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Utah bill restricting trans females from playing girls’ sports in schools passes committee

A bill aimed at prohibiting transgender female athletes from participating in girls’ sports passed through the Utah House Education Committee on Feb. 11. The bill moves on to be debated on the floor of the Utah House of Representatives.

The bill is one of many being introduced in state legislatures across the nation by conservatives. Montana’s bill is modeled closely to the Idaho bill that passed last year. Also titled the “Save Women’s Sports Act,” the bill would require public school athletic teams to be based on “biological sex.”

A similar bill in Idaho passed last year. Legislatures in North Dakota, Mississippi, Utah, and Tennessee have passed through committees, and Oklahoma, South Carolina, Tennessee, Kentucky, and New Hampshire have bills waiting to be heard.

A federal judge ruled in August 2020 that Idaho’s law was likely unconstitutional and passed strictly due to animus against transgender people, prompting him to grant a preliminary injunction that stalled HB500’s implementation.

House sponsor Rep. Kera Birkeland introduced the bill to the committee and couched her arguments for the bill as a fight for the underdog — girls in sports — saying that the history of females participating in sports is a short one which is on the brink of being lost to transgender females.

“Females will be left as spectators in their own sports,” she warned.

“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 are taking championships, titles, and scholarships from our female athletes,” Birkeland testified.

Birkeland even said that it isn’t fair that girls must compete against transgender girls while experiencing menstrual cramps.

Haley Tanne, who runs track at Southern Utah University, was introduced by Birkeland and testified about competing against a transgender woman in track.

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

“The first time I had to run against a biological male was bizarre. I felt like I was running against a giant. Not only was this athlete thicker boned and generally larger, but also reached a height well over 6 feet and towered over the female athletes. I couldn’t believe that this was okay and deemed as fair,” Tanne said.

“Competing against a biological male running as a transgender female is hard. While you watch her effortlessly pass girls, winning heats, and crossing the finish line as if she just ran a moderate workout, it makes you feel sick inside,” Tanne continued.

She said the experience brought her “anger, sadness, and confusion.”

According to records of the only NCAA championship in which Juniper “June” Eastwood competed, she did, indeed, win one race — the Women’s 1 Mile Run. She came in 4.5 seconds faster than second-place Mikayla Malaspina.

Malaspina went on to win first place in the Women 5000 Meter Run and the Women 3000 Meter Run, a race in which Eastwood placed 15th.

Tanne placed 16th in the 1-mile Run and 26th in the Women 3000.

The headline on SaveWomensSports.com — created to push legislation across the country — reads, “Man Takes Home NCAA Conference Championship in Women’s Mile.”

Asked about fairness in competing against biological females, Eastwood said that’s a mixed bag.

“When you’re talking about a sport like distance running, there’s a lot of different factors, and I’m going to have advantages and disadvantages,” she said. “My height and being a little heavier are disadvantages. I’m running against people with less weight, and I’m more injury-prone. In my case, I’m comparatively slower after the transition than I was before. It comes down to a lot of reasons — being heavier and taller — and honestly, because I have less testosterone than almost all of the women I compete against because the medication almost annihilated my testosterone.”

As an example of the physical difference after testosterone depletion, Eastwood said she covered 1,500 meters in about 3 minutes, 51 seconds before hormone treatments. She believes her 1,500 now would hover around 4:24 – about a 13 percent speed decline.

Asked if it would become common for students assigned as male at birth to transition to female to win races, Eastwood calls the notion “absurd.”

“That’s unfathomable to me,” she told 406 Mt Sports. “If you’re comfortable in your body already, there would be no reason to transition. I don’t think anybody would ever do that to win some race or have a competitive edge in sports.”

“Even if it was the case, it seems like a very serious outlier.”

Rep. Carol Spackman Moss asked Birkeland f there have been any cases of transgender girls wanting to participate in sports in Utah high schools.

Birkeland answered that a few transgender girls in the state have considered playing but chose not to do so.

Moss also asked if cisgender females who are taller and more muscular will be the next targets, as they may have an unfair advantage over other girls.

“There will always be those differences,” Birkeland answered. “But at the end of the day, we’re both cisgender females. We have that similarity. The competitive advantages isn’t there. I’m not requesting that we just say they [transgender girls] cannot just play sports at all. I just don’t know that we know the data. Is it one year [of hormone therapy]? Is it four years?”

“I think until we can get that figured out, we need to pause,” she continued. “while we work out the science and the data.”

Moss lastly asked about what tests the bill would require in the case of more masculine or taller girls.

“I think [requiring a girl to submit to a physical test] is just wrong and illegal,” she said. “These are some of the unintended consequences of this bill.”

“We can’t require every high school girl to submit to testing,” Birkeland answered. “and it would be discriminatory to ask someone to submit to additional testing because of their identity. So if we don’t want to require extra testing, it’s imperative that we do what we can to keep the playing field as fair as possible.”

 “This is not, and I mean this with all the sincerity in my heart … I have many friends who are transgender … it is not my intention to disclude them from any sport. But we have to weigh that against what is fair.”

“I have a girl on my team right now who is a freshman but she is the tallest girl on my team, but she was born that way and is not transitioning to anything but what she was born as. So there is an equalizer to that measure.,” Birkeland said.

