ACLU Utah and Equality Utah publish FAQ about Utah’s new bathroom law

As part of ongoing legislative actions aimed at transgender individuals nationwide, the Utah State Legislature passed House Bill 257, dubbed Utah’s Bathroom Law, and Utah Gov. Spencer Cox signed it into law within days of the session’s start. Certain provisions of the law were enacted immediately, and those pertaining to public school and governmental compliance are slated to come into effect on May 1.

ACLU Utah and Equality Utah joined forces to draft an FAQ about the law, its implementation, and its challenges to “equal protection under the law.”

“The ACLU of Utah and Equality Utah are committed to ensuring that transgender people in
Utah enjoy equal protection under the law,” the statement said.

“Everyone in Utah and the United States enjoys the right to life, liberty, and happiness,” the statement continued. “We recognize that the enactment of HB 257, ‘Sex-Based Designations for Privacy, Anti-Bullying, and Women’s Opportunities,’ has been exceptionally difficult for transgender Utahns. And many are wondering how their lives will be changed by the new law related to access to bathrooms and changing facilities.”

The organizations partnered to craft the FAQ to interpret the new law for community members and for city, county, and other government officials.

The group calls the bill’s title, “Sex-Based Designations for Privacy, Anti-Bullying, and Women’s Opportunities,” misleading, saying it “bars transgender, non-binary, and gender non-conforming people from accessing privacy spaces and other facilities in public schools and government-owned or
controlled spaces.”

“Despite the heated rhetoric around this legislation, our legal analysis of HB 257 has determined that the scope of the new law is, in fact, more limited than the news coverage of this bill would suggest,” the document states.

The primary impact for transgender and non-binary youth will be in public school bathrooms,
changing rooms, and locker rooms, the groups say. Outside of K–12 public schools, they say the bill’s impact will only be in changing facilities in government-owned buildings, most often found in recreation
centers owned and operated by cities and counties.

“There is no legal consequence in the new law for transgender or non-binary people in Utah using restrooms in government-owned buildings that match their gender identity,” the statement says. “There are only penalties for people who use the bathroom for improper purposes or who engage in prurient behavior.”

As the bill went through changes during the first several days of the legislative session, it was changed to no longer apply to bathrooms and changing facilities in privately owned places like restaurants, hotels, theaters, malls, etc.

“People in Utah should not be forced to live in fear of discrimination or surveillance when using facilities that match who they are,” the statement continues. “While HB 257 challenges the dignity of transgender, non-binary, and gender non-conforming Utahns, there are still many state and federal laws that provide protection for LGBTQ people.”

Here are some abbreviated FAQs included in the document, edited for brevity. The full FAQ document is available here.

How does HB 257 define a person’s sex?

The law assigns sex-based designations to a person based on HB 257’s definitions of the terms “male,” “female,” and “intersex.” Below is a listing of all of the new definitions HB 257 has added to the Utah Code.

Male is now defined as “the characteristic of an individual whose biological reproductive system is of the general type that functions to fertilize the ova of a female.” Moreover, man means “an adult human male,” and father means “a parent who is of the male sex.”

Female “means the characteristic of an individual whose biological reproductive system is of the general type that functions in a way that could produce ova.” Further, woman means “an adult human female” and mother means “a parent who is of the female sex.”

Intersex is “being born with external biological sex characteristics that are irresolvably ambiguous; being born with 46, XX chromosomes with virilization; being born with 46, XY chromosomes with undervirilization; having both ovarian and testicular tissue; or having been diagnosed by a physician, based on genetic or biochemical testing, with abnormal sex chromosome structure, sex steroid hormone production, or sex steroid hormone action for a male or female.

What spaces does HB 257 regulate?

The new law applies only to public schools and government-owned or controlled facilities, such as state capitol buildings or city and county buildings. In a public school, HB 257 restricts access to bathrooms, changing and locker rooms. In government-owned buildings, the law covers only changing and locker rooms, not bathrooms, unless they are within a changing or locker room.

What does HB 257 mean for access to restrooms and changing rooms in public schools?

The law’s sex-based distinctions apply to sex-specific restrooms, locker rooms, shower rooms, and changing rooms in public schools. A person may not enter spaces that do not correspond with their sex as defined above.

A student and their parent or guardian may work with a school administrator to develop a privacy plan that will allow reasonable access to a unisex or single-occupant facility or faculty restroom or a staggered schedule for the use of a sex-designated privacy space. Students may also work with a school to access school sex-designated privacy spaces that align with their gender identity if the students have “documentation of a medical treatment or procedure that is consistent only with the sex designation of the privacy space.”

