A 'fair playing field' or discrimination? Utah House panel debates transgender athlete bill

Bill sponsor Rep. Kera Birkeland, R-Morgan, speaks
Thursday, Feb. 11, 2021 to the House Education Committee.

(Kristin Murphy, Deseret News)

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SALT LAKE CITY — After hearing emotional testimony of both LGBTQ advocates and cisgender female athletes, a Utah House panel recommended a bill that would bar transgender athletes at public schools from participating in girls sports.

HB302, titled Preserving Sports for Female Students, would require public schools to designate athletic activities by sex. It would prohibit a student of the "male sex" from participating in athletic activities designated for female students.

Arguments in support of the bill shared during the House Education Committee meeting hinged on the history of women's sports and some cisgender (not transgender) women athletes' fear of losing their hard-earned place, while those against the bill decried its constitutionality and its potential effect on transgender kids.

Throughout history up until the civil rights and feminist movements, women weren't given opportunities to participate in sports, said bill sponsor Rep. Kera Birkeland, R-Morgan.

After "many talented, courageous" women spoke out, she said, they earned the ability to participate. Then Title IX became law, prohibiting sex-based discrimination in any school or other education program that receives federal money, and paving the way for women's sports.

"Across America, there are stories of individuals who identified as male at birth competing against our female athletes. These individuals who identified as male at birth are breaking records that no female will be able to reach. They're taking championships, titles and scholarships from our female athletes," Birkeland said.

While Birkeland said her bill will promote fairness in sports, Troy Williams, executive director of Equality Utah, said it will do the opposite.

"I don't believe that the representative's intent is to harm transgender students, but the impact most definitely will," Williams said when the meeting opened for public comment.

While inclusion is important in sports, it will come at the cost of fairness.

–Rep. Kera Birkeland, R-Morgan

The Utah way is "fairness for all," according to Williams. But he contends that Birkeland drafted the law "in isolation from Equality Utah and the very transgender community that it impacts."

"This bill does discriminate. It tells some children, 'You can't play, you don't belong on the field.' And that's discrimination," Williams said. "This process, as it's been done, is not the Utah way."

Idaho passed a first-of-its-kind law last year that bans transgender women from playing high school and college sports in the state. But a federal judge blocked it from taking effect.

The Idaho lawmaker who sponsored that bill, Rep. Barbara Ehardt, R-Idaho Falls, also spoke during the Utah House committee meeting. She said she believes the law should ultimately be protected by Title IX.

"In the arena of sports, one sex matters, and it matters as young as 4 and 5 years old," said Ehardt, who described herself as a lifelong athlete and college basketball coach.

The debate about transgender women in sports is also raging on the federal level and is expected to heat up under the Biden administration.

Sen. Mike Lee, R-Utah, is leading 13 of his GOP Senate colleagues in introducing the Protection of Women and Girls in Sports Act, a bill that he says would protect athletic opportunities for female athletes.

Sen. Mitt Romney, R-Utah, also recently said he believes children "shouldn't be competing with people who are physiologically in an entirely different category, and I think boys should be competing with boys and girls should be competing with (girls) on the athletic field."

During the committee meeting, Birkeland introduced a substitute bill that would remove colleges from the original legislation. She said she intends to introduce another bill next year that includes colleges if the issue doesn't get resolved at the federal level.

'I couldn't believe that this was deemed as fair'

Haley Tanne, a track athlete at Southern Utah University, said participating in collegiate sports requires "hills on hills, miles upon miles and countless hours of hard work."

"But it's all worth it if means that I can take even a second off my personal best. It wasn't until last year that I felt a part of my sport crumbling as I found myself forced to race against a biological male," Tanne said.

"The first time I raced with a biological man, it felt bizarre," she said, explaining that it felt like she was running against "a giant."

Because the athlete was in the team's conference, they raced her frequently, Tanne said. During one race, Tanne said the woman's coach was overheard urging her to "slow down."

"That is not common advice you tell your athletes, to slow down during a race," Tanne said.

"Racing against (the woman), a biological male running as a transgender female, is hard," she said, explaining that the way the woman runs a race appears as if "she just ran a moderate workout."

Alison Pray, another of several SUU track athletes gathered at the meeting, said she faced struggles while growing up, and running was the only thing "that was consistent and that I could count on."

I had a granddaughter who at age 6 could run circles around any little boy.

–Rep. Carol Spackman Moss, D-Holladay

The first time she went up against the transgender competitor, Pray said she "instantly felt completely defeated" upon seeing the woman's stature. She thought the only way she could win is if the other runner decided "to let me."

Birkeland said she believes the issue should be addressed now "before we have a community torn apart." Those born as male and female have different biological features that affect their performance, Birkeland said.

"While inclusion is important in sports, it will come at the cost of fairness," she said.

Gayle Ruzicka, Eagle Forum president, said 50 years of work from women will be "overturned if they can have males in sports" as biological males are born with features that make them predisposed to be better at sports.

