There has been a whole lot of anti-transgender bills going through the legislature of various states. These types of bills all have one thing in common: their entire purpose is to harm people who are transgender.
Utah Governor Spencer Cox (Republican) refused to sign an anti-transgender bill that, if passed, would have prevented girls who are transgender from participating in girls K-12 sports. This is good news for not only transgender girls, but also their families. The Governor also signaled he would veto a bill that would prevent young transgender people from accessing appropriate medical care.
Utah House Bill 302 was sponsored by Representative Kera Birkeland (Republican). The floor sponsor for this bill was Senator Curtis S. Bramble (Republican). Cosponsors included: Cheryl K. Acton, Melisa G. Ballard, Jefferson S. Burton, Steve R. Christiansen, Michael L. Kohler, Karianne Lisonbee, Steven J. Lund, Phil Lyman, Michael J. Peterson, Candice B. Pierucci, Susan Pulsipher, Adam Robertson, Jeffery D. Stenquist, Mark A. Strong, Jordan D. Teuscher, Norman K. Thurston, Christine F. Watkins, and Ryan D. Wilcox.
House Bill 302 was first read in the House on February 3, 2021. The bill was titled: “Preserving Sports for Female Students”. The general description of the bill said: This bill addresses participation in athletic activities reserved for female students in public education.
Right away, its clear that this is an anti-trans bill. The sponsors and co-sponsors of this bill have made the incorrect assumption that girls who are transgender are actually boys. This is discrimination against some students specifically because of their gender.
The Biden-Harris administration issued an executive order on January 20, 2021, titled: “Executive Order on Preventing and Combating Discrimination on the Basis of Gender or Sexual Orientation“. The purpose of the executive order is to ensure that people who are LGBTQA+ do not face discrimination based on who they are.
The executive order gets its validity from two significant lawsuits. One is Bostock v. Clayton County, Georgia, in which Supreme Court Justice Neil Gorsuch ruled that an employer who fires an individual for being gay or transgender violates Title VII. In short, Title VII “makes it unlawful… for an employer to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual… because of such individual’s race, color, religion, sex or national origin.”
The executive order also gets its validity from Grimm v. Gloucester County School Board. In short, the School Board at first allowed Gavin Grimm, a transgender boy, to use the boy’s bathroom – but then changed their policy after facing intense backlash from parents.
The case was heard in the United States Court of Appeals for the Fourth Circuit. The opinion of the court was written by Circuit Judge Floyd, who stated: “At the heart of this appeal is whether equal protection and Title IX can protect transgender students from school bathroom policies that prohibit them from affirming their gender. We join a growing consensus of courts holding that the answer is a resounding yes…”
The outcome of this case confirmed that Title IX can protect transgender students from school bathroom policies. If Title IX can do that (which the court said it can) then Title IX can also prevent schools from prohibiting transgender students from playing on the sports team that matches their gender identity.
Psychology Today provides a clear answer about gender in a post titled: “How Many Genders Are There?”
A person’s gender refers to characteristics that relate to the categories male, female, or some combination thereof. The words “gender” and “sex” are sometimes confused, but a persons sex refers to biological characteristics determined at conception or in utero; a person’s gender is understood by many researchers to be influenced by a range of societal and environmental factors as well as biological factors. A person can be biologically female and experience gender dysphoria or gender incongruence, because they do not identify with their assigned sex.
A person might identify as transgender has a gender identity that does not correspond to their biological sex. The term “cisgender” refers to a gender identity that corresponds to one’s biological sex. People whose gender identity feels neither masculine nor feminine, may identify as non-binary…
All of this is to say that it is incorrect to presume that a person is a specific gender based on either the person’s genitals or the gender that they were assigned at birth. Employers who discriminate against people who are LGBTQA+ because of their gender are breaking Title VII. Schools who discriminate against students because of their gender are breaking Title IX.
Both of those actions are entirely illegal, not only because of the court decisions, but also because of the executive order from President Biden.
Merriam-Webster describes the Supremacy Clause this way: a clause in Article VI of the U.S. Constitution declares the constitution, laws, and treaties of the federal government to be supreme law of the land to which judges in every state are bound regardless of state law to the contrary.
The Free Legal Dictionary says that preemption is a doctrine based on the Supremacy Clause of the U.S. Constitution that holds that certain matters are of such a national, as opposed to local, character that federal laws preempt or take precedence over state laws. As such, a state may not pass a law inconsistent with the federal laws.
In summary, it is good that Utah’s discriminatory House Bill 302 did not get signed into state law. Doing so would have resulted in legal action against Utah and caused harm to transgender students.
