Unsportsmanlike Conduct 

• Derek Carlisle

Utah has joined the ranks of Republican-led states that prohibit transgender girls from competing in school sports, inserting the heavy hand of law into the rules of extracurricular activity and adding The Beehive State's collective voice to an anti-trans movement that has taken on outsize volume among the nation's conservative voters.

But achieving the ban was no small feat for legislative leaders, who first had to convince enough members of the GOP caucuses to reverse their prior opposition to the ban and override Gov. Spencer Cox's only veto of the 2022 session.

That override was accomplished on March 25, immediately followed by a special legislative session—three weeks after the regular session concluded—to indemnify school districts and the Utah High School Activities Association (UHSAA), set aside $500,000 in taxpayer money to defend the ban against anticipated lawsuits and bolster a "backup plan" that would see a new commission adjudicate instances of transgender participation if, or when, the prohibition is struck down by the courts.

"I truly believe we're here to uphold Title IX," the ban's sponsor, Morgan Republican Rep. Kera Birkeland said, referring to the federal civil rights law that prohibits sex-based discrimination in education. "[We're here] to preserve the integrity of women's sports and to do so in a way, unlike other states, where we are recognizing the need to be kind and compassionate to transgender athletes."

There is no evidence that the integrity of women's sports has been challenged in any way by the participation of Utah's transgender youth, only four of whom—and one girl—are known to be currently involved in school athletics. But proponents have employed several justifications for the ban—many of which are patently transphobic—speculating that an inevitable proliferation of "biological males" in girls' sports will pose a safety risk if allowed to compete alongside cisgender athletes, while also depriving female-at-birth players of their due victories, scholarship opportunities and accolades.

"They want fair playing fields," said Birkeland, who is also a girls' basketball coach. "And they love their LGBTQ friends. They love their transgender friends."

Debate on the issue has come to overshadow the Legislature's broader efforts for the year. A surprise amendment in the waning hours of the 2022 session led to the ban being approved with little public debate and with several loose ends remaining around the likelihood of litigation. Cox promised a veto before the Legislature had adjourned, but the urgency with which lawmakers returned to the issue, absent any in-state catalyst, added fuel to a culture-war fire raging on the political right.

In the lead-up to—and during—the House and Senate override votes, lawmakers and political observers noted the timing of the action, offering Republican incumbents a chance to score points with the further-right factions of their constituencies ahead of party caucus and conventions. One Republican Senator, West Valley's Daniel Thatcher, suggested his continued opposition to banning trans athletes could cost him his seat in the chamber.

• Courtesy Photo
• Transgender advocate Sue Robbins

"If I lose my race, then I lose my race standing for what I believe in," he said, "like I always have."

And underlying the division, lawsuit threats and election maneuvering is, of course, the state's transgender community, which is already experiencing inexcusably high rates of harassment, depression and suicidal ideation. Whether they be youth athletes or not, trans Utahns were told by the state's government that their identities are invalid, and that they don't belong with their peers.

"These last few years, it has been hyperfocused on the transgender youth," said Sue Robbins, a transgender advocate with Equality Utah. "Because it makes for great red meat to the politicians, but it is tearing up our transgender youth's mental health, and their families."

Political Theater
Beginning last fall, the Utah High School Activities Association has enforced a policy that allows transgender youth to participate in sports if they have undergone at least one year of gender-affirming hormone treatment. That policy is similar to hormone-based rules adopted by the NCAA and other elite sports organizations and was put in place by a UHSAA governing board composed largely of school district representatives.

"There was no objection to our policy, and so we felt like we hit a good middle ground," Dave Spatafore, the association's lobbyist, said.

Spatafore said UHSAA did not take a position on the ban—House Bill 11—but did convey to lawmakers that a policy was in place and appeared to be working. And as UHSAA is a private entity, it would not have the state's backing in the event of a lawsuit without the indemnification approved during last week's special session.

"The way this thing is going to be structured, UHSAA will be in the middle of everything," Spatafore said.

There is precedent for lawmakers using the hammer of state law to dictate sport participation rules. The Legislature has debated legislation regulating the ability of athletes to retain eligibility when transferring between schools, and Spatafore noted that after charter schools were initially excluded from UHSAA events, laws passed requiring that charter and home-schooled students be given a route to compete.

"At UHSAA, we will follow our policy, we will follow state statute, and we will continue to do what we can to provide for our schools and our students," Spatafore said.

• Courtesy Photo
• Dave Spatafore lobbies on behalf of the Utah High School Activities Association.

Objection to HB11 was widespread, with even the Deseret News editorial board describing it as "a poster child for bad legislation." At the Legislature, Democrats were united in their opposition to the veto override and were joined in each chamber by Republicans—Reps. Mike Winder and Robert Spendlove and Sens. Todd Weiler and Daniel Thatcher—each of whom represent some portion of Salt Lake County.

Thatcher was the only Republican to speak against the vote on the floor, describing it as hollow "political theater" that harms trans Utahns, fails in its aim to protect fair competition and wastes money, as the U.S. Supreme Court has already established precedent that sex-based discrimination includes gender identity.

"It's not about whether we like it or don't like it, it's about whether we honor our oath to the Constitution," Thatcher said. "In my world, 'conservative' does not mean turning your back on your principles. It does not mean waffling when you know in your heart what the right thing is to do."

House Minority Leader Brian King, D-Salt Lake City, warned his colleagues against voting purely on partisanship over the evidence of facts and data. There is no problem in need of solving stemming from Utah's trans athletes, he said, and it's wrong to impose a ban first and study an issue second.

"Things are not simply black-and-white in terms of sexual orientation and gender identity," he said. "It's simply not accurate to say 'girls are girls and boys are boys and never the two shall meet.' There is a lot that is unknown."

Senate President Stuart Adams, R-Layton, pushed back on Thatcher's description of the debate as "theater." He told reporters after the override vote that some lawmakers believe a ban will be effective and others believe the commission is the right solution. As such, the law combines both and now protects school districts and the UHSAA from bankruptcy, which was the change necessary for the GOP members who changed their votes and delivered the requisite two-thirds majority to override the veto.

He also suggested the abnormal speed exercised by the Legislature to enact the law—which never received a public hearing in its current form—was an act of kindness, as the alternative would have meant prolonging debate on a difficult topic.

"I don't think it's compassionate to the transgender community to keep debating these bills this year and the next year and the next," Adams said. "Hopefully, we can move forward and put that divisiveness behind us."

But the expected lawsuits and campaign rhetoric heading into the November elections are certain to keep the topic of transgender rights in the news and on people's minds. And Equality Utah's Robbins emphasized that the minutiae of what did or did not pass on Capitol Hill is secondary to the larger issue of a vulnerable and stigmatized community being invalidated.

"What I don't want to lose is that every youth who is transgender watches this narrative, hears discriminatory and dehumanizing language and feels targeted. They feel like this can expand beyond sports, just because people don't understand them," Robbins said. "They feel like they have a target on them, and it's going to affect their dysphoria and their ability to progress through their lives."

Runaway Legislature
A month ago, in the final weeks of the legislative session, negotiations on a potential compromise version of HB11 broke down. Details are both vague and widely known, and they reportedly include conservative groups balking at any athletics policy that would encourage—by relying on—gender-affirming health care and LGBTQ community advocates objecting to the proposed commission being politically controlled and judging children on physical characteristics like weight, height and wingspan.

"Bodies aren't numbers," Robbins said.

Robbins said it's frustrating to see the commission now held up as a virtuous middle ground when a consensus on its structure was never achieved. And she added that even the UHSAA's hormone-based policy is flawed, as not all transgender children are able to or interested in undergoing gender-affirming treatment.

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• Benjamin Wood
• Republican lawmakers wait their turn while Rep. Mark Strong, R-Bluffdale, speaks at a rally in support of banning trans girls from school sports.

"It's more restrictive than it needs to be, but it is the least restrictive of everything that has been discussed," Robbins said. "There are a lot of barriers for our transgender youth, in particular just feeling like they can be out and doing the things that they want while they're transitioning. You have to get through all those before you can even think of anything like sports."

And while it's encouraging that even more aggressively anti-trans trends have not yet taken hold in the Utah Capitol—other GOP states have proposed bans on transgender health care and sought to label the affirmation of transgender identity as child abuse—Robbins said the overall posture of The Beehive State is not one of welcome.

"Right now, I would say Utah doesn't feel like a safe state for anybody," she said. "Once you have one oppressive law, then you can't have faith that there won't be more coming."

