‘It seems like a farce’: Parents criticize policy for how Utah sports commission judges transgender girls’ bodies

The rules set by the commission, according to parents of trans athletes, are vague and lack direction that would tell them what their kids need to do so they can play.

(Trent Nelson | The Salt Lake Tribune) Flags representing the transgender community fly at City Hall in Salt Lake City on Tuesday, Nov. 17, 2020. A Utah commission that decides which transgender female athletes can play set general standards in 2023 for how it will make a call in those cases; parents say those rules are too vague.

Parents of transgender girls who want to play high school sports in Utah say they haven’t been given any specific criteria that their kids would need to meet in order to compete.

And without that, the parents say the state’s process to decide if their kids can play has felt arbitrary — and to some, impassable.

“There are no rules, and it’s really up to the whims of this commission to determine if a kid gets to play something they really like and that means a lot to them,” said one parent after the Aug. 29 meeting where a decision was made in his daughter’s case.

Under state law, the School Activity Eligibility Commission hears cases and decides which transgender girls can participate. The commission was triggered as a backup plan from lawmakers after their outright ban on transgender athletes was enjoined by the court while a lawsuit over it moves forward.

At the commission’s first meeting in March, members passed a four-page policy that generally outlined how they would evaluate cases. The Salt Lake Tribune received a copy of it upon request.

It details asking for medical records of the student’s gender transition, measurements of physical characteristics, a diagnostic assessment from a doctor and details about past athletic competitions. The commission also “may, at any time, request additional evidence from the student,” according to the policy.

But while the commission will look at those measurements — and some have raised concerns about the members looking at minors’ bodies in that way — the policy doesn’t spell out any baselines. Not for weight, height, wingspan or muscle mass, for instance, which the law said the commission would consider. Nor does it provide standards for individual sports.

Instead, the commission has said it will judge each student’s request to play on a case-by-case basis.

“The factors that we need to consider based on physical characteristics are complex,” said Dr. Mike Henrie, the sports physiologist who chairs the commission, during that first meeting. “There’s some data that we can look to, but … I’m not sure the ease of publishing all of the individual factors in all of the individual circumstances.”

The policy that the commission passed — which was unanimously approved without discussion during the first meeting — was drafted by the Utah Attorney’s General Office.

Instead of detailed provisions, it says the commission will make an “eligibility determination” based on:

• Whether the student’s “assertion of a gender identity” can be proved with medical records, such as a document indicating that the student has received treatment for gender dysphoria.

• Whether the student participating in sports might present “a substantial safety risk to the student or others that is significantly greater than the inherent risks of the given activity.”

• Whether the student would have “a material competitive advantage when compared to students of the same age competing in the relevant gender-designated activity.”

The student can testify to the committee about their case, along with their parents and any chosen witnesses, including a doctor, during a closed session to protect their privacy.

But even the commission’s deliberations are kept private from them. According to the passed policy, the commission members “shall deliberate the facts relevant to the student’s physical characteristics and eligibility in camera or otherwise after temporarily excusing” the athlete and other participants.

The student and their family, along with their local athletic association, are told only the commission’s final decision — which is otherwise private under the law.

But the parents who have spoken during the public portions of the commission’s meetings say the members are operating under vague guidelines. They say there should be specific guideposts so that families know what to expect and there is some kind of standard across cases.

The parent who spoke during the Aug. 29 meeting said the process of going before the commission was hard on his daughter. He called it “grueling.”

“I feel like she was very poised in the first meeting, where she had a room full of adults, strangers asking her questions about her physical and mental characteristics, without ever explaining what they’re looking for specifically,” he said.

The parent said he hoped the commission members “recognize how difficult that is for a kid who’s marginalized anyway by virtue of who she is.” He said it’s frustrating when a family brings private records to the table and isn’t given set standards in return.

“As a parent, having to go through this — without knowing what the rules are, without knowing what we’re being judged on, without knowing if this commission is even trying to find a way that our daughter can participate — is incredibly difficult,” the dad said.

He pleaded with them to “act in good faith” and provide “unbiased evaluations based on objective, specific criteria for the sport in which they wish to participate.”

“Absent that, there’s no way that this is anything other than … I just hate to say it, but it seems like a farce,” the dad said. “I know that’s harsh. I know I’m emotional right now. But without objective criteria, it’s completely arbitrary.”

One commission member, Dr. Stacy Feiner, said: “I appreciate the parent’s statements.” No other members responded.

A dad also spoke during the Aug. 17 meeting. It is unclear if it’s the same parent who gave his thoughts during the Aug. 29 meeting as the minutes don’t identify the individual in order to keep the child’s name private.

This parent at this time said his family “asked repeatedly what information would be required, and we provided everything.” He said he was frustrated that the commission had delayed making a determination on whether his daughter could play.

“I don’t understand why a decision can’t be made on what’s already there, particularly where the specific criteria hasn’t been provided as to what would preclude her from participating at this point,” he said.

The commission members didn’t say anything in response to his comment.

A different parent brought up the same concerns during the public comment period at the first meeting, too, in March. That parent, who identified himself and said he has one transgender child and two transgender grandchildren, said he would also like to see baselines set to determine who can compete. If the commission is about fairness, he said, that level of transparency is needed.

The commission has not brought up any specific standards to discuss at any of its meetings since.

The commission is required to follow open meetings laws, and so it must post an agenda and minutes from its discussions. Based on those, the group has met five times. The members appear to have deliberated on at least four student cases.