Fear of lawsuits shifts Utah lawmakers’ approach to transgender bill

Changes to Utah’s HB257 — which would restrict trans people’s access to gender-specific spaces — are being made after opportunities for Utahns to speak for or against the bill have closed.

(Rick Egan | The Salt Lake Tribune) A group of protesters chant during a demonstration inside the Capitol in opposition to HB257, on Tuesday, Jan. 23, 2024.

Expecting lawsuits over legislation to exclude transgender people from gender-specific spaces in Utah, the proposal’s sponsor in the Utah Senate substituted the House-approved bill on Wednesday to reduce where those restrictions would apply.

After changing the legal definitions of “female” and “male” to exclude transgender people, the bill introduced by Morgan Republican Rep. Kera Birkeland would have barred them from entering sex-specific spaces, like restrooms and locker rooms, that affirm their gender identity.

But a substitute put forward by Riverton Republican Sen. Dan McCay would make those proposals only apply to government-owned and operated facilities, he said in a speech on the Senate floor Wednesday. The text of the substitute was made public around the same time.

“What I’ve learned from the abortion debate, and what I’ve learned from bills that I’ve been involved in the past that are lightning rods for legal purposes, you know, it is one thing to pass a bill — it’s entirely another thing for it to take effect,” McCay told reporters.

(Francisco Kjolseth | The Salt Lake Tribune) Sen. Daniel McCay, R-Riverton, speaks with the news media following oral arguments involving Utah’s abortion trigger law before the Utah Supreme Court in Salt Lake City, Tuesday, Aug. 8, 2023.

The substitute also removes the requirement that people use restrooms according to their sex assigned at birth, instead focusing on enhancing penalties for inappropriate behavior there. Those restrictions, however, remain in place for changing rooms — including locker rooms, dressing rooms and showers — and restrooms in public K-12 schools.

Changing a line from “publicly funded” to “publicly owned” removes concerns about its impact on sporting facilities, lawmakers say, as Utah bids to host the Olympics in 2034 and works to bring MLB and NHL franchises to the Beehive State. But it’s unclear the extent to which Salt Lake City International Airport will still be affected, because it is owned by city government.

After two Salt Lake City Council members shared their opposition to the bill during a Senate Business and Labor Committee hearing Monday, McCay said he and Birkeland are still “trying to deal with the Salt Lake concerns.”

Because the substitute comes after the two committee hearings on the bill — both of which had lengthy lines of Utahns who came to weigh in on the legislation, primarily speaking against it — the public will not have an opportunity to provide comment on the new substitute.

Previously, Birkeland’s bill applied the legal definitions of sex to gender-designated portions of domestic violence shelters and rape crisis centers.

After advocates raised questions about how it would affect federal funding, that portion was struck from the proposal Wednesday. Birkeland had previously voiced opposition to such a change after a Democratic representative proposed an amendment in a committee hearing.

(Trent Nelson | The Salt Lake Tribune) Rep. Kera Birkeland, R-Morgan, listens to public comment on her bill to narrow Utah's legal definitions of sex to exclude transgender people (HB 257) at a meeting of the House Business and Labor Committee at the Utah Capitol in Salt Lake City on Wednesday, Jan. 17, 2024.

Under the revised version of the bill, schools still would be required to work with parents of trans students who don’t feel comfortable using restrooms according to their sex assigned at birth to create a “privacy plan.” Not allowing trans students to use restrooms according to their gender identity is one of the remaining issues LGBTQ+ advocates have with the bill.

In previous committee hearings, trans teens spoke to lawmakers about their experiences of being bullied for their identity at school. They expressed worry that forcing trans students to use separate bathrooms would “out” other trans students — or make other students aware that they are trans without them expressly telling their peers.

McCay said they left that portion of the bill in place because some Utah school districts already enforce similar policies, adding, “We are still looking at that language.”

In a statement responding to the bill change, Equality Utah — the most visible LGBTQ+ advocacy organization at the Capitol — said it is grateful for the changes lawmakers made, but it thinks the restrictions would marginalize trans students and endanger their safety and privacy.

“We are grateful that lawmakers recognized the harm these types of restrictions could have in public settings; we only wish they would have afforded the same consideration to Utah school children,” the statement says.

(Rick Egan | The Salt Lake Tribune) A group of protesters chant during a demonstration inside the Capitol in opposition to HB257, on Tuesday, Jan. 23, 2024.

Will Utah be sued if the trans bill becomes law?

Some trans people would be allowed to enter gender-specific changing spaces in limited circumstances: if they have had both bottom surgery — a costly and invasive procedure — and amended their birth certificate, which is a legal impossibility for people born in some states.

When a reporter asked McCay about the constitutionality of “Sex-based Designations for Privacy, Anti-bullying and Women’s Opportunities,” or HB257, during media availability Tuesday, the sponsor said he expects it will face legal challenges, but that the judicial system will parse out what should remain on the books.

“There are always concerns about how a bill is drafted, about how it’s applied,” McCay said. “And I think when you look at this bill, it’s certainly a sensitive issue and I’m certain that we’ll see litigation aimed at this bill, and the courts will help us sort out what’s not and what is.”

An amendment Birkeland proposed Monday in the Senate Business and Labor Committee nodded at anticipated litigation. It changed the bill to protect individual government entities, including schools, against legal liability for “acting under color of state law.”

McCay said Wednesday that he and Birkeland had been aware of potential legal challenges and that he foresaw them as a lawyer.

“I feel like today we’re in a much better spot,” McCay said. “Is it going to be perfect? I don’t know, right? The courts will have to decide some of this if these things are challenged.”

If it passes with two-thirds of both the House and the Senate approving it, HB257 would be effective immediately after receiving Gov. Spencer Cox’s signature. Republicans hold supermajorities in both chamber, but it’s still unclear if changes to the bill may lose it some support among the more conservative members of the caucus.

“Every day, more and more Transgender and Nonbinary people find the language to describe their own experiences and are willing to live openly,” wrote Aaron Welcher, the spokesperson for Utah’s chapter of the American Civil Liberties Union, in a statement. “They are part of our communities and deserve freedom from constant political attacks.”

“With each challenge to the rights of Transgender Utahns — in healthcare, sports, identification, and now public spaces — we will use every means available, including legal action when necessary, to defend their civil rights and liberties from powerful policymakers infringing on these freedoms,” Welcher continued. “We see you. We support you.”

Lawsuits in other states

ACLU organizations in other states are suing over similar gender definition changes inspired by a “Women’s Bill of Rights” — which was written by the Independent Women’s Voices, a conservative organization focused on political issues related to women. The group opposes the Equal Rights Amendment and has pushed for restrictions on abortion.

In Kansas, the state’s ACLU chapter intervened on behalf of trans Kansans after its Republican attorney general interpreted the state’s law as prohibiting individuals from using gender markers on their licenses that don’t align with their assigned sex at birth. His lawsuit against the Division of Vehicles to try to stop it from making gender marker changes is ongoing.

Represented by ACLU Montana, five Montanans from a range of backgrounds filed a lawsuit in December alleging that new legal definitions of sex violate the state’s constitution.

Is the bill constitutional?

It’s also unclear how HB257 — in its previous and current state — would square with the Utah Constitution.

“We don’t have case law under the Utah Constitution to really guide us here,” the bill’s drafting attorney, Mike Curtis, told the House Business and Labor Committee. “So I can’t tell you that it’s unconstitutional, and I can’t tell you that it’s constitutional.”

Federal courts have reached different conclusions as to whether distinguishing people on the basis of their sex assigned at birth violates the U.S. Constitution, as well as on whether trans students can use restrooms according to their gender identity.

The U.S. Supreme Court has so far declined to clarify the answers to those questions. Most recently, it refused to take up a case out of Indiana in which a lower court ruled against a school district that had attempted to bar a transgender boy from using the boy’s restroom.