I’d been at the Capitol all of two minutes Friday, hadn’t even made it up the first flight of stairs, when a tipster told me to watch for the “secret 4th substitute” to HB11.
House Bill 11 was a highly charged bill seeking to restrict transgender athletes from competing in sports, the notion being, some lawmakers argued, that athletes born male have an advantage if they compete with females.
Last year, Rep. Kera Birkeland, R-Morgan, tried to ban transgender competition entirely — the kind of punitive, alarmist policy being pumped into statehouses nationwide by conservative groups. She failed after Gov. Spencer Cox threatened to veto the bill and then spent a year meeting with LGBTQ groups and Utah conservatives to try to find some middle ground.
That’s “the Utah way,” right? Maybe not so much.
What they came up with was a troublesome commission that would measure a child’s “height, weight, body mass, bone density, flexibility, wingspan, hip-to-knee ratio, stride, oxygen saturation” and other factors to decide if the student should be eligible to compete.
Nobody really liked it. Conservatives saw it as too permissive and LGBTQ advocates shuddered at the thought of a transgender child being subjected to humiliating poking and prodding. But both sides could live with it.
Throughout the debate, lawmakers cited, again and again, a transgender University of Pennsylvania student who swam for years on the men’s team before shattering records on the women’s team.
In Utah, this has yet to be a problem. David Spatafore, the lobbyist for the Utah High School Activities Association (UHSAA), said the current policy prohibits transgender women from competing until they’ve certified that they have had a year of hormone therapy, a life-altering commitment.
“As we read the science right now, we like our policy,” Spatafore said. “This year we have four students who have gone through our paperwork and we have not had any complaints from any other students or families or school administrators.”
Nonetheless, Birkeland, Sen. Curt Bramble, R-Provo, and the Republicans wanted to prevent the potential for Utah having the next Penn swimmer.
So on March 4, Bramble put forward a compromise, the third substitute, striking the specific physical criteria and letting the commission decide itself if a child should compete. At the time, Bramble told me, he had the votes to pass it.
The matter seemed settled. Based on numerous interviews, mostly with those who agreed to talk if they were not named, here is an inside look at how it all fell apart.
In the week after Bramble’s bill became public, conservative groups pushed hard on lawmakers. Hours before the vote, Gayle Ruzicka, president of the Utah Eagle Forum, was pulling lawmakers off the floor to have private conversations. She raised alarms, I’m told, about locker rooms and even suggested transgender girls have their own division to compete against each other.
The full-court press worked. In the closed-door Republican caucuses, the votes turned. Some still wanted the commission. Some wanted an outright ban. Some favored revisiting the issue later.
That’s when Sen. Dan McCay, R-Riverton, proposed a hybrid alternative: a full ban that would revert to the commission if the prohibition was struck down by the courts, which he conceded was likely to be the case.
But the issue was sensitive. Rather than make the alternative public, senators decided to keep it secret until the very end of the session, and only after the deadline had passed for candidates to file for office at 5 p.m. Friday.
That timing element was critical. Senators in potentially competitive districts didn’t want to draw opponents for supporting the measure.
So at about 8:30 p.m. on the final night of the general session, McCay made a motion to substitute the bill with entirely new language. It was a jarring pivot, one that Cox said later had caught him completely by surprise.
Democrats, too, went into a frenzy and asked for a recess to read the new language. In a break with normal Senate courtesies, Republicans refused and plowed ahead.
The debate was passionate and emotional. Even absurd at times.
McCay acknowledged the bill would draw a lawsuit and that UHSAA, and possibly local districts, would be stuck with unknown costs. Each of the 10 states that had passed bans had been sued.
Sen. Jani Iwamoto, D-Salt Lake City, recalled how her ancestors had their physical features measured in Japanese internment camps. Sen. David Hinkins, R-Orangeville, a horse breeder, argued that colts (male horses) are innately faster and stronger than fillies and the same is true of humans.
And Sen. Daniel Thatcher, R-West Valley City, apologized to any transgender young people watching. “I’m sorry that I couldn’t do more. … I’m sorry that tonight’s going to be really hard for you,” he said through tears, urging them to seek help if they were contemplating suicide.
None of it mattered. The real debate and the real votes had already been counted in the Republican caucus. The bill passed 16-13 and was approved a short time later by the House.
Cox appeared upset and emotional about the late-session antics and said he would veto the measure as soon as it reached his desk. Lawmakers would have known this ahead of the vote, as Cox threatened to veto last year’s opposed ban.
“Anyone that’s interacted with the transgender community understands how amazing they are and how difficult it can be for them,” he said in an interview with my Salt Lake Tribune colleagues. “I don’t want to make things harder for them than they have to be.”
Bramble said he understands the governor’s emotion. “I’m sure he feels hurt. He’s angry,” Bramble assumed of the governor, but argued Cox didn’t do anything to try to help get votes for the commission proposal.
“I think we need to find a pathway,” Bramble said. “I think transgender female athletes ought to be able to participate in sports. But the question is in what context when there’s a clear biological difference between men and women?”
But the Republican lawmakers made it much more difficult to find any middle ground. After all, how can anyone negotiate in good faith when they’ve shown they will not honor their commitments?
A second take-away seems obvious: Good policy isn’t made in backrooms. These debates on important, highly charged matters of public interest should not be decided by scheming and plotting in closed-door caucuses.
Finally, it seems there is no length some lawmakers won’t go to in order to score cheap political points. Of course, the governor would veto it. But this way Republican legislators up for reelection get to go brag to their constituents about how they have served the Fox News masters — they kept colts from competing against fillies (even if they didn’t). And by rigging it so nobody upset by the move could challenge them in the next election, they’ve ensured there will be no accountability in the ballot box.
I’m sure it was a proud night for them. And all it took was cruelty and disregard for a small group of kids who were already facing challenges few of us can even imagine — kids who deserve our compassion and support.
I guess now this is the Utah way.