That sense of uncertainty was shared by Brad Plothow, chief growth officer for Intergalactic, an aerospace technology company. He said he was alarmed by debate on vaccine passports during the legislative session and while his business may not be directly affected by a ban on trans athletes, it adds to the specter that the Legislature can't be trusted to act in the best interest of residents.

"It's pretty obvious at this point that things have gone beyond normal politics," Plothow said. "We've got a Legislature that has unchecked power, knows it and is using it to placate base fears in ways that have material impacts on people and companies."

Plothow said tech companies have already been cast as villains by some lawmakers. How long, then, until his or other industries are the target of discriminatory legislation? "The narratives are shifting all the time, there's always a new boogeyman," Plothow said. "If you're pursuing message bills and wedge issues for overtly partisan purposes, nothing is off the table."

He said the state's reputation impacts his ability to recruit and retain employees. And while he can't define it, he said there is a point at which it may become simpler to relocate.

"Our employees get mixed messages. At best, it's a distraction, at worst, it's kind of an existential problem for us to deal with that we have a runaway Legislature," Plothow said. "If we don't watch what's happening, we could run afoul of a law that we would have never fathomed being on the table."

There is already speculation that the ban on trans athletes could lead to the relocation of major sporting events planned or anticipated in the state, from next year's NBA All-Star game to the long-expected prospect of a second Olympic Winter Games. Provo Republican Sen. Curt Bramble, the ban's Senate sponsor, scolded reporters for even raising the question of legislating based on economic impact, while House Speaker Brad Wilson, R-Kaysville, said that he has not received any word of cancellation from the NBA or other event organizers.

"I'm looking forward to the NBA All-Star game," he said. "I think we'd all be happy to chat with [the NBA] about that."

Asked whether state law is the appropriate tool for regulating sports, Birkeland said the presence of trans competitors infringes on the right of female athletes to a fair playing field. That denial of rights, she said, is where the state has a role to play.

"Somebody identifying as a girl—I don't believe that alone should give them the opportunity to deny the rights of another girl," Birkeland said.

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• Benjamin Wood
• A rallygoer confronts counter-demonstrators shortly before lawmakers voted to override the veto of HB11.

She said it's wrong for Republican lawmakers to be portrayed as uncaring toward the transgender community. HB11 does not target the four known transgender athletes or other trans individuals in any "way, shape or form," Birkeland said.

"I think it's important that we send a message to kids that they are loved," she said. "They are cared about."

The Senate's Democratic Caucus, in a combined statement, said they were "entirely disheartened" by the actions of the Legislature. HB11, they said, is an unconstitutional attack on children's rights that will trigger costly legal battles and damage public confidence in the legislative process.

"Most importantly, the consequences our children will face because of HB11—including severe impacts to mental and emotional health—is deeply troubling and should alarm all Utahns," they said. "As Democrats, we will remain vigilant in defense of life, liberty and the pursuit of happiness for all in the state of Utah. We realize the outcome of the veto override and special session will deeply hurt our transgender community—please know we love and stand in support of you and will continue to fight for inclusive public policies that are not discriminatory."

In a prepared statement following the override vote, Gov. Cox said he was grateful to the Legislature for recognizing there were "serious flaws" in HB11 and acting to mitigate them.

"I called a special session today to fix at least one flaw in the bill, and we're heartened that the Legislature agreed to indemnify school districts and the Utah High School Athletics Association from the enormous financial burden that inevitable litigation will have on them," he said. "I remain hopeful that we will continue to work toward a more inclusive, fair and compassionate policy during the interim."

When Cox announced his veto of the legislation last week, he did so in a lengthy and impassioned letter to House and Senate leadership that detailed his reservations about the bill.

Cox said he agrees on the need to protect fair competition in girls' sports, and he objected to a university-level swimmer whose success in the pool has outraged conservatives—an "egregious" example, Cox said—but he emphasized that those issues have not been seen in Utah, nor are they likely to in the near future.

"Four kids and only one of them playing girls' sports. That's what all of this is about," Cox wrote. "Four kids who aren't dominating or winning trophies or taking scholarships. Four kids who are just trying to find some friends and feel like they are part of something. Four kids trying to get through each day. Rarely has so much fear and anger been directed at so few. I don't understand what they are going through or why they feel the way they do. But I want them to live."