Good evening, Alaska!

Editor’s note: Sorry about the lack of newsletters over the last few days. I’ve been slammed with a combination of freelance crunch and a particularly bad flare-up of tinnitus that has made writing a particularly torturous endeavor. Anyways!

In this edition: Legislation that’d ban trans athletes from girls’ sports nears a vote in the Senate, where backers say it’ll help ensure girls who train hard and “watch their diet” don’t give up… training hard and dieting; the Alaska Supreme Court rules against UA students in the scholarship case, leaving the issue to the Legislature; meanwhile the Legislature confirms every Dunleavy appointee, including an ivermectin advocate to the Board of Pharmacy; and the Senate gets started with the PFD formula debate before cutting things short.

Legislative day: 107

Something fun: What happened to Juneau’s Taco Bell?

Senate poised to pass anti-trans athlete bill

Update: It sounds like the amendments, debate and a vote on Senate Bill 140 has been pushed back to the start of next week. Important to note that the Senate also has the operating budget on the floor, which is an actually important piece of legislation.

Sen. Shelley Hughes, R-Palmer, tries to explain why her legislation banning trans youth from participating in girls' sports isn't anti-trans during a May 2, 2022 hearing of the Senate Judiciary Committee.

The Republican-controlled Alaska Senate is poised to vote on legislation that would ban transgender girls from participating in women’s athletics, despite its sponsor being unable to name any instance where it’s ever been an issue in Alaska or why it would warrant ignoring the Alaska Constitution's privacy clause. The bill is set for debate and a vote on Thursday.

At a hearing on Monday in the House Judiciary Committee, Senate Bill 140 sponsor Palmer Republican Sen. Shelley Hughes claimed that the legislation—which mirrors a wave of bills capitalizing on conservative outrage aimed at transgender youth—isn’t discriminatory against transgender athletes and merely aimed at protecting young women who train hard and “watch their diet.”

The legislation would require athletes participating in public K-12 sports or competing with public K-12 schools to disclose their sex to schools by providing a copy of their birth certificate. Student athletes would be sorted by the sex on their birth certificate into sports. It would specifically bar any male student or trans female student from participating is cisgender girls' sports, giving them the option to only participate in boys-only sports or co-ed sports regardless of their gender. It wouldn’t place the same limitation on trans male students, who would be allowed to participate in boys' sports.

“Establishing this policy now as we currently don't have any student athletes, to my knowledge, that are involved,” Hughes said. “It’s good, I think, for our young girls, our young women to know that if they work hard, train and do all the things that young girls do whether it’s get out there and work out, watch their diet, etc., that it will all not be for naught.”

She claimed that it’s not discriminatory because trans girls would still have a separate, equal option to participate in sports.

Sen. Jesse Kiehl, D-Juneau, was the lone member of the Senate Judiciary Committee to vote against moving the bill. He said it raised a slew of constitutional issues when it comes to the Alaska Constitution's privacy clause and had the impact of drawing unnecessary attention and ire to transgender youth.

“What we have is a bill in search of a problem to solve,” he said, “We’ve created an instrument so blunt it runs afoul of Alaska’s constitution. It does require disclosures of personal information of high school trans girls in ways that are simply not comparable to asking if you have a clean bill of health and did you get good grades?”

Kiehl referenced a lengthy legal opinion by the legislature’s legal team that says in no uncertain terms that the legislation is deeply problematic and raises several constitutional concerns, including how it singles out trans girls from participating in girls sports while it doesn’t do the same to trans boys.

The Republican-controlled Senate Education and Judiciary committees, both of which are chaired by Anchorage Republican Sen. Roger Holland, have never offered the Legislature’s legal team an opportunity to testify on their legal memo or answer questions. Instead, Holland has only invited far-right attorneys who’ve supported this legislation. That includes Matt Sharp, an attorney for the anti-LGTBQ Alliance Defending Freedom, who argued that the state’s privacy law is not as strong as people think. Sharp does not practice law in Alaska.

Sponsors and backers of the legislation also argue that it doesn’t violate the privacy of the individuals because it only requires them to provide a copy of their birth certificate to schools, not to publicly disclose their status. The legal memo that they’ve been unwilling to engage with says that’s still a problem.

