Utah House passes proposal to exclude transgender girls from female athletics in public schools

Legislative attorneys warn the measure if passed could be overturned by the courts.

(Trent Nelson | Tribune file photo) Flags standing at City Hall in Salt Lake City on Tuesday, Nov. 17, 2020. to mark Transgender Awareness Week. Each of the more than 300 Trans Pride flags stands in remembrance and is marked with the name and story of a transgender person murdered in the last year.

An effort to bar transgender girls from competing in female K-12 sports continued to make headway in the Utah Legislature, gaining passage through the House on a largely party-line vote.

Opponents of the bill — titled “preserving sports for female students” — warned that it would further stigmatize youth who are already vulnerable and at higher risk for suicide. They said it would draw a legal challenge that Utah would likely lose. And they said it could undermine Utah’s prospects for hosting future sports tournaments and even the Olympics, given the probability that event organizers would choose to boycott the state.

But the bill’s sponsor and other House Republicans argued HB302 is necessary to ensure that Utah’s young girls can play sports without going up against transgender athletes who, they contend, have an unfair physiological advantage.

“When everybody who walks onto a court or field knows with confidence that it is a fair playing field, I won’t regret the anger or the rudeness that has come my way,” Rep. Kera Birkeland, R-Morgan, who sponsored the bill, told her colleagues on the House floor. “Because I know this is the right thing to do.”

The legislation 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 on a 50-23 vote in the House, 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.

A spokeswoman for Utah Gov. Spencer Cox said in a statement that “this is a very complicated and controversial issue and we will continue to work with the bill sponsor and others to find the right policy.”

Rep. Jennifer Dailey-Provost called the legislation “cruel” and “heavy-handed” and suggested that it’s disingenuous to portray it as an attempt to address gender inequities in sports. If that were the point, she argued, lawmakers would be paying attention to the outsized resources directed towards men’s athletics.

“This bill chooses to bully and belittle vulnerable children instead of us choosing to pluck up the courage to fix the real problems that perpetuate gender-based inequality in the state of Utah,” the Salt Lake City Democrat said.

House Democrats also highlighted the potential financial consequences of passing the bill, which the state would likely have to defend in court. Legislative attorneys have warned that there is a “significant risk” a judge would find the law unconstitutional.

It’s “possible, if not probable, that a court would hold it unconstitutional,” Michael Curtis, an attorney with the Office of Legislative Research and General Counsel, told a legislative committee last week.

Legislative attorneys have explained that the bill “raises constitutional issues” relating to the 14th Amendment, which guarantees equal protection under the law.

“A plaintiff could argue that the bill treats transgender students differently than other similarly situated students, and even transgender male students differently from transgender female students, without a sufficiently significant basis for the disparate treatment based on sex,” a legislative attorney wrote in a recent analysis of HB302.

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.

However, several House Republicans on Wednesday argued that the need for the bill is obvious — saying that transgender girls have a clear advantage over cisgender females when it comes to speed and strength.

“My daughter would never be able to beat me in a foot race at my prime,” said Rep. Casey Snider, R-Paradise, who told House members that he was a good, but not exceptional high school runner. “Nor would she be able to beat any other man.”

But Troy Williams of Equality Utah said after the vote that the bill’s proponents have “distorted both facts and science” to falsely suggest that transgender girls are dominating women’s sports.

“This is a cruel attempt to exclude a marginalized group of children,” Williams said.

“In my 15 years of advocacy work and almost a decade of working with gender-diverse individuals and their families, I have never seen a time when these young people have been more under attack,” Candice Metzler, executive director for Transgender Education Advocates of Utah, said in a statement. “The messages being sent to them are damaging on a number of levels.”

The bill’s critics have also noted the billions of dollars in economic damage that North Carolina suffered after enacting the “bathroom bill,” a law that banned transgender people inside state buildings from using restrooms that fit their gender identities. The NCAA even enacted a ban on holding championship events in the state until the law was repealed.

But House Majority Leader Francis Gibson discouraged lawmakers from letting economic considerations guide their vote on Birkeland’s proposal.

“Do I believe that the events in North Carolina happened? They did. Are they permanent or long-lasting? They have not been,” the Mapleton Republican said, adding that Utah has historically taken “tough decisions into action.”

Six House Republicans joined Democratic lawmakers in opposing the measure, which still passed by a healthy margin. Now that HB302 has cleared the House, it will move to the Senate.

Rep. Rex Shipp, R-Cedar City, is running a separate bill aimed at transgender youth. His bill, HB92, would make it “unprofessional conduct” for a person to perform a “transgender procedure on a minor,” such as hormone therapy for minors who are considering transitioning or a procedure altering their sex characteristics.

That bill has not yet received a committee hearing.

– Tribune reporter Bryan Schott contributed to this report.