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SALT LAKE CITY — Utah senators adopted significant changes to a transgender bathroom bill on the Senate floor Wednesday — removing sex-based distinctions in restrooms in government-owned buildings, while retaining limits on restroom use that doesn't match an individual's sex at birth in publicly-operated changing rooms and bathrooms in public schools.
A substituted version of HB257 — which was adopted and given preliminary approval by the Senate — also excludes domestic violence shelters and other entities that receive federal grants, after service providers expressed concern the original bill could threaten millions in federal funding.
Sen. Dan McCay, R-Riverton, the floor sponsor of the bill and sponsor of the substitute, said the new version makes a distinction between restrooms and changing rooms. The bill still requires an individual to legally change the sex on a birth certificate and undergo gender-related surgery in order to use a changing room or locker room that doesn't match their sex at birth.
"We want to ensure that everyone feels comfortable in privacy areas in Utah," he told colleagues on the floor.
He praised bill sponsor Rep. Kera Birkeland, R-Morgan, saying he's "proud of what she's done in working with stakeholders and working with drafting attorneys and with me. I'm not always easy to work with, so I give her hats off for doing that."
The most recent changes do not restrict access to transgender individuals in government-owned or government-operated buildings — except for public schools — as long as the individuals don't engage in lewdness, voyeurism or loitering. McCay's substitute enhances penalties for people who engage in inappropriate behavior in restrooms, though the senator was unsure when asked if it applies only to individuals when in a restroom that does not match their designated sex.
Bathroom use would still be limited in public schools because they are already required to provide privacy accommodations such as unisex spaces for transgender students, according to McCay.
HB257 still includes requirements that government buildings increase the number of unisex or single-stall facilities available to the public.
Senators unveiled the substitute version of the bill shortly before taking recess on Wednesday, with plans to vote a final time Thursday morning.
Equality Utah, an LGBTQ rights organization, has opposed previous versions of HB257, and in a news release Wednesday, the group said it is "pleased" to see some of the changes, but remains opposed to the bill. The statement called the provision focusing on inappropriate behavior rather than gender identity a "positive development," but Equality Utah said the substitute "continues to restrict transgender children from using the restroom in public schools that (correspond) with their gender identity."
"We are grateful to lawmakers for hearing our concerns and incorporating many of our requests into the new language," the statement said. "However, we remain gravely concerned that transgender students in schools will be marginalized by this legislation, and that their safety and privacy will be endangered."
The changes also come with an acknowledgement that the law is likely to face legal challenges, which could prevent parts of the bill from going into effect depending on how courts rule. McCay is no stranger to having legislation blocked by the courts — his near-total abortion ban, passed before the overturning of Roe v. Wade, has been halted while the courts consider its constitutionality.
"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 ... it is one thing to pass a bill — it's entirely another thing for it to take effect," he said, when asked if he is worried about some constituents being frustrated by the latest version of the bill.
Senate President Stuart Adams said he views this version as similar to the original when it comes to trying to protect the privacy of people in restrooms, it's "just a different way of putting it." He also pointed to the increased penalties for inappropriate behavior in restrooms, saying the supporters of the original bill "ought to be really, really excited about the second bill because I think it's actually better."
Senate Democrats have yet to take a position, citing further review of the changes.
"We are eager to read it," Senate Minority Leader Luz Escamilla, D-Salt Lake City, told reporters.
The Senate GOP caucus appeared to be split on the proposal ahead of the vote. Senate Majority Leader Evan Vickers, R-Cedar City, said Republicans discussed the bill during their caucus lunch meeting on Tuesday.
"We did talk about the transgender bathroom bill and had significant discussion about it, but did not take any position," Vickers said. "We are considering some changes and Adams is working with Rep. Birkeland and others to look at potential policy changes to make sure we get it right."
Republican Sens. Todd Weiler, R-Woods Cross, and Daniel Thatcher, R-West Valley City, both signaled support for the changes in speeches on the floor. Thatcher has spoken passionately against bills in previous sessions to prohibit transgender girls from competing in high school sports and ban gender-related surgeries for minors.
He said he was "prepared" to "fight this battle," but was encouraged by the changes.
"I want to express my incredible gratitude for this big change," he said. "Removing the sex designations related to restrooms and focusing on the behavior is a huge change, and I hope is enough to bring support from the community and to send the message that we are trying to solve a problem and not target anyone specifically."
"It looks like it's a vast improvement," said Weiler, who still voted "no" in a preliminary round of voting because it would be "irresponsible to vote yes on something I don't understand yet."
Senators are expected to vote on the bill on Thursday. In the meantime, negotiations are likely ongoing between stakeholders and additional changes could be made before the bill is approved.
Because the Senate changed the bill that was approved by the House late last week, HB257 will go back to the House for consideration if approved by senators. Lawmakers in the House have scheduled floor time Thursday afternoon and could consent to any bill passed through the Senate earlier in the day.