HB 257’s sex-based distinctions in public schools do not apply to intersex individuals or unisex and single occupancy facilities.

What does HB 257 mean for private K-12 schools?

HB 257 only impacts K-12 public and charter schools. The law does not apply to private schools.

What does HB 257 mean for publicly owned or controlled spaces other than K-12 Schools?

Generally speaking, only changing and locker rooms are restricted in government-owned buildings. The law makes it a crime for a person to enter a sex-designated changing room that does not correspond with that person’s “biological sex” and increases criminal penalties for other crimes committed in that situation. This does not include stand-alone restrooms, only spaces designated for multiple people to dress or undress, such as fitting rooms, locker rooms, communal shower rooms, and restrooms that are contained in or attached to changing rooms.

There are no express prohibitions or criminal penalties in HB 257 relating to using stand-alone restrooms in publicly owned or controlled facilities. The law also does not include a privacy space only accessible to employees of a government entity or any area that is not normally accessible to the public.

A person may only access a sex-designated changing room if the person’s “biological sex” corresponds with the sex designation of the changing room, or the person has legally amended their birth certificate and undergone a primary sex characteristic surgical procedure to correspond with the sex designation of the changing room.

A minor child or an adult who requires assistance may access a changing room that corresponds with the sex designation of a parent, guardian, relative, or caretaker.

HB 257 does not apply to privately owned spaces like malls, restaurants, or movie theaters.

HB 257 does not impose documentation for an individual to access a covered restroom or privacy space. That said, the law requires government entities to contact law enforcement if they receive complaints or allegations about criminal behavior in a privacy space, which includes entering a sex-designated changing room that does not correspond to one’s “biological sex.” Accordingly, people that others suspect “do not belong” in a particular “privacy space” might be subjected to interactions with law enforcement even when the law does not cover those spaces.

The law makes no provision for individuals other than law enforcement officers to investigate or otherwise confront anyone for any purpose in relation to the bill’s prohibitions. If confronted by someone other than law enforcement about using a restroom or changing room, the groups advise you to use your best judgment about how to react and stay safe, given all of the circumstances in that situation.

If you are taken to jail, will your housing be aligned with your gender identity?

A separate law passed about jail and prison housing says inmates are presumptively assigned housing consistent with their “biological sex at birth.” An inmate may be housed consistent with their gender identity at the direction of the prison or jail staff or based on a request by the inmate, so long as various factors are met.

Are trans women still permitted to seek assistance from women’s shelters?

Under current law, trans women will still be able to access women’s shelters and rape crisis centers. If a center is publicly owned or controlled, however, the criminal provisions regarding changing rooms would still apply.

Do I need to have paperwork to use a public restroom?

No, not as a matter of law. The groups do not read HB 257 as criminalizing or otherwise prohibiting people from entering and using a stand-alone sex-designated restroom that conforms with their gender identity in a publicly owned or controlled building. Accordingly, you should not be subjected to any encounters with law enforcement for entering the correct restroom, and there is no need to have paperwork regarding your sex or gender identity. If you do encounter law enforcement officers in that situation, document as much about the situation as you are able and contact the ACLU of Utah immediately.

I am passing through the airport to catch a connection. Do I have to use the restroom different from my gender identity?

No. We do not see any provision in the bill that prohibits using a restroom.

Do I have to leave a restroom if I am challenged?

As mentioned, other than in the K-12 setting, we do not see any language in HB 257 that prohibits people from using sex-designated restrooms that align with their gender identity. Moreover, as explained above, HB 257 anticipates that only law enforcement officers are authorized to interact with people regarding the bill’s prohibitions.

Will I be able to use public restrooms where I am employed?

Yes, you can continue using the public restroom where you are employed.

If you work in a privately owned building, HB 257 does not apply.

If you work in a publicly owned or controlled building, you are allowed to use a stand-alone sex-designated restroom that is open to the public regardless of your sex. Moreover, if your restroom is not accessible to the general public, HB 257 also does not apply.

We have a changing room for gym usage at work. Can I use the room aligned with my gender identity?

If the gym is private, HB 257 does not apply. If the gym is in a publicly owned or controlled building, and is open to the general public, the law makes it a crime to enter a sex-designated changing room that does not align with your “biological sex.” If the changing room is not open to the general public, HB 257 does not apply.

When does HB 257 take effect?

Gov. Cox signed HB 257 on January 30, 2024, and most of the bill went into effect on that date. However, the requirement that schools and government facilities comply with the law was delayed until May 1, 2024.

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