Ahead of the 2024 Utah Legislature set to convene Tuesday, at least two Republican lawmakers plan to run legislation to ban transgender people from accessing bathrooms and other facilities for the gender they identify with — but they’re taking different approaches.
Rep. Kera Birkeland, R-Morgan, is running a broad bill, HB257, which was made public Thursday. It would restrict transgender access in both men’s and women’s bathrooms, locker rooms and other types of private areas in publicly funded facilities, from city and county buildings to jails and prisons and more.
However, Birkeland’s bill also seeks to expand single-stall or unisex restroom and locker facilities by requiring government entities to provide a certain number of single-occupant facilities in newly built buildings, according to the bill. For existing buildings, the bill requires government entities to “study the feasibility of retrofitting or remodeling” to include single-stall, unisex facilities.
Birkeland said her bill isn’t meant to target transgender people, but it aims “to ensure that there’s privacy for all Utahns.”
“The goal is to make sure that there’s enough single-stall facilities so everyone has a place where they can be, (for) changing, using the restroom, showering and privacy,” Birkeland told Utah News Dispatch in a recent interview.
With a different, more narrow bill focused on public education facilities, HB253, Rep. Phil Lyman, R-Blanding — who is challenging Gov. Spencer Cox in this year’s gubernatorial election — is looking to restrict transgender access in both men’s and women’s bathrooms and locker rooms in public K-12 schools, colleges and universities. He isn’t focused on expanding unisex spaces or finding solutions for transgender individuals.
Lyman said his bill “basically says that genders have to stay in the bathroom or locker room of the gender that they were at birth” or find an existing unisex facility.
He said his bill will “define what is a boy and what is a girl,” and that “if they have the genitalia that produces sperm, they’re a boy, eggs they’re a girl. Ultimately it gets down to the chromosomes if it’s challenged.”
“If you’re a boy, don’t go in the girl’s bathroom. You know, go find a tree, I don’t know. Or find a unisex bathroom,” Lyman said.
Lyman argued most places already have unisex bathrooms. If there’s not one available, “Then they’ve got a problem. They’re going to have to deal with that. Society doesn’t have to accommodate a dude that wants to use a bathroom next to a little girl. They do not have to accommodate him.”
Officials at Equality Utah, Utah’s largest LGBTQ+ civil rights organization, are bracing for both bills and potentially any others that might surface during the 2024 Utah Legislature. They expect another year of bans they say could discriminate against transgender individuals and leave the community feeling singled out, attacked and restricted from society.
“This lands really hard for trans people in Utah. It probably feels very much like there’s this constant onslaught of negative legislation which makes it increasingly difficult to live their lives authentically,” said Marina Lowe, policy director for Equality Utah.
Sue Robbins, an intersex and transgender woman who works with Equality Utah, said 2024 will mark the fourth year of the Legislature focusing on anti-transgender bills.
“From our viewpoint, they’re all harmful to us. They take away from rights and access that we had before,” she said.
Lyman’s comment that transgender people should “go find a tree” or figure out their own access to unisex facilities, even if there might not be one readily available, is “dehumanizing. And that is not anything anyone in Utah would back from my experiences and knowledge of Utah.”
“People in Utah care about others and just want to do what’s right,” she said. “Our gap with the transgender community is how many people understand the transgender community.”
While Equality Utah has been working with Birkeland on her bill, Lowe said as of Thursday they hadn’t heard anything from Lyman about his legislation.
Powerful leaders at the helm of both Utah’s legislative bodies — House Speaker Mike Schultz, R-Hooper, and Senate President Stuart Adams, R-Layton — have applauded Birkeland’s bill and support her efforts, while Lyman said he’s not seeking a stamp of approval from them.
As of Thursday, Lyman said he’s “still trying to determine the overlap and possible combination” with Birkeland’s bill.
It’s possible that both bills could evolve throughout the duration of the Legislature’s 45-day session, which will conclude on March 1 by midnight.
