Ban of transgender people from Utah’s public bathrooms passes Senate

UPDATE: Utah Legislature passes transgender bathroom ban, now heads to Gov. Cox’s desk

Transgender Utahns would no longer be able to use the bathroom of their gender identity in Utah’s government-owned and operated buildings under a bill that passed out of the Utah Senate on Thursday. The legislation, which went through major back-and-forth changes this week, is expected to be approved by the House on Friday morning.

Under a third version of Morgan Republican Rep. Kera Birkeland’s HB257, “Sex-based Designations for Privacy, Anti-bullying and Women’s Opportunities,” made public just before noon Thursday, the bill changes 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 also 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. 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.

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The current iteration of the bill focuses criminal penalties on behavior of people who fit the legal definition of the opposite sex in those spaces, rather than on trans people merely using those spaces.

The second overhaul of the bill comes after the conclusion of 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 did not have an opportunity to provide comment on Thursday’s final iteration of the bill.

Senators passed the bill 21-8 during floor time Thursday morning. Two Republicans — Sens. Daniel Thatcher and Todd Weiler joined all Democrats in the chamber to vote against it. The House met Thursday afternoon to place the bill on its concurrence calendar, and it will likely see a vote as one of the first orders of business when the body meets Friday at 11 a.m.

The changes McCay made Thursday “all” came through conversations with the House sponsor and her colleagues, he told reporters.

When the senator presented the bill on the floor, McCay listed off about a dozen incidents across the country of men attacking women in restrooms.

“These are real incidences, with real issues related to the wrong gender in the wrong bathroom,” McCay said. “I have four daughters. I’m done with it.”

His Republican colleague, West Valley City Sen. Daniel Thatcher, was chastised by Senate President Stuart Adams after asking whether any of the perpetrators in those incidents were transgender.

“The news stories did not mention whether or not they were trans,” McCay replied. “They just said that it was a male or female.”

Adams shook his head at Thatcher, who is leaving his post to run for Salt Lake County Council, who questioned whether the bill’s provisions violated the 14th Amendment’s equal protection clause.

“This effort to protect women should not be something that we take a knee on,” McCay, an attorney, said. “I feel very strongly and passionately that this is the case and I feel like we need to do all we can within the law, and maybe even push the bounds of the law.”

The governor has not responded to multiple inquiries on whether he will sign the bill. Last year, he signed a ban on gender-affirming care for transgender young on the second Saturday of the session.

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

Much of the bill would become effective immediately after the governor signs it. If he vetoes the bill, it would take effect after a potential override by the Legislature. Portions pertaining to government entities’ responsibility to enforce the bill would become effective in May.

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

This is the third year in a row the Senate has passed legislation targeting the state’s trans community.

In 2022, lawmakers passed a law to keep trans girls from participating in school sports that align with their gender identity. The law is currently on hold while it is challenged in state court. Last year, the Legislature voted to prohibit transgender youth from accessing gender-affirming health care.

Will last-minute changes avoid a lawsuit?

While it has been with the Senate, HB257 has undergone significant changes. A substitute made public Wednesday by Riverton Republican Sen. Dan McCay, the Senate sponsor of the bill, initially loosened proposed restrictions in an effort to dodge legal challenges and a potential federal withdrawal of funds from Utah’s domestic violence shelters and rape crisis centers.

“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 Wednesday.

During a news conference after Thursday’s vote, the senator said he doesn’t believe reinserting restrictions on restrooms changes the likelihood of the state being sued over the law.

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.”

HB257 also strengthens Title IX protections in athletics, requiring schools to treat men’s and women’s programs equally. Those measures may not benefit trans athletes, however, if courts allow the 2022 restrictions to go into effect.

Democratic Sen. Jen Plumb, a doctor from Salt Lake City with a transgender child, told her fellow senators that she would not use the restroom until she went home Thursday to see what it feels like to be a trans student who avoids using the restroom because they can’t access a space that affirms their identity.

“I feel a bit like I’ve failed,” she said. “I feel like I’ve failed my child. I feel like I have failed other children. And I feel like I’ve somehow failed to ensure that we’ve separated out the perverts and pedophiles and disgusting folks who do things to our kiddos, many of which I see as victims in the ER, are not the same as our trans community.”

Plumb unsuccessfully tried to amend the bill to allow trans students to use restrooms according to their gender identity. She has also proposed an alternative bill that would prohibit schools from forcing any student to undress in front of others, which sits with the Senate Education Committee.

At a news conference following the Senate’s vote, Democratic legislators were dressed in black and visibly emotional about the HB257 vote and one on another bill that would roll back diversity, equity and inclusion measures throughout state institutions. Democratic leadership said they are asking Cox to veto the bill.

“These bills are only going to put us backwards,” Senate Minority Leader Luz Escamilla said, adding, “the impact to our children, specifically, sending the wrong message they don’t belong in the state of Utah.”

“We’re hurting,” House Minority Leader Angela Romero said through tears about her caucus to The Tribune. “And it’s really hard to come day and day and day and see our communities attacked.”