Estimated read time: 9-10 minutes
SALT LAKE CITY — The Utah Senate approved a controversial bathroom bill Thursday following a flurry of late changes to the policy and mixed messages from lawmakers about what the bill actually does.
After introducing significant changes to HB257 in a second substitute of the bill on Wednesday to remove language barring transgender individuals from restrooms that don't match their designated sex at birth, floor sponsor Sen. Dan McCay, R-Riverton, on Thursday introduced a new draft of the bill that defines gender-specific bathrooms to exclude transgender people — a dramatic and surprising reversal from the day before.
Senators approved the latest draft Thursday, as more than 100 gathered on the steps of the Capitol urging Gov. Spencer Cox to veto the bill.
McCay's recent substitute reverts to previous restrictions on individuals using restrooms that don't match their sex designation in government-owned buildings, although there are no criminal penalties or enforcement mechanism for violating the bill.
The senator described his amendment as doing what the original bill intended, although "in a different way."
"Instead of making this about enforcement, we define what bathrooms are and we define who belongs in what bathroom and how to, I guess, qualify to be in one bathroom or another," McCay said. "And I think that definition makes it very clear."
He began his floor speech by citing over a dozen reports of sexual assault or rape in or near restrooms from around the country, though he said he was unaware if the assailants were transgender.
"I have four daughters," he said, "I'm done with it."
"I grew up the same as most of us do, I know what the sign means on the outside of the bathroom or outside the locker room," he added.
Critics and supporters alike have acknowledged that the bill will likely face legal challenges, with whispers of potential lawsuits already making their way through the Capitol.
Mixed messages on bill's impact
McCay's substitute was made public only minutes before the Senate began final discussion on the bill, taking some senators and other stakeholders by surprise. Senate leadership appeared comfortable with the second substitute during their daily press briefing on Wednesday, although answers to questions about the policy in previous days were at times confusing and appeared contradictory to what was in the bill.
McCay told reporters Thursday that the changes made on Wednesday were "never intended" to make it "OK for anybody to use every bathroom." He said lawmakers had been working on a "short timeline" to craft the earlier bill — which was also unveiled minutes before senators convened on the floor Wednesday — and that he had received only two hours of sleep the night before.
"So, if you'll forgive my absentminded(ness), I missed a few things," McCay said.
But during Wednesday's press conference, the senator referenced the exclusion of the bathroom restrictions, and spoke favorably of that version along with members of Senate leadership.
Senate President Stuart Adams, R-Layton, throughout the week has repeatedly denied to reporters that the bill includes limits on restroom access for transgender individuals.
"As I read the bill, it didn't restrict people going into the bathroom," Adams told reporters Tuesday. "I don't think what the media or what the public is saying is what's in the bill, so I'm trying to figure it out."
At the time of Adams' comments, the text of the bill read: "To preserve the individual privacy of males and females, an individual may only access an operational sex-designated privacy space in a facility that is open to the general public if: the individual's sex corresponds with the sex designation of the privacy space; or the individual has" legally changed the sex on their birth certificate and undergone gender-related surgery.
Sen. Daniel Thatcher, R-West Valley City, an outspoken supporter of transgender rights in the GOP caucus, spoke favorably of the second substitute on the floor Wednesday, and McCay didn't correct him when he praised the removal of sex-based distinctions when it comes to restroom use.
"I want to express my incredible gratitude for this big change," Thatcher said Wednesday. "Removing the sex designations related to restrooms and focusing on the behavior is a huge change."
He called Wednesday's substitute bill a step in the "right direction" on the policy, but criticized the reversal and voted against the bill Thursday.
"I agree that there is a problem with people going into spaces, and I believe — I know for a fact — that there is a problem with sexual assault. I know for a fact there's a problem with sexual violence in our country and our state," he said. "But this bill, in making a prohibition against transgender individuals, is not targeting the actions."
Thatcher proposed an amendment to the bill to prohibit anyone from exposing their genitals in common areas of bathrooms and locker rooms regardless of gender and remove gender-based restrictions, but it was voted down. He acknowledged the speed with which lawmakers have advanced and altered HB257, and said "in a perfect world" lawmakers would take a pause while working out the finer details.
The bill ultimately passed 21-8, with Sens. Thatcher and Todd Weiler, R-Woods Cross, the only Republicans who joined with all Democrats in opposition.