Here are some pieces of Utah’s House Bill 302
General Description: This bill addresses participation in athletic activities reserved for female students in public education.
Highlighted Provisions: This bill:
defines terms;
requires schools and local education agencies to designate athletic activities by sex;
prohibits a student of the male sex from participating in an athletic activity designated for female students;
prohibits certain complaints or investigations based on a school or local education agency maintaining separate athletic activities for female students;
provides severability clauses;
I want to pause here for a moment to clarify that this part of the bill is illegal because it chooses to discriminate against transgender girls by prohibiting them from participating in a girl’s sports team. The bill has nothing to say about transgender boys playing on the boy’s sports team. This is discrimination against trans girls because of their gender. Therefore, it breaks Title IX.
The “provides severability clauses” part is significant. This language is placed in bills that the writer, sponsor, and cosponsors know is not legal and/or that it will cause controversy. The severability clause is there in case the state has to defend the bad bill in court. The purpose of the severability clause is to remove a portion of the bill that a court told them to – without having to throw out the rest of the bill.
Other parts of the bill also are discriminatory against transgender girls, but use more words to get there:
A public school or LEA, or a private school that competes against a public school or LEA shall expressly designate school athletic activities as one of the following, based on sex: “male” or “boys”; “female” or “girls”, or “coed” or “mixed”.
A student of the male sex may not participate, and a public school or LEA may not allow a student of the male sex to participate, in a school athletic activity designated as “female” or “girls”; and
A government entity or licensing accrediting organization may not entertain a complaint, open an investigation, or take any other adverse action against a school or LEA described in Subsection (1) for maintaining separate school athletic activities for students of the female sex.
To summarize, the bill is written in a way that presumes that gender and sex are synonyms. That’s incorrect. This part of the bill is discriminatory because it is prohibiting transgender girls from participating in a girl’s sports team, while allowing cisgender girls to participate on a girl’s sports team. It does not, however, prevent transgender boys from playing on a boy’s sports team. This is discrimination, because it breaks Title IX.
The writers of this bill (and its sponsor and cosponsors) are incorrectly identifying transgender girls as boys. This is discrimination – and just plain mean. It is also illegal, because the Courts ruling on the Grimm v. Gloucester County School Board case sets a precedent that clearly states that Title IX allows transgender students to use the bathroom that matches their gender. As such, Title IX also protects transgender girls from being prohibited from playing on the girl’s sports team.
In addition, the bill claims that “a government entity or licensing accrediting organization” can’t make a complaint, open an investigation, or otherwise hold a school that discriminates against transgender students accountable for their bad (and illegal) actions. This is the writers, sponsors, and cosponsors attempt to absolve themselves from having to face the consequences of their harmful words and actions.
On February 17, 2021, House Bill 302 “Preserving Sports for Female Students” was voted on. The vote was 50 Yeas and 23 Nays (and two Representatives not voting).
Here is who voted YEA:
- Nelson T. Abbott (R)
- Carl R. Albrecht (R)
- Cheryl K. Acton (R)
- Melissa G. Ballard (R)
- Stewart E. Barlow (R)
- Kera Birkeland (R)
- Brady Brammer (R)
- Walt Brooks (R)
- Jefferson S. Burton (R)
- Scott H. Chew (R)
- Steve R. Christiansen (R)
- Kay J. Christofferson (R)
- Joel Ferry (R)
- Francis D. Gibson (R)
- Matthew Gwynn (R)
- Stephen G. Handy (R)
- Timothy D. Hawkes (R)
- Dan N. Johnson (R)
- Marsha Judkins (R)
- Mike L. Kohler (R)
- Bradley G. Last (R)
- Karianne Lisonbee (R)
- Stephen J. Lund (R)
- Phil Lyman (R)
- A. Cory Maloy (R)
- Jefferson Moss (R)
- Calvin R. Musselman (R)
- Merrill F. Nelson (R)
- Michael J. Petersen (R)
- Val J. Petersen (R)
- Candice B. Pierucci (R)
- Susan Pulsipher (R)
- Paul Ray (R)
- Adam Robertson (R)
- Douglas V. Sagers (R)
- Mike Schultz (R)
- Travis M. Seegmiller (R)
- Rex P. Shipp (R)
- Casey Snider (R)
- Lowry V. Snow (R)
- Keven J. Stratton (R)
- Jeffrey D. Stenquist (R)
- Mark A. Strong (R)
- Jordan D. Teuscher (R)
- Norman K. Thurston (R)
- Christine F. Watkins (R)
- Steve Waldrip (R)
- Douglas R. Welton (R)
