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Why Gov. Cox is worried about Utah’s transgender sports bill bankrupting the state’s high school activities association

A special session is scheduled to deal with Legislature’s expected veto override of HB11

(Trent Nelson | The Salt Lake Tribune) Dave Spatafore holds up the UHSAA's policy on transgender athletes, with Rep. Kera Birkeland, R-Morgan, at a meeting of the Health and Human Services Interim Committee at the State Capitol in Salt Lake City on Wednesday, June 16, 2021. Transgender treatment for minors and participation by transgender youth in school sports were the topics of discussion.

The Utah High School Activities Association (UHSAA) is preparing for the chaotic aftermath of House Bill 11′s passage.

The Utah legislature is expected to override Gov. Spencer Cox’s veto of the bill — which bans transgender girls from participating in girls’ sports at public schools — on Friday. UHSAA, meanwhile, is anticipating lawsuits and a series of new rules.

“We’re not sure how this is going to impact us moving forward,” said David Spatafore, a legislative adviser and spokesman for UHSAA said. “We are now making preparations to do any number of things for our students.”

HB11 has increasingly become a political cudgel. The bill, after last-second political maneuvering, would act as an all-out athletics ban on students who have transitioned from male to female and wish to participate in girls sports. According to a UHSAA spokesperson, there is currently only one student in the state of Utah this applies to.

The governor vetoed the bill, calling it “fundamentally flawed.” But the legislature has the votes to override the veto and pass the bill. If that happens as expected Friday, officials anticipate a special session will be called.

In the meantime, UHSAA’s policies and financial solvency are hanging in the balance. UHSAA is a private governing body that presides over public school athletics in Utah. Thus, if there is any lawsuit over the bill, UHSAA would be named.

The organization is not in a strong position to go through the financial burdens of a lawsuit. It just finished fighting a years-long legal battle over females playing football. And COVID-19 has cut into some of the funds. The majority of its revenue comes from putting on postseason tournaments, which were cut short during the coronavirus.

“[The UHSAA] runs the real risk of insolvency and bankruptcy, putting our entire state athletics program in danger,” Cox wrote in a letter, explaining his objections to the law.

There are ways in which UHSAA can be protected financially from an inevitable lawsuit. The legislature can give what is called indemnification to UHSAA, meaning compensation for any expenses from a lawsuit. However, UHSAA will not know whether it will have financial cover until the special session.

Cox has argued for indemnification, as has Speaker of the House Brad Wilson.

“I hope you can agree that if we want to protect women’s sports, bankrupting the institution that is responsible for their participation is a bad place to start,” Cox wrote.

The other aspect in question is how the policies will change once the bill passes on Friday.

This bill only applies to public schools. Private schools will be subject to the standing policies currently governing transgender athletes in Utah, written by UHSAA.

Those policies state that any athlete transitioning from female to male can participate in sports corresponding with their gender identities immediately. Those athletes transitioning from male to female have to wait 12 months, while they are on hormone treatment, before they can participate.

For public schools now, there is a gray area as to the new rules. If there is no lawsuit, the ban will go into effect as it stands on July 1.

If there are lawsuits, it would trigger what is called a “commission” to evaluate which transgender athletes are allowed to play female sports. This is a temporary measure while the legality of the bill is being evaluated. This commission, with experts appointed by the governor, would take it on a case-by-case basis. They will evaluate things like wingspan, weight and height.

“A public school athlete [transitioning from male to female] would have to go to the commission,” Spatafore said. “Any student in a private school who is transitioning doesn’t go through the commission, but goes through our policy. So we are making plans for any and all of those alternatives.”

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