilar circumstances.

     SECTION 7.  This act shall take effect and be in force from and after July 1, 2021.