“To the extent ... SB 140 requires disclosure to a school or others of a student's biological sex or transgender status, or requires a student to produce records or other evidence of the student's biological sex, such requirements may violate the student's right to privacy,” explains the memo, a copy of which can be found here. “Further, requiring a transgender female to participate in an athletic team or sport designated male will require the student to publicly disclose the student’s transgender status, which may also violate the student's right to privacy.”

It also notes that the Alaska Constitution’s right to privacy is far more firm than the U.S. Constitution.

Given the legislation has been scheduled for a floor vote, it’s likely that there are already the votes in the GOP-controlled Senate to pass the legislation. It’s believed that it would not pass in the bipartisan House.

About the University of Alaska

The legislation no longer contains a provision that would force the University of Alaska system to abide by the new standards. Hughes said she plans to push for that in the future but backed off after a conversation with the University of Alaska President Pat Pitney.

“She personally said she sees the importance of setting this policy for the university and personally supports it,” Hughes relayed to the committee.

Realistically speaking, the inclusion of the University of Alaska in the legislation created unknown costs for the state because it would hamper the university’s ability to participate in the NCAA and host NCAA tournaments and competitions. Asked if Hughes’ statements about Pitney’s position on the legislation was true, UA spokesperson Robbie Graham provided me with the following statement:

“President Pitney supports a final resolution to this issue, which is being debated in many states across the country, and will likely be settled by the courts.”

Alaska Supreme Court rules against UA students in scholarship case, leaving issue to legislators

A lawsuit brought by a group of University of Alaska students in an effort to protect the state’s scholarship fund from being liquidated by Gov. Mike Dunleavy has come to a disappointing end.

After hearing oral arguments on Tuesday, the Alaska Supreme Court has upheld a Superior Court decision that found Dunleavy’s expansion of the Constitutional Budget Reserve’s sweep that targeted the funding source for the state’s scholarship programs was, in fact, legal.

With a full opinion expected at a later date, the Alaska Supreme Court’s order doesn’t delve into any details. Superior Court Judge Adolf Zeman found the Higher Education Investment Fund met the requirements for the annual sweep but noted that the Legislature could set up a separate fund outside the reach of the sweep.

“The programs the HEIF currently helps fund—the Alaska Performance Scholarship, Alaska Education Grants and WWAMI—do not have to become obsolete following the court’s decision here today,” he wrote. “If the Legislature believes these programs should be funded, it possesses the power to establish the HIEF as a separate fund outside the general fund or to appropriate money from other sources—for example, a reverse sweep of the CBR—to fund the programs in the future.”

The attorneys for the University of Alaska students had argued that the establishment of the scholarship fund was meant as a lasting promise to students and should be treated akin to the multi-year appropriations for things like bridges. The Dunleavy administration’s attorneys argued there was no promise.

“The purpose of the fund is to create some sort of stability and a promise to students that they’re going to get money for the course of their education. It’s not actually a promise. It’s not a contract,” said Assistant Attorney General Margaret Paton-Walsh during the Superior Court arguments. “It’s all just discretionary. It’s all just words. The Legislature can honor it or not honor if it wants. It’s not like signing a contract with a contractor. … It’s not the same thing at all.”

That means restoring a stable and long-term source of funding for the scholarships will require action by the Alaska Legislature. The House has already passed two bills that would achieve this goal, including a budget that would restore $359 million to recapitalize the fund. The Republican-controlled Senate has not yet acted on any of these issues.

The most-recent development on this front was the House’s passage of House Bill 322 earlier this week, which would establish the Higher Education Investment Fund as well as the Alaska Marine Highway System Fund and the Alaska Marine Highway Vessel Replacement Fund outside the reach of the sweep. It passed the House on a 25-15 vote.

The legislation, as well as the funding, would need to be approved by both the Republican-controlled Senate and Gov. Dunleavy. While Dunleavy has nominally voiced support the programs, he and his supporters have argued against creating a dedicated fund and instead have argued that it should be funded year-by-year, battling with every other program in state government.

Supporters of the fund have argued that stability and separation from the annual political battles is necessary for students to be confident that the funding will be there throughout their time in college.

Background

The Midnight Sun Memo by Matt Buxton

Senate to vote on GOP bill banning trans…

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