- Brad R. Wilson (R)
- Ryan D. Wilcox (R)
Here is who voted NAY:
- Gay Lynn Bennion (D)
- Joel K. Briscoe (D)
- Clare Collard (D)
- Jennifer Dailey-Provost (D)
- James A. Dunnigan (R)
- Craig Hall (R)
- Susanne Harrison (D)
- Sandra Hollins (D)
- Brian S. King (D)
- Karen Kwan (D)
- Rosemary T. Lesser (D)
- Ashlee Matthews (D)
- Kelly B. Miles (R)
- Carol Spackman Moss (D)
- Doug Owens (D)
- Stephanie Pitcher (D)
- Angela Romero (D)
- Robert M Spendlove (R)
- Andrew Stoddard (D)
- Raymond P. Ward (R)
- Elizabeth Weight (D)
- Mark A. Wheatley (D)
- Mike Winder (R)
Here is who did not vote:
- Steve Eliason (R)
- Jon Hawkins (R)
Why did Utah Governor Spencer Cox refuse to sign HB 302
On February 19, 2021, Deseret News posted an article titled: “Gov. Spencer Cox says he won’t sign transgender sports bill as now written”. It was written by Katie McKellar. From the article:
An at-times emotional Gov. Spencer Cox said Thursday he would not sign the current version of the bill making its way through the Utah Legislature to ban transgender girls from participating in girls K-12 sports.
“I’m not in a place yet where I’m comfortable with the bill as it stands right now,” Cox told reporters during his monthly news conference with PBS Utah Thursday morning. “Those discussions are ongoing. We still have a lot of work to do.”
Cox then paused and teared up.
“These kids are… they’re just trying to stay alive,” Cox said. “There’s a reason none of them are playing sports… I just think there’s a better way. And I hope that there will be enough grace in our state to find a better solution.”…
…”I apologize for getting a little emotional,” Cox told reporters Thursday. “When you spend time with these kids, it changes your heart in important ways, and so I want to try and improve that message and see if we can’t find a better way to work together.”…
…Cox’s comments come the day after the House voted to approve Rep. Kera Birkeland’s bill following heated debate. It now goes to the Senate for consideration…
…HB302 is adamantly opposed by groups including Equality Utah and Democrats, who argue it’s “needlessly (targeting) youth who are already marginalized and vulnerable to mental anguish and suicide.”
Cox also said he had “threatened to veto” another bill related to transgender issues: HB92 being sponsored by Rep. Rex Shipp R-Cedar City. Shipp’s bill would prohibit doctors from offering any gender reassignment treatment to minors.
The original version of that bill, Cox said, had “many, many flaws.” But he said the latest iteration of Shipp’s bill “is closer to what medical standards are now.”…
…Cox’s comments mean if HB302 has a chance of becoming Utah law, it needs changes unless he decides to allow it to become law without signing it. However, it’s possible the bill might run into some trouble in the Senate, where legislative leaders have hinted it could be altered…
According to KUER 90.1 (which appears to be part of the BBC), House Bill 302 – which would have banned transgender girls from competing on girls public school sports teams – passed the Utah house. A Senate committee killed the bill by declining to vote on the legislation. Governor Spencer Cox signaled he would veto the bill.
What Did HB92 Say?
HB0092 was introduced to on January 19, 2021. (It is also referred to as HB92). The summary of the bill was: “This bill prohibits a physician or surgeon from performing a transgender procedure on aminor [sic]”.
This bill was absolutely terrible. It not only restricted people who are transgender from receiving the medical care they need, but also prohibited doctors from providing certain types of care to people who are transgender.
The bill would make it unprofessional conduct to preform a medically unnecessary puberty inhibition procedure or a sex characteristic-altering procedure on a minor.
I cannot help but be aware of the similarities between this discriminatory anti-trans bill and the bills that conservative Republicans create (over and over again) that are intended to prevent people who have a uterus from receiving an abortion. In some cases, those bills also prevent access to contraception. Those types of bills include unnecessary medical procedures and time limitations that a person must endure to get an abortion.
HB92 is designed to prevent people who are transgender from accessing the medical care they need – care that conservative Republicans deem “unnecessary”. Put all that together, and it is abundantly clear that the real purpose of these types of bills is to exert control over marginalized people’s bodies and to take away their bodily autonomy. Both types of bills are also used to attack doctors by making them risk their licenses if they dare to provide appropriate medical care to patients.
The majority of this bill is hurtful just to read. I’m going to summarize it here. Skip over this part if you need to.