"If we allow men to participate in women's sports, the message to the women is that you deserve equal opportunities except in sports," Ruzicka said during public comment.

'This is a problem that does not exist'

Rep. Carol Spackman Moss, D-Holladay, asked if Utah has seen incidences "where a transgender girl tried to play in sports."

Birkeland said a small number of students have considered playing but ultimately chose not to.

As a teacher, Moss said she saw female students who were "taller, stronger," and it's not uncommon for girls to be more athletic and play sports competitively.

"I saw my female students going on to play soccer in college. I had a granddaughter who at age 6 could run circles around any little boy," Moss said. She asked if those more athletic cisgender girls could eventually be banned due to their physical characteristics.

"I'm not requesting that we just say, 'They cannot play sports at all,'" Birkeland said. She said she is committed to making sure there's a "fair playing field" for those who compete in sports while the science and data on the issue gets worked out. She promised to work with stakeholders on the issue.

During public comment, Dr. Jennifer Plumb, a pediatrician, said the bill would be ill-advised as the state faces a high rate of youth suicides.

"Where that comes from is a place of not belonging, of not feeling that you matter, of not feeling that you have a space in your community," Plumb said.

As no transgender athletes play sports at Utah's schools now, "This is a problem that does not exist," Plumb said.

Heidi Matthews, Utah Education Association president, said that her transgender students have been "at the highest levels of not wanting to live."

She called the bill "unnecessary, harmful and incongruent with values stated by this Legislature."

Dr. Lucy Hansen, also a pediatrician, said her daughter is transgender and she wants her to receive the benefit of sports. She fears her daughter, who will soon start kindergarten, will be denied opportunities.

"And I don't see how a kindergartner playing sports has anything to do with gender," Hansen said.

Salt Lake City Councilman Chris Wharton said city leaders are concerned about the risks the bill could pose to the economy. Idaho suffered economic impacts from passing similar legislation, he noted.

The bill also sends a message "inconsistent with our bid to host the Winter Olympic Games again in Salt Lake City," Wharton said.

Question of constitutionality

Rep. Karen Kwan, D-Murray, questioned the constitutionality of the bill. As a child, Kwan said she used to be called a "tomboy" as she played with her brother and his friends.

"I categorically reject the idea that girls can't compete with boys. I grew up with the belief and the thinking that I can do anything a boy can do, and in some cases I can do it better," Kwan said, pointing to "the diversity within our gender."

She noted that the Utah High School Activities Association already has policies in place.

Last year, the association developed a policy for transgender students in sports after the Idaho bill prompted an ongoing lawsuit.

The association allows transgender students to compete on gender-specific sports teams if they are identified as that gender in current school records and in "daily life activities in the school and community" when eligibility is determined. A male-to-female athlete may not participate on a girls team if they are not taking hormone treatment for gender transition, according to the policy.

Lobbyist David Spatafore, speaking on behalf of Utah High School Activities Association, said the group is neither in favor of the bill or opposed to it and will enforce it should it pass. But the association is at "the tip of the spear" in facing potential lawsuits.


"We are the ones who will be litigated first if this bill becomes law," he said, even as the group that manages high school tournaments faces major revenue losses brought on by the pandemic.

Spatafore asked that the association be indemnified in the bill so that it won't be liable in future lawsuits.

Birkeland called the existing policy "good." But she said she doesn't believe it's the "best" policy, and she's concerned it won't prevent potential discrimination lawsuits from the parents of transgender students who get excluded from teams due to their athletic ability.

Michael Curtis, a member of the legislative council speaking neither for nor against the bill, said it does present constitutional issues, as the state is prohibited from treating "similarly situated" students differently. The bill also wouldn't block transgender male students from participating in boys' sports, he said.

"Unfortunately, we do not have specific Utah case law on point," Curtis said, but he cautioned that it is "possible, if not probable, that a court would rule (the bill) unconstitutional."

Marina Lowe, legislative and policy counsel with the ACLU of Utah, said numerous lawsuits will be leveled against the state "on virtually every front" should the bill pass. The bill could also put Utah at risk of losing Title IX funds under the Biden administration, Lowe said.

"One way or the other, litigation is coming. The question is, do you want it to come from organizations, or do you want it to come from parents? Do you want to see communities ripped apart" when a child is at the center of the issue? Birkeland asked.

In her closing remarks, Birkeland said it's unfair that girls can't play football — noting a highly-publicized lawsuit — when those who are born as boys can play girls sports.

"How can we say that we stand with you when at the same time we are telling them that they are not tough enough to play on a boys football team, but we won't protect you from them coming to play on your team," Birkeland said passionately.

Despite the request of some House committee members to hold the bill for issues discussed during the meeting to get smoothed out, it received a favorable recommendation with a 6-4 vote. It will move to the full House for consideration.

Senate President Stuart Adams, R-Layton, told reporters later Thursday that he's "concerned about doing the right thing and getting the policy right" in regards to the bill.

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