Two Utah Republican lawmakers have proposed bills aimed at distinguishing what spaces transgender people can — and can’t — enter. The initial bill language was first published on the Legislature’s website on Thursday, five days before the beginning of Utah’s 2024 legislative session.
The first, from Blanding Republican Rep. Phil Lyman titled “Use of Sex-Designated Facilities in Public,” would prohibit transgender people from using restrooms, locker rooms and changing rooms in Utah’s K-12 schools and higher education institutions that align with their gender identity. The legislation, HB253, would also require public schools to create policies that only allow people to use such spaces according to their assigned sex at birth, with limited exceptions, as well as outline disciplinary measures if students don’t comply.
Another from Rep. Kera Birkeland, R-Morgan, is a much more sweeping bill that would legally define a female as “an individual whose biological reproductive system is of the general type that functions to produce ova.” If the bill passes, it would impact numerous areas of state law, and limit transgender people from accessing gender-affirming spaces and opportunities.
A history of targeting transgender Utahns
The pair of bills continues a recent pattern of GOP state lawmakers proposing bills that determine how transgender people go about their lives in the Beehive State.
In 2022, the Legislature passed a bill from Birkeland that banned transgender girls from participating on school sports teams that affirm their gender identities. Gov. Spencer Cox vetoed the measure, but the Republican supermajority voted to override him.
The law is currently on hold while it’s challenged in state court.
GOP lawmakers voted last session to prohibit transgender youth from accessing health care that helps them embrace their gender identity, pending a study of the impacts of such care with an indefinite deadline. Cox signed that bill into law.
Equality Utah, the most visible LGBTQ+ advocacy organization at the Capitol, said in a statement that it has “significant concerns” with the two bills.
“At the heart of both bills, are restrictions on the ability for trans people to use restrooms, a necessity as part of the human condition,” said Marina Lowe, the policy director for Equality Utah. “These bills, as currently drafted, raise substantial legal and practical concerns for the state, and would make life incredibly difficult for trans Utahns.”
HB257
Titled “Sex-based Designations for Privacy, Anti-bullying, and Women’s Opportunities,” Birkelands’s HB257 is seemingly modeled after the “Women’s Bill of Rights,” a template piece of legislation from the right-leaning Independent Women’s Law Center that seeks to limit who is considered a woman.
When Birkeland opened the bill file late last year, it was originally titled “Women’s Bill of Rights.” Birkeland said she would not provide comment on the legislation to The Salt Lake Tribune.
Several other Republican states have implemented similar measures in the past couple of years, either through their state legislature or by executive order.
It’s unclear just how far-reaching Birkeland’s bill, which is hundreds of lines long, might be. After defining “female,” the key section of the legislation reads:
“To preserve the individual privacy and competitive opportunity of females, an individual is not entitled to and may not access, use, or benefit from a government or otherwise publicly funded facility, program, or event if:
the facility, program, or event is designated for females; and
the individual is not female.
“To preserve the individual privacy and competitive opportunity of males, an individual is not entitled to and may not access, use, or benefit from a government or otherwise publicly funded facility, program, or event if:
the facility, program, or event is designated for males; and
the individual is not male.”
Such distinctions, Birkeland’s bill says, would extend to domestic violence shelters and rape crisis centers. A 2022 report from the Utah Office for Victims of Crimes identifies transgender people as being more at risk of experiencing violence than other Utahns.
Federal grants for such facilities generally include a non-discrimination provision, which protects gender identity. If passed, the measure could potentially put federal funding at risk.
The bill also says it would impact athletics and other public education programs.
It would require schools to treat women’s athletic programs more equally, directing them to ensure they have access to facilities with a quality equivalent to the men’s. If two programs for separate sexes share a facility, neither team would be allowed to have a more advantageous training schedule.
The bill, according to its current language, would require schools to work with parents of transgender students who wish to access a space that aligns with their gender identity to create a “privacy plan.”
In facilities open to the general public, transgender people who have both legally amended their birth certificates to reflect their gender identity and undergone a “primary sex characteristic surgical procedure” would be allowed to enter gender-affirming spaces.
Lowe said that although she’s unsure whether Equality Utah “can reach agreement on the language in, or policy behind” Birkeland’s bill, the representative “has shown a willingness to hear our concerns and we will continue to engage with her on HB 257.”
HB253
Lyman’s bill, titled “Use of sex-designated facilities in public,” focuses specifically on restrooms and locker rooms in schools, and would require both K-12 schools and higher education institutions to establish policies that limit students to spaces that align with their sex assigned at birth, and unisex spaces, if there are any available.
Those policies would also include disciplinary measures for anyone who declines to obey those rules.
“I think people are seriously ready to have the question answered about two genders,” Lyman, who is challenging Cox in the GOP primary this year, said in an interview. “My bill definitely does that.”
Possible legal challenges?
According to data collected by the think tank Movement Advancement Project, while Utah does not currently have any laws on the books restricting its transgender residents’ restroom access, nearly a dozen other states do.
If they become law, both bills could be subject to a legal challenge.
After a student and their mother sued an Indiana school district for its policy that keeps transgender students from using gender-affirming restrooms, the 7th Circuit Court of Appeals found that the district violated the 14th Amendment’s Equal Protection Clause and Title IX, which prohibits sex discrimination in education.
The school district has asked the U.S. Supreme Court to take up the case and is awaiting its decision.
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