In a surprise move in the waning hours of the legislative session, state lawmakers have brought forward, debated and passed a proposal to bar transgender girls from competing in school sports matching their gender identities.
The bill language made public late Friday evening, just hours before lawmakers adjourned, defines sex as a biological condition “determined by an individual’s genetics and anatomy at birth” and states that a “student of the male sex” cannot join female interscholastic athletic activities.
The proposal offered up by Sen. Dan McCay dramatically altered a bill sponsored by Rep. Kera Birkeland — and some state lawmakers objected to last-minute changes that would have major impacts on the lives of students.
“I think we’re sending a very, very dangerous and powerful message to our young people in school,” said Rep. Sandra Hollins, D-Salt Lake City. “And that message is, you don’t matter.”
Sen. Daniel Thatcher, R-West Valley City, said he would’ve supported the proposal several years ago but that he’s changed as he’s gotten to know some of the kids the bill would affect.
“I’m sorry that I couldn’t do more,” he said, his voice breaking. “I’m sorry that tonight’s going to be really hard for you.”
State senators also raised concerns about legal liability for the state and school systems that enforce the ban.
But McCay, R-Riverton, said doing nothing also exposes the state to risk, asking his colleagues what would happen if a transgender athlete hurts another student on a playing field. Defending a ban in court could be expensive for the state “but that doesn’t mean you yield completely,” he said.
And Birkeland said the state Legislature is duty-bound to do something, both for transgender students who want to compete fairly and for cisgender girls who “feel like they’re the monsters, who can’t have a voice when they say that they’re uncomfortable playing against a transgender athletes.”
State lawmakers who supported the changes also argued that transgender girls would have a competitive advantage in female sports, with one senator drawing a comparison between student athletics and horse racing.
“Even in the equine industry, they don’t run fillies against colts,” state Sen. David Hinkins, R-Orangeville, said.
After more than an hour of emotional debate, the Senate passed the overhauled bill by a vote of 16-13, with seven Republicans joining all six Democrats in opposing it. Minutes later, House lawmakers approved the proposal 46-29, with a number of GOP lawmakers again crossing the aisle to vote with Democrats against it. Neither vote is a veto-proof majority.
Speaking to reporters Friday night, Gov. Spencer Cox said McCay’s revisions came as a complete shock to him and that he’s “very disappointed in the process.” He vowed to veto the legislation when it reaches his desk — a decision that Lt. Gov. Deidre Henderson applauded, tweeting that in her decade on Capitol Hill, she’s “never felt as sick over the debate or outcome of a bill as I did over this one tonight.”
In an interview with The Salt Lake Tribune, Cox said: “Anyone that’s interacted with the transgender community understands how amazing they are and how difficult it can be for them. I don’t want to make things harder for them than they have to be.”
He also said he didn’t understand why lawmakers would want to subject the state to litigation and waste taxpayer dollars over a ban on transgender athletes participating in school sports.
McCay’s proposal was especially surprising since the Legislature rejected a total ban during last year’s session, concerned that the measure would lead to boycotts and cost Utah high-profile athletic events.
Since, Birkeland has spent months speaking with parents, kids and LGBTQ advocates to come up with a different approach to transgender student participation in school sports. And in the wake of those extensive negotiations, LGBTQ advocacy group Equality Utah described the ban proposal as a “betrayal.”
“Representative Birkeland has repeatedly told both the public and legislative colleagues that she does not want a ban. Yet here we are,” Equality Utah said in a statement posted to Twitter. “In this case, on this day, we have utterly failed to find a path forward. We have failed our state’s transgender children, who just want to be treated with kindness and respect.”
But Birkeland noted that even her attempts to strike a middle path hadn’t won support from Democratic lawmakers and blamed politics for her bill’s messy conclusion.
The original version of this year’s bill, HB11, would’ve required transgender student-athletes who wanted to play in sports matching their gender identities to come before a state-appointed commission that would evaluate their request.
The panel could consider the student’s physical characteristics such as height and weight. It would then decide if granting the request would “present a substantial safety risk to the student or others” or would likely “give the student a material competitive advantage when compared to students of the same age.”
LGBTQ advocates objected to the proposal, saying that forcing a child to appear before the commission would be damaging and demeaning. They also critiqued the bill for assigning state political leaders to appoint members of the panel, voicing concern that this could inject anti-transgender sentiment into the selection process.
Socially conservative groups also hated the bill and told legislators they wanted a total prohibition on transgender girls in female athletics.
However, all-out bans passed in Idaho and other states are mired in legal challenges and still haven’t yet gone into effect, which some Utah legislators pointed out while expressing doubt in the value of this hard-line approach.
McCay’s proposed language does contain a trigger stating that if courts block the full ban on transgender girls in female sports, the commission system proposed by Birkeland, R-Morgan, would take effect.
LGBTQ advocates have stressed that the Utah High School Athletics Association already has a process that requires transgender girls to complete at least a year of hormone therapy before competing in female sports.
Tribune reporter Kim Bojórquez contributed to this report.