A Utah House committee voted Thursday in favor of a bill that would bar transgender girls from competing in female sports in public and private K-12 schools — even as a legislative attorney warned there was “significant risk” a court could find the law unconstitutional.
Titled “preserving sports for female students,” the legislation from Rep. Kera Birkeland would require schools to categorize all athletic activities as “male,” “female,” or “coed.” Students of the “male sex” would not be permitted to join in sporting events designated as being for women, according to the bill, which defines sex as the “biological, physical condition of being male or female, determined by an individual’s genetics and anatomy at birth.”
HB302, which passed after two hours of debate with an 8-6 vote on Thursday, does not address transgender boys, who it appears would not be barred from participating in athletic activities with boys’ teams under the bill. It also does not contemplate people who are intersex, or who are born with both male and female traits.
Birkeland, R-Morgan and a junior varsity basketball coach for the girls’ team at Morgan High School, has said she sees the bill as a way to improve “fairness and equality with women’s sports.”
“Across America there are stories of individuals who identified as male at birth competing against our female athletes,” she told the House Education Committee on Thursday. “These individuals who identify as male at birth are breaking records that no female will be able to reach. They’re taking championships, titles and scholarships from our female athletes. To say it’s taking a toll on our female athletes would be an understatement.”
Gayle Ruzicka, leader of the conservative Utah Eagle Forum, raised the specter of the end of women’s sports if transgender girls were allowed to participate in girls’ sports, arguing that people who are born biologically male are “generally bigger, faster, stronger” and have “larger hearts and lungs, denser bones and stronger muscles.”
Two women on Southern Utah University’s track team also spoke in support of the bill, detailing their anguish at competing against a transgender woman from another state. One urged lawmakers to support the bill so no woman feels “like they’ve lost before the gun goes off.”
Far more people, though — including several members of the LGBTQ community and parents of transgender youth — signed up to speak against the bill.
Opponents note that there are variable levels of athleticism among people who are members of the transgender community, as among people who are cisgender. And they argue that the proposal sends a harmful message to transgender students who already struggle with belonging in the conservative state.
“We hear that there is not one transgender athlete playing right now in our state schools,” noted Jennifer Plumb, a pediatrician and public health advocate. “I’ll tell you what we have had: between 2017 and 2019, we had 414 young Utahns kill themselves. We need to think about what we’re doing here when we put bills in place that already take a vulnerable population and say they do not matter. Please support our kids. This is a problem that does not exist.”
Troy Williams, executive director of Equality Utah, urged lawmakers to pump the brakes on the proposal, arguing that it was discriminatory against transgender youth.
“It tells some children, ‘You can’t play; you don’t belong on the field,’” he said. “That’s discrimination. So please, let’s follow the Utah way. Let’s slow this down. Let’s collaborate together so we don’t have this big ugly culture war.”
In response to those accusations, Birkeland said she has “many friends who are transgender” and that it wasn’t her “intention to [exclude] them from the sport.”
“But we have to weigh that against what is fair for our female athletes,” she said.
Questions of constitutionality
If ultimately approved, Birekland’s bill would open the door for legal action against schools that don’t comply with the ban, stating that students who lose an athletic opportunity or feel harmed by a violation of the mandate could sue for damages. Whistleblowers who face repercussions for flagging an infraction could also sue, as could institutions that suffer harm from a governmental entity, licensing or accrediting group or athletic association.
But several lawmakers worried Thursday that the bill itself would open the state to litigation.
Michael Curtis, an attorney with the Office of Legislative Research and General Counsel, told the committee that case law is not settled on this issue but that, given a recent Supreme Court ruling and cases from other jurisdictions, the bill’s passage was “certainly highly risky.”
It’s “possible, if not probable, that a court would hold it unconstitutional,” he added.
Idaho, which is the only state that has so far approved one of these youth sports measures, immediately saw the law challenged in federal court. It was temporarily blocked from going into effect after a judge found the plaintiffs were “likely to succeed in establishing the Act is unconstitutional as currently written.” That case is now on appeal to the 9th Circuit Court of Appeals.
At least 11 other states are considering similar bills restricting transgender student-athletes this session: Connecticut, Hawaii, Iowa, Kentucky, Mississippi, Montana, New Hampshire, North Dakota, Oklahoma, Tennessee and Texas, according to Kaiser Health News.
The ban would run counter to NCAA rules, which allow transgender women who were born male to compete on female teams if they have been taking hormones for one year, according to Kaiser Health News. States that don’t follow NCAA rules could result in ineligibility to host championship games.
David Spatafore, who spoke on behalf of the Utah High School Activities Association, noted that the organization already has a policy in place for transgender athletes that hasn’t been challenged. And while he said the entity would ultimately enforce whatever state law passed, he asked that lawmakers include in the bill financial protection for UHSAA when litigation emerges.
The organization is already in a “financially precarious position” after expending resources to fight a lawsuit seeking to make girls’ football a UHSAA-sanctioned sport, he noted, and at the same time has lost tournament revenue during the coronavirus pandemic and is currently operating on reserves.
Marina Lowe, legislative and policy counsel with the American Civil Liberties Union of Utah, joked that the bill should be titled the “lawyer protection act” rather than “preserving female sports,” because it would likely prompt so many legal challenges.
Birkeland argued that “one way or another, litigation is coming.”
“The question is, do you want it to come from organizations or do you want it to come from parents?” she said. “Do you want to see communities ripped apart when a student at the young age of 16 or 17 is the center of that issue?”
It remains to be seen how the bill will fare in the full House, but it has support from at least one powerful lawmaker: the chamber’s top leader, House Speaker Brad Wilson.
In comments to reporters last week, he acknowledged that this was a “sensitive and difficult topic for those it affects,” but said he was in favor of the proposal, noting that the “way [Birkeland’s] got it crafted seems to make sense to me.”
“The intent of this bill, I think is very simple,” Wilson added. “The intent of this bill is to ensure that we do everything we can to support women’s sports and women athletes.”
Senate President Stuart Adams said Thursday that he was aware of the bill but hadn’t yet read it.
“There’s significant difference between men and women, I think we know that,” he said. “I’ll have to look to see what the bill does exactly. Hopefully it has a thoughtful process to it and tries to respect the transgender community and those who want to compete. It will be interesting to see how it moves through the House, how it’s refined.”
An effort to hold the bill in order to allow time for more deliberation and dialogue failed on a 5-7 vote. The bill now moves to the full House for further consideration.