Rep. Kera Birkeland’s bill
Birkeland’s legislation, HB257, would define in Utah law that “female” means “the characteristic of an individual whose biological reproductive system is of the general type that functions to produce ova.” It would also define “male” as “the characteristic of an individual whose biological reproductive system is of the general type that functions to fertilize the ova of a female.”
Birkeland said she “conceptualized” her bill from other states’ “Women’s Bill of Rights” bills, which have defined biological male and female in law and banned transgender people from using facilities they identify with, but she said those bills “didn’t ever sit right with me because they didn’t do anything that helped women secure their rights.”
For example, Birkeland said “we have a lot of girls” in high school athletics that “have to play their soccer games at the junior high, but the boys get to play their soccer games at the high school.” She said women and girls haven’t been given the same opportunities or access to as high-quality facilities as men and boys.
“So I wanted to draft a bill that first and foremost made sure that we did provide opportunities for women … so under the bill we will make sure there is no discrimination on the basis of sex,” Birkeland said.
Her bill would codify in state law measures based on Title IX, a 1972 federal law banning gender discrimination in school programs such as sports, to ensure “fair and equal access to facilities, equipment and practice times, and all those things,” Birkeland said, for both men and women.
She said “it’s great the federal government” passed Title IX, “but we don’t actually follow it in most parts of America.” She pointed to the NCAA apologizing in 2021 after providing women’s basketball players with inferior training facilities compared to men’s during Division 1 tournaments. Birkeland said her bill will also create a position in the Utah Attorney General’s office to investigate “and work through some of these issues.”
Though Birkeland said her bill is focused on ensuring equal opportunity, Robbins from Equality Utah said it doesn’t give transgender individuals the same opportunities. She noted other “Women’s Bill of Rights” bills “define transgender women out of being women.”
While Birkeland’s bill seeks to expand unisex facilities, Robbins said that sentiment is missing the point, which is transgender men and women want to access the facilities and communities they identify with.
“If you take a transgender woman and say, ‘Well you just have to use the gender-neutral bathroom, then you’re doing a separate but not equal type of effort,” Robbins said.
Robbins also questioned where the legislation leaves intersex individuals, or those born with a combination of male and female biological traits.
Birkeland, however, said she isn’t trying to criminalize transgender individuals, but rather close a “loophole” that she said actual “predators” can use. She said even though someone might not identify as transgender, they could claim that in order to access a bathroom or other private areas, and she wants to close that so-called “loophole.”
Lowe said she continues to question the practicality of enforcing Birkeland’s bill — something to which she said she has yet to get a “satisfactory answer.”
“The lawyer in me really struggles to understand how we wouldn’t be putting facilities in a really tenuous legal position by asking them to enforce bills that would either require some sort of intrusion of privacy or would encourage vigilante enforcement or would in some way encourage the opposite of what I think people are concerned about,” Lowe said.
For example, she said if a 17-year-old transgender male is required under state law to use a women’s bathroom, “to me that is extremely problematic and would raise real concerns. Unfortunately this type of legislation is going to create those types of scenarios,” she said.
Birkeland said the intent of the bill is to enforce restrictions on people who “cause alarm,” and not necessarily those who access facilities without causing a stir. Those who are found in violation under the bill could be charged with crimes of voyeurism and criminal trespass.
“There’s going to be a lot of people every day who probably go into a restroom and don’t realize that there might be someone that is different from them in some capacity using that restroom too,” Birkeland said. “But did they cause you an alarm? Did they do anything inappropriate? If not, I think the majority of Utahns aren’t concerned about that.”
Birkeland said the bill doesn’t intend to require that “we’re going to be checking everybody at the door.” Rather, “it will ensure those who are using these facilities for an improper purpose will be held accountable so that the transgender community no longer has to take the backlash of improper use of people using this pretext for predatory reasons.”
There aren’t widespread reports of misuse of bathroom facilities, but Birkeland pointed to some instances when a Salt Lake County resident asserted she had been confronted by “biological males” twice in women’s locker rooms at the Northwest Recreation Center in Salt Lake City, according to The Salt Lake Tribune.