Definitions:
“Ablative procedure” means a procedure that is expected to excise, vaporize, disintegrate, or remove living tissue, including the use of carbon dioxide lasers and erbium: YAG lasers, and excluding hair removal.
In short, this part of the bill would prevent a transgender man from getting what is often referred to as “top surgery”. It would prevent transgender people from having surgery that would change their genitalia. I want to be clear about this – not all people who are transgender want to have those types of surgery. This part of the bill harms those who do want to have surgery. Also, to be clear, not all people who are transgender want to have these types of surgery – and that’s completely valid.
The next part of the bill attacks physicians.
“ACGME” means the Accreditation Council for Graduate Medical Education of the American Medical Association.
“Administrative penalty” means a monetary fine or citation imposed by the division for acts or omissions determined to constitute unprofessional or unlawful conduct, in accordance with a fine schedule established by the division in collaboration with the board, as a result of an adjudication proceeding conducted in accordance with 63G, Chapter 4, Administrative Procedures Act.
“Associate physician” means an individual licensed under 58-67-302.8.
Put that together, and this part of the bill is telling licensed physicians that will lose their license, will be investigated, and could have to pay a fine or citation if they provide what in reality is appropriate and necessary medical care to a patient who is transgender. This is discrimination based on gender, and that means this law is illegal.
The next parts of the bill are underlined, for some reason.
“Attempted sex change” means an attempt or effort to change an individual’s body to present that individual as being of a sex or gender that is different from the individual’s biological sex at birth.
“Biological sex at birth” means an individual’s sex, as being male or female, according to distinct reproductive roles as manifested by sex and reproductive organ anatomy, chromosomal makeup, and endogenous hormone profiles.
This part makes it clear that the writer of the bill fails to understand that sex and gender are not synonyms. I’ve already pointed that out in this blog post by including the information from Psychology Today.
There is another part of this bill that would prevent transgender people under the age of 18 from obtaining puberty blockers.
“Medically unnecessary puberty inhibition procedure” means administering or supplying to an individual younger than 18 years old, alone or in combination with aromatase inhibitors: gonadotropin-releasing hormone agnostics, progestins, or androgen receptor inhibitors.
“Medically unnecessary puberty inhibition procedure” does not include administering or supplying a treatment described in Subsection (17)(a) to an individual younger than 18 years old if the treatment is medically necessary as a treatment for: precocious puberty, idiopathic short stature, endometriosis, or a sex hormone-stimulated cancer.
It is obvious that this part of the bill discriminates against transgender young people who seek to prevent having their body develop in ways that do not match the person’s gender. This is discriminatory, because it targets transgender people – while allowing the same medication to be administered to cisgender young people.
That part about “precocious puberty” makes it clear that cisgender girls or boys who start puberty early are allowed to have puberty blockers. The bill denies that exact same type of medication to transgender girls or boys. This is discrimination.
Pediatrics, the Official Journal of the American Academy of Pediatrics, posted information titled: “Ensuring Comprehensive Care and Support for Transgender and Gender-Diverse Children and Adolescents”. From the information:
…Gender Identity is not synonymous with “sexual orientation,” which refers to a person’s identity in relation to the gender(s) to which they are sexually and romantically attracted. Gender identity and sexual orientation are distinct but interrelated constructs. Therefore, being transgender does not imply a sexual orientation, and people who identify as transgender still identify as straight, gay, bisexual, etc. on the basis of their attractions…
…Gonadotrophin-releasing hormones have been used to delay puberty since the 1980s for central precocious puberty. These reversible treatments can also be used in adolescents who experience gender dysphoria to prevent development of secondary sex characteristics and provide time up until 16 years of age for the individual and family to explore gender identity, access psychosocial supports, develop coping skills, and further define appropriate treatment goals. If pubertal suppression treatment is suspended, then endogenous puberty will resume…
A vote was held on HB0092 (also called HB92) on February 19, 2021. There were 10 YEAS and 3 NAYS. This means the bill was marked as “passed”.
According to KUER 90.1 (which appears to be part of the BBC), the other anti-trans bill that would prevent transgender minors from accessing gender affirming health care (hormone therapy, puberty blockers, and surgery) failed. During its first committee hearing, lawmakers sent it back to the Rules Committee after some changes had been made on it. The Rules Committee decided not to give the legislation another public hearing. Governor Spencer Cox said he would veto this legislation.
Utah Governor Wouldn’t Sign Anti-Trans Bills is a post written by Jen Thorpe on Book of Jen and is not allowed to be copied to other sites. If you enjoyed this blog post, please consider supporting me on Ko-Fi