HB257 has quickly moved through both chambers of the Legislature in the first two weeks of the general session. Following the changes in the Senate, the House will need to approve the bill again before sending the bill to the governor's desk.
Representatives met briefly on the floor Thursday afternoon to read in the latest version of HB257 with the Senate's changes. The House chose to recess without voting on HB257, which could signal ongoing discussions taking place behind the scenes.
Rep. Kera Birkeland, R-Morgan, sponsored the bill in what she described as an effort to increase privacy for women in restrooms, but opponents and LGBTQ advocates have criticized it as something that further stigmatizes the transgender community without adequately protecting restroom privacy.
McCay's second substitute exempts federal grant recipients such as domestic violence shelters and rape crisis centers, after service providers expressed concern that the bill would risk millions in federal funding by violating federal anti-discrimination laws. That language was carried over to the current version of the bill.
Here is what the current version of the bill does:
- HB257 narrowly defines both "male" and "female" in state code to exclude transgender people. Female characteristics are defined as a person's reproductive system that is "of the general type that functions in a way that could produce ova."
- The bill covers bathrooms and changing rooms in government-owned facilities, not private facilities such as malls, movie theaters or grocery stores.
- In order for a transgender person to enter any sex-designated changing room that does not align with their sex designation at birth, they must first undergo gender-related surgery and legally change the sex on their birth certificate.
- The same rule applies for sex-designated restrooms in K-12 schools.
- The bill defines men's and women's bathrooms to exclude transgender individuals, although it does not include enforcement or criminal penalties for violations unless a crime is committed.
- HB257 enhances criminal penalties for those who simultaneously commit multiple crimes in a restroom regardless of their gender. It adds an additional criminal penalty if a person commits crimes while in a bathroom of the opposite sex.
- The bill requires that future government buildings offer more unisex or single-stall restrooms and facilities.
- The proposal would codify elements of Title IX to require equal access to facilities in boys and girls high school sports.
'It's a gut punch'
Senate Democrats spoke out emotionally against the bill on the Senate floor, and joined with the House Democratic caucus in a press conference following HB257's passage.
"Nobody prepares you for how hard it's going to be to feel like you let people down. ... It's a gut punch," said Sen. Jennifer Plumb, D-Salt Lake City. "This is really rough."
Sen. Nate Blouin, D-Salt Lake City, who has previously said sexual assault is a "behavior issue," said the latest bill is "a little less draconian than when it started, but it still sends the message that people should be ashamed of their identity."
All 20 Democratic lawmakers gathered outside the doors of the Utah Supreme Court at the Capitol, dressed in dark colors "because we are hurting," said Senate Minority Leader Luz Escamilla, D-Salt Lake City.
"We stand together as a group and making sure that people know we're here and we will keep on fighting for good public policy and to stop petty attacks on our communities," she said.
"Why we're here, and why all these members are standing together is we want people of color, we want our LGBTQ+ community, we want anyone who's marginalized to know that we are here and we are your voice," said House Minority Leader Angela Romero, D-Salt Lake City.
Rally for transgender rights
A crowd numbering 100 or more gathered around the Capitol's south steps Thursday to rally for the veto of HB257.
"We are here because we believe that trans people, just like any other person, should be allowed in public spaces," said Gabriela Merida, a member of the student-led anti-colonial, anti-imperialist socialist student organization Mecha de U. of U. — a group whose demonstrations and statements led to the university's Center of Equity and Student Belonging pulling their sponsorship. "We want the bill to be rejected because there's no evidence that is needed; it is just another way to control the queer and trans population and we will not stand for it."
Speakers at the rally — who hailed from a wide range of nonprofit advocacy groups like the Nuanua Collective, Armed Queers and Project Rainbow — said HB257 scapegoats the transgender community for sexual assaults perpetrated by other predators.
"There are implications for young children in public schools not being able to use a restroom that lines up with their gender identity which will further ostracize them and isolate them," said Nick Arteaga, ACLU Utah's transgender rights strategist.
"I feel upset and concerned and angry as a senior citizen who has lived through so much my whole life," said Tom Meyer, 71, of Millcreek, who compared anti-transgender legislation to other forms of discrimination he has seen. "Why can't we all just get along? It's not a matter of laws, it's a matter of human rights."
Contributing: Sky Mundell
