With Utah Legislature’s approval, trans bathroom ban now heads to Gov. Cox’s desk

The legislation would prevent transgender people from using bathrooms that align with their gender identity in government owned and controlled buildings.

A bill that will bar transgender Utahns from using bathrooms and locker rooms in government buildings, including public schools, will be sent to the governor’s desk after lawmakers gave their final approval Friday. Gov. Spencer Cox’s office has so far not responded to multiple inquiries as to whether he will sign the bill.

Two weeks after the language for Morgan Republican Rep. Kera Birkeland’s HB257, “Sex-based Designations for Privacy, Anti-bullying and Women’s Opportunities” became public, the Senate made two back-and-forth major changes and passed the bill 21-8 during floor time Thursday morning.

On Friday, the House initially refused to concur with the version of the bill passed in the Senate, leading lawmakers to meet in a conference committee at noon Friday to find a compromise.

“There were just some technical errors that were made,” Birkeland told the House in asking to reject the changes, saying more amendments “will help add clarity to an already complex, nuanced bill.”

Senate sponsor Dan McCay, a Riverton Republican, proposed changes in the conference committee, which he characterized as making the bill “extremely clear.”

“The biggest change, honestly, is just we never want any child to be given a criminal record for simply just being in the wrong bathroom, for whatever reason,” Birkeland said during the conference committee. “We don’t believe the bill actually says that they would be right now. But we just wanted to make it absolutely crystal clear so that nothing can go in that direction.”

(Rick Egan | The Salt Lake Tribune) Sen. Daniel McCay, left, R-Riverton, speaks with Rep. Kera Birkeland, R-Morgan, on changes to HB 257 during a conference committee at the Capitol on Friday, Jan. 26, 2024.

The Senate and House approved changes made Friday, with many of the same lawmakers who opposed the bill earlier in the process voting against it.

“These are issues we raised and asked legislators to amend,” LGBTQ+ advocacy organization Equality Utah said in a statement after the votes. “We are grateful for their responsiveness,”

It continued, “We still hold the position that transgender Americans have the freedom and liberty to access facilities within public spaces. We are sorry for the fear and distress that many within the community are experiencing as they read these bills.”

The bill would change the state’s legal definitions of “female” and “male” to categorize Utahns by the reproductive organs they were born with. It defines a “women’s bathroom” and “men’s bathroom” each as spaces only “designated for the exclusive use” of females and males, respectively.

The bill bars trans people from using “changing rooms” — locker rooms, showers and dressing rooms — that align with their gender identity in government-owned and controlled facilities. That prohibition would also extend to public schools. Some trans adults would be allowed to enter gender-specific 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.

This is the third year in a row Utah has passed restrictions on the trans community.

Cox seemed to speak positively about portions of the bill during his State of the State speech, saying the Legislature has a chance this session to “[provide] more opportunities for women and girls.”

Last year, he signed a ban on gender-affirming care for transgender youth on the second Saturday of the session. However, he vetoed another bill introduced by Birkeland in 2022 that prohibited trans girls from participating in school sports programs that align with their gender identity. The Legislature overrode the veto, and the law is tangled up in court.

The Senate sponsor of the bill told reporters Wednesday that he and the House sponsor have had little dialogue with the governor’s office in crafting the legislation.

“We have been communicating with the governor’s office and he has not expressed any major concerns thus far with the bill,” McCay said during a news conference Friday. “But, you know, the governor has his process and I think we’ll look forward to seeing what he does. And I’m fairly confident that we’ve gotten the policy to where it needs to be for the state. And I’m hopeful that the governor also sees it that way.”

House Speaker Mike Schultz said Friday morning that the governor’s office has gotten involved in the process and that they have had “hourly” conversations.

(Rick Egan | The Salt Lake Tribune) House Speaker Mike Schultz, R-Hooper, answers questions during media availability at the Capitol on Friday, Jan. 26, 2024.

Under the Utah Constitution, the governor has 10 days to decide on whether or not to sign a bill. Absent a decision, the bill automatically becomes law.

As similar policies in other states have, HB257 could see legal challenges, allowing the courts to decide which parts of the bill are — and aren’t — constitutional.

”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 [constitutional],” McCay said Wednesday.

He told reporters later that he believes changes to the bill reduces the likelihood of litigation.

A spokesperson for the Utah chapter of the American Civil Liberties Union said in a statement to The Salt Lake Tribune on Wednesday that under the restrictions in the bill, “We will use every means available, including legal action when necessary, to defend [trans Utahns’] civil rights and liberties from powerful policymakers infringing on these freedoms.”