Now that a state court judge has temporarily halted enforcement of a part of HB11, which banned transgender girls from competing in girls high school sports, attention shifts to a soon-to-be empaneled commission charged to determine students’ eligibility for school activities.

The commission was created under a different section of the legislation, sponsored by Rep. Kera Birkeland, R-Morgan.

On Friday, 3rd District Court Judge Keith A. Kelly enjoined Part 9 of the law — language added to the bill in the waning hours of the Utah Legislature’s 2022 General Session that sought to ban transgender girls from competing in high school girls sports.

Meanwhile, Section 10 of HB11, which establishes the School Activity Eligibility Commission, stands.

Utah Senate President Stuart Adams, R-Layton, in a statement, described the commission as “a first-of-its-kind solution, a data-driven commission that will help ensure female athletes can continue to compete in a fair environment.”

He continued, “With the commission, we are aiming to protect equitable and safe competition while preserving the integrity of women’s sports. The commission will be constituted in the coming weeks.”   

The commission will include a medical data statistician, a physician with expertise in gender identity health care, a sports physiologist, a mental health professional, a college-level athletic trainer, a representative of an athletic association and a rotating member who is a coach or official in the sport relevant to a particular case the commission considers.

Birkeland said in a statement that her intention has been “to protect and preserve girls sports.”

“Although the judge did not rule in our favor, female athletes can still be assured they can compete fairly as we will soon have a commission in place,” she said.

Sue Robbins, of Transgender Education Advocates, said in an interview that she was “very happy in the ruling. I see this as an affirmation that excluding transgender youth on the whole is discriminatory and will be found illegal and every case. The judge specifically made statements about the exclusion being a reason why he feels that this lawsuit will be successful.”

Robbins said more needs to be done to ensure the eligibility commission outlined in HB11 is “completely appropriate.” She said she, too, wants a fair playing field for girls.

Transgender girls are girls so we should have a different discussion,” she said.

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A statement from the plaintiffs challenging HB11 on the basis it is unconstitutional and discriminatory said, “The court held that the new law likely violates the equality guarantees of the Utah Constitution by singling out transgender girls and barring them from competing on girls’ teams regardless of their individual circumstances.”

The statement was issued jointly by ACLU of Utah, the National Center for Lesbian Rights and legal counsel from the law firm Wilson Sonsini Goodrich & Rosati.

“We are very pleased by the court’s decision,” said Christine Durham, former Chief Justice of the Utah Supreme Court and senior of counsel at Wilson Sonsini.

“Thus far, every court to rule on a similar ban has barred it from taking effect, due in part to the serious harms caused by excluding an entire group of students from such an important school activity. We read today’s decision as recognizing that the law is not only discriminatory but puts Utah children at needless risk of lifelong harm,” Durham said. “We look forