Paul C. Burke and John W. Mackay: Take Pride and defend the Utah Way

Legislature’s ban on transgender girls in school sports will not help Utah move forward.

(Francisco Kjolseth | The Salt Lake Tribune) As the rain fell, East High school students gather outside of school for walkout on Friday, April 15, 2022, to protest HB11, which bans transgender girls from participating in female school sports.

Pride Month has arrived in Utah less than three months after extreme elements in our state forced a lapse in legislative courage in the defense of the “Utah Way.”

The recent enactment of a law banning transgender female students from participating in high school athletics harkens back to a shameful era in our state’s history. In the 1990s, the advances of the gay rights movement unleashed moral panic and backlash in Utah. Year after year, the Utah Legislature pursued an anti-gay agenda.

The result was a system of discrimination that haunted gay Utahns from cradle to beyond the grave. These cruel and unconstitutional laws denied LGBTQ Utahns the right to build their own families, a perverse irony in a state that has always prized family life.

The eventual invalidation and dismantlement of this legal system of inequality was made possible by decisions of the U.S. Supreme Court and the emergence of the Utah Way. As Sen. Mitt Romney and other leaders have explained, the Utah Way relies on people of good faith to come together, respect each other’s rights and seek honorable compromises to resolve areas of disagreement.

The Utah Way brought peace and compromise after a generation of cultural conflict had marred the reputation of our state as well as its most prominent religious institution. Collectively, the signature achievement was the passage in 2015 of employment and housing non-discrimination laws that also bolstered protections for religious liberty.

During the last two years, legislators labored with Equality Utah, the Utah High School Activities Association, and other stakeholders to apply “The Utah Way” to transgender participation in high school athletics. The goal had been to balance the values of inclusion and participation with fairness for all in scholastic competitions.

However, that effort to follow “The Utah Way” was abandoned and betrayed in March by legislators who feared electoral consequences for resisting an extreme viewpoint. On the eve of the Republican nominating process, Utah’s governing party scuttled these good-faith negotiations and instead passed a blanket ban on the participation of transgender high schoolers in female athletics.

This ban was vetoed by Gov. Spencer Cox and opposed by prominent voices from the business community, including from Silicon Slopes. Both The Salt Lake Tribune and Deseret News also editorialized against the ban.

Under the headline “Utah’s transgender athlete bill does not live up to the ‘Utah Way,’ the Deseret News condemned the bill as “ill-conceived” and “a poster child for bad legislation.”

The Tribune described the ban as a “tribute to the [Republican] party’s extreme right,” which “sacrific[ed] the hopes of a small minority of human beings on the altar of political showmanship.”

The Utah Jazz opposed the transgender bill, and one of the team’s owners, Dwayne Wade, is the proud father of a transgender teenager.

Utah’s Silicon Slopes is the envy of other states. But as one Silicon Slopes CEO lamented last year to legislative leaders, “When you do the transgender bill? Makes my job really flippin’ hard to do.”

With the honorable exception of every Democrat as well as Republican State Sens. Daniel Thatcher and Todd Weiler and Reps. Robert Spendlove and Mike Winder, the Legislature nevertheless voted to override the governor’s veto.

The transgender ban will likely be struck down by the courts in a case filed days ago by two retired members of the Utah Supreme Court, former Chief Justice Christine Durham and former Justice Deno Himonas.

The Utah Way must now be restored and safeguarded to bridge divides and protect us from extremism. We should resist calls to ban inclusive books, unduly restrict the free speech of professional educators, or undermine the Constitutional guarantees that protect the lives and families of LGBTQ Utahns.

The mutual concern, values, and hard-working dialogue underpinning the Utah Way have added vibrance to our state. Detours from that commitment endanger both the legal rights of LGBTQ citizens and also the political, economic, and moral health of our state.

It is our hope that the recent legislative setback will prove to be an aberration. The survival of the Utah Way now depends on Utahns – as friends and neighbors – coming together to take pride and defend the Utah Way.

Paul C. Burke

John Mackay

Attorneys Paul C. Burke and John W. Mackay of Ray Quinney & Nebeker have represented both the Utah Pride Center and Equality Utah.