A Republican council member pushed for a policy to require transgender patrons at the county’s pools and rec centers to use either the locker rooms of the gender assigned to them at birth or private family changing rooms, but that proposal was shelved last month.
As for concerns about vigilantes, Birkeland said there’s also a provision of the bill that could charge people with a misdemeanor if they’re found to be repeatedly making false accusations.
Rep. Phil Lyman’s bill
Lyman’s legislation, HB253, was also released Thursday. It would define “female” as “a person belonging, at birth, to the biological sex which has the specific reproductive role of producing eggs” and “male” as “a person belonging, at birth, to the biological sex which has the specific reproductive role of producing sperm.”
Lyman’s bill would only apply to public schools or universities, but it doesn’t seek to expand unisex or single-stall facilities like Birkeland’s would.
It would also allow a school or a university’s law enforcement agency to cite someone who “improperly enters and refuses to depart” a facility they’ve been restricted from. They could be charged with a criminal trespassing penalty, according to the bill.
His bill would also allow universities found to have “willfully violated” the law to be fined up to $10,000 per violation.
“Utah has got to have a law that says boys use the boys’ bathroom and girls use the girls’ bathroom,” he said. “Anyone that wants to argue that that’s bad to have on the books is arguing against, you know, logic and society.”
Lyman said his bill is based on what he called the “truth” that “there are two genders.”
In response to the argument that the world is not as simple as men versus women and that biological sex does not encompass gender and gender identity, Lyman said, “it’s incumbent on the person who needs to use the bathroom to make sure that they are not infringing on someone else’s right to consent to that.”
“If I’m a woman and I do not want to be in a locker room with a dude flashing his junk around, I believe that they should have that right. And it should be incumbent on the dude with the junk to find a place to dress,” Lyman said. “He might say, ‘I don’t feel comfortable in the boys’ bathroom.’ Well, sorry, you’re not a girl. And that’s really offensive, I get it, but those girls have rights too.”
Lyman said he has “sympathy” for “someone who has gender dysphoria,” but someone who is trying to “inflict their ideology on someone else in a bathroom, I have no sympathy for them. Take your political ideology and go somewhere else.”
House Minority Leader Angela Romero, D-Salt Lake City, recently told Utah News Dispatch that the Utah Legislature’s continued focus on restricting transgender individuals has had a harmful impact on members of that community.
“It feels like we’re trying to erase people and who they are and pretend like they don’t exist,” Romero said. “It goes against all that we stand for as Utahns when we talk about freedoms.”
To arguments that it feels like Utah lawmakers are trying to “erase” transgender people from society, Lyman said, “Well, they’re trying to erase gender, period.”
“I think the vast majority of Americans are so tired of the transgender B.S.,” Lyman said. He said they want a society that simply says, “boys use boy’s bathrooms, girls use girls’ bathrooms, or at least don’t use the other.”
Robbins called Lyman’s comments “inflammatory and trying to rile up a base” while he’s running a campaign for governor.
That approach is “not a productive way for us to be able to have a conversation that can result in an outcome that everybody can agree to,” Robbins said. “AKA, the Utah Way.”
Lyman said his focus on transgender access in bathrooms and locker rooms is not a political move, but one that Utahns care about.
“I run controversial bills every year, and this one is central to society,” he said. “I’m running it because it’s what society cares about.”
He called it a “cultural question” that Americans and Utahns are confronting. “Politics is downstream from culture, so if we have a culture that says, ‘there is no difference, you cannot give anybody a gender,’ that is really detrimental to society. … There’s nothing more basic than genders in a society.”
While legislative leaders — who have the power to prioritize which bills get considered during the session — have given early support to Birkeland’s efforts, Lyman said he’s not seeking their approval for his bill.
“I don’t go through all the hoops of getting approval from leadership,” he said. “They’re supposed to serve us, not the other way around.”
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Utah News Dispatch is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Utah News Dispatch maintains editorial independence. Contact Editor McKenzie Romero for questions: [email protected]. Follow Utah News Dispatch on Facebook and Twitter.