‘Right now we basically have anarchy’: Utah lawmakers want to clarify the process for legally changing genders — though one suggested getting rid of it

Chris Detrick | The Salt Lake Tribune Senator Todd Weiler is pushing legislation to clarify when a judge should accept a petition to change a person's legal gender. File photo from Thursday March 10, 2016.

There are holes in the law allowing Utahns to legally change their gender, state Sen. Todd Weiler said Tuesday, and that ambiguity has led the courts and government agencies to take their own — sometimes inconsistent — approaches to each request.

“Right now, we basically have anarchy,” the Woods Cross Republican said. “Any judge can make up any criteria and make any court order.”

Weiler sponsored a bill during the past legislative session aimed at establishing clear rules for legally changing one’s gender. That effort failed amid objections from far-right conservative groups and advocates for the transgender community, as well as a pending ruling on a gender change case by the Utah Supreme Court.

But on Wednesday, Weiler was joined in the effort by his colleagues on the judiciary interim committee. They voted to take up the issue as a potential committee bill, which would give it a better chance to succeed in the next session.

The motion received a single opposing vote, from Grantsville Republican Rep. Merrill Nelson, who repeatedly suggested that a simpler way to eliminate the ambiguity would be to remove references to sex changes from Utah law, effectively banning the practice.

“How about just taking out those three words?” Nelson asked, referring to an “or sex change” clause in the statute for amended birth certificates. “We’re not bound to take this course. There are other alternatives.”

Weiler responded that banning the legal change of gender would likely generate headlines and potentially exacerbate legal challenges.

“I don’t think that will end well for Utah,” he said. “But that’s one option.”

Weiler also pushed back against arguments he encountered earlier this year when his bill was under consideration.

He referred to an email sent to lawmakers by the conservative Utah Eagle Forum listing concerns about legal gender change. Those concerns included individuals petitioning the courts to change their gender designation despite retaining their male or female genitalia, and then participating in single-gender athletic leagues, using single-gender restrooms and shower facilities, or swimming topless in a public pool.

All of those scenarios would be unaffected by his bill, Weiler said, as current law allows for Utahns to be reissued an amended birth certificate reflecting their legal gender identity.

“All of the harms, I believe, that were being perpetuated by the right that my bill would cause are already allowed under the status quo,” he said.

Gayle Ruzicka, Utah Eagle Forum president, later said Weiler had taken liberties in describing her objections but did not rebut the examples shared from her letter with lawmakers.

She said Weiler’s proposed legislation set too simple a criteria for gender change petitions, which would have the effect of requiring judges to issue an order for a new birth certificate in nearly every requested case.

“I don’t think we have to go to the extreme of mandates,” she said. “I think judges should always be allowed to judge.”

Marilee Boyack, Utah president of Family Watch International, cautioned against requiring judges to rule on changes to factual, scientific identifiers like gender.

“Sex is an immutable characteristic that is found to the cellular level in every one of us,” Boyack said. “Our chromosomes dictate what sex we are. This cannot be changed.”

Lawmakers also were encouraged to consider the issue by Utah Pride Center Chairwoman Sue Robbins, and Drew Armstrong, a Utah Republican Party delegate and father of a transgender son.

“These kids are vulnerable,” Armstrong said. “They’re not flamboyant drag queens. They want to fit in.”

Robbins referred to two points of controversy in Weiler’s original bill: that gender change petitions be accepted only at age 18 or older, and that reissued birth certificates indicate that they were amendments. Robbins said she would not support a bill that included those two provisions, asking instead that reissued birth certificates be “clean," and that legal change of gender be available before a person receives a state-issued driver license, applies for college enrollment and scholarships, or enlists in the U.S. military.

“Being tansgender or intersex isn’t just an adult identification,” Robbins said. “It is an identification across all ages.”

While the interim committee voted to work on the issue, their comments during debate suggested a number of concerns that could impede endorsement of a final bill. Committee co-Chairman Rep. Mike McKell, R-Spanish Fork, suggested Weiler had “a big hill to climb, maybe a mountain,” and Rep. Bruce Cutler, R-Murray, voiced hesitation about widening the amendments to a government-issued certificate of birth.

“Can we change this to become an ‘identity’ certificate?” he asked. “That would be my idea.”

Weiler said he will run a bill individually if the committee is unable to reach a consensus. It is unacceptable, he said, that the Legislature had not done its job in defining the law around legal change of gender.

“The world has moved,” Weiler said. “The landscape has shifted, [but] the Legislature has remained silent.”

After the committee hearing, Nelson clarified that while banning the change of gender would be the “easiest” option, it is not necessarily his position on the issue. He said he objects to Weiler’s proposal being presented as the only option available to lawmakers.

“We’re not locked in just because a prior Legislature put those three words into statute,” Nelson said.