Blocking gender-affirming health care in Utah could be found unconstitutional, a legal review found

A legislative legal review obtained by The Salt Lake Tribune says Utah Senate Bill 16 could be challenged in court as unconstitutional. The revised bill passed the Utah House on Thursday.

(Trent Nelson | The Salt Lake Tribune) People gather at a rally in support of transgender youth at the Capitol building in Salt Lake City on Tuesday, Jan. 24, 2023.

A bill to block doctors from providing gender-affirming health care to transgender minors could be deemed by a court to be unconstitutional, a legal review by the Utah Legislature found.

Still, on Thursday, the Utah House gave their final approval to the legislation. The House lawmakers passed a bill slightly different than senators sent them earlier this week, meaning state senators will need to vote on the House’s new version of the bill. That vote could come as early as tomorrow.

Senate Bill 16 bans surgeries on minors if they are intended as part of a sex change. The bill also enacts a moratorium on prescribing hormone treatments for new patients, like puberty blockers, for transgender youth. During that pause, the Utah Department of Health and Human Services will study the scientific data on the use of those medications.

The legislation also makes it easier for transgender patients to sue medical providers for malpractice if they change their minds about their decision.

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The bill passed with a 58-14 vote. Rep. Quinn Kotter was the only Republican to vote against the bill, while Democrats were united against the ban.

The Utah Senate will need to sign off on the changes adopted by the House before the legislation heads to Gov. Spencer Cox’s desk. Once signed by Cox, the ban will be effective immediately. The original version of the bill postponed the ban until May.

In an interview with KSL NewsRadio, Cox said he was prepared to enact the Senate’s version of the ban. On Thursday, a spokesperson for the governor said Cox was reviewing the House’s latest version.

Ahead of the vote, Rep. Katy Hall, R-Ogden, said her colleagues have a moral obligation to vote for the bill to protect children from making a permanent decision at a young age.

“We must stand up and protect them. The future of our state, nation and world depends on the young ones we are privileged to serve,” Hall said.

Freshman Rep. Sahara Hayes, D-Salt Lake City, fought through tears as she urged her colleagues to “put a pause” on the bill and focus on the needs of children.

“I think we focus on the transgender part and not the fact that they’re kids. These are our nieces and nephews. These are the kids next door. This is your best friend’s teenager,” Hayes said.

Rep. Ray Ward, R-Bountiful, who is a physician, voted for the bill but was troubled by the heated rhetoric that has surrounded the debate.

“The two sides of this discussion either see these treatments as always and only permanently damaging to children, and the other side sees these treatments as always and only beneficial to children. The truth is somewhere between those two things,” Ward said.

“Many in the trans community regard us as their enemy for passing this bill even though we may do so with an honest spirit of compassion,” he added.

A legal opinion from legislative lawyers obtained by The Salt Lake Tribune warns there is a chance the legislation would be found unconstitutional by a federal court for several reasons.

According to the opinion, the ban on hormone therapy for new patients could be problematic since there is no definite end date. Because of that, a court could decide that it is functionally the same as a ban. Federal courts have blocked similar bans in other states.

Since SB16, sponsored by Sen. Mike Kennedy, R-Alpine, specifically singles out transgender individuals, it could violate the Equal Protection Clause of the Constitution, and federal courts have stopped similar bills in Alabama and Arkansas for that reason.

Utah’s legislation blocks surgeries on minors, such as breast reduction or augmentation, as part of a sex change, while the very same surgeries are permitted for any other reason According to the legal review, a lawsuit could argue the bill discriminates based on sex or transgender identity, and the claim that the government is protecting children from medical procedures is not sufficient.

Legislative lawyers also warn SB16 may trample on a parent’s right to direct their child’s medical care. While parental rights are not absolute, courts have held that any intervention by the state must be based on a compelling interest and have a narrow focus. A federal court found Alabama’s ban did not meet either standard since twenty-two major medical associations endorsed using medications for transitioning.

Troy Williams with Equality Utah said to expect a legal challenge to the legislation, which will likely happen in short order.

“With the new substitute, SB16 is no longer a moratorium but rather a full ban on transgender medical care. Utah lawmakers have ensured that litigation is now inevitable. This debate is far from over. It will next move to the courts,” Williams said in a text message.

Correction • This story has corrected the spelling of Rep. Sahara Hayes’ name.