Constitutionality

Michael Curtis, an attorney with the Office of Legislative Research and General Counsel, testified that the bill raises significant constitutional questions under the Equal Protection Clause of the 14th Amendment of the United States Constitution and corresponding provisions under the Utah State Constitution under the uniform operation of laws.”

“There a fairly recent District Court decision in Idaho recognizing the legitimacy of an equal protection claim based on the state’s differing treatment of transgender individuals,” he said. “There’s a similar challenge on employment that you might have heard of in the United States Supreme Court in June of 2020. The case is called Bostock v. Clayton County.”

“The court held that discrimination based on sex, however, they may manifest themselves or whatever other labels that they might attach to them. “The analysis turned on whether ‘changing the employee’s sex would have yielded a different choice by the employer.’”

“So if the court applied that same employment analysis to the sports restriction in this bill because the student’s sex is the sole factor in the restriction, the court could likely reach the same result.

The court specifically said that other questions like the legality of bathroom, locker room, dress codes, ‘are questions for future cases.’ So it’s possible, although improbable, that the employment will not later extend more broadly into areas such as the participation of transgender individuals in sports.”

“There is a significant risk that a court in Utah would hold the bill unconstitutional, but courts have not settled on the analysis that would apply to the specific context of this bill.”

“It’s certainly highly risky, possible but not unprobeable that a court would find it unconstitutional,

The Utah Way

Troy Williams, executive director of Equality Utah. “We do support women’s sports. I don’t believe that the representative’s intent is to harm transgender students, but the impact most certainly will.  

Williams said that “The Utah Way” was to draft bills with all parties involved and find a compromise that will work for all.

“In contrast, HB 302 was drafted in isolation from Equality Utah and the very transgender community that it impacts.

Williams said it took five years to build the trust between the LDS Church and the LGBTQ community.

“But Rep. Birkeland has not yet built that trust within the LGBT community. I’ve told her that I hope we can become friends and work together in the future, but now, this bill does discriminate. It tells some children, ‘You can’t play,’ ‘You don’t belong on the field. And that’s discrimination.

“Let’s follow the Utah Way. Let’s slow this down, let’s collaborate together, so we don’t have this big, ugly culture war.”

David Spatafore of the Utah High School Activities Association, which oversees all school sports in the state, presented the current policy on transgender athletes.

“We currently have a policy that we drafted because of what happened in the state of Idaho,” Spatafore said. “Our concern on this bill, quite frankly, is we support our policy. We will enforce law — state law or federal law — we will do that.”

“We know there will be litigation if this bill passes,” he said.

Maryann Christensen, director of Citizens for Strong Families (which is not registered with the state, but Christensen is a former director of the Utah Eagle Forum) said her “organization” supports the bill in part out of a concern a transgender female boxer “is sending opponents to the hospital with skull fractures and brain injuries.”

A then-38-year-old Mixed Martial Arts boxer by the name of Fallon Fox did send an opponent to the hospital in 2014 with a concussion and a fracture of the orbital bone. The 5’7”, 145-pound boxer retired that year.

Salt Lake City Councilperson Chris Wharton testified of his concern that the bill, if passed, would cause economic harm to the city and the state.

“Last year, a similar Arizona bill was met with opposition from 40 major companies including Amazon, Apple, Google, Microsoft, and Marriott International and some 200 local outfits including the Arizona State Tourism Association and the Arizona Diamondbacks,” he said. “Idaho is the only state to adopt a measure like HB302. That law was quickly enjoined by a federal court but not before the state suffered from NCAA opposition, taxpayer-funded travel bans, cancellation of movie productions, and Idaho businesses choosing to outsource major projects to other states.”

“The message HB302 sends is also inconsistent with Salt Lake City’s bid to host the Olympic winter games again. Utah’s existing regulations for trans athletes are consistent with IOC guidelines for international sports federations,” he said before calling the bill discriminatory, unnecessary, and harmful.

Heidi Matthews, president of the Utah Education Association, expressed concern for the mental and emotional wellbeing of transgender youth.

“Adam, Audrey, Morgan, Mica, Levi, Adam. All transitioning and all someone’s precious child, All unique and all deserving of every opportunity and dignity and respect,” she said. “These transgender students are at the highest levels of not wanting to live.”

All present voted for the substitute motion to remove college-level sports from the bill.

A motion by Rep. Waldrip to adjourn without considering the bill failed. A motion by Rep. Weight to hold the bill until a later date also failed.

The final vote of 8 to 6 was to pass the bill out of committee and onto the House floor.

Voting against the bill were Republican representatives Craig Hall (West Valley City), Dan N. Johnson (Logan), and Steve Waldrip (Eden), and Democratic representatives Karen Kwan (Murray), Carol Spackman Moss (Salt Lake City), and Elizabeth Weight (Salt Lake City).

Voting for the bill were Republican representatives Melissa Ballard (North Salt Lake), Kera Birkeland (Morgan), Bradley Last (Hurricane), Jefferson Moss (Saratoga Springs), Val Peterson (Orem), Susan Pulsipher (South Jordan), Adam Robertson (Provo), and Lowrey Snow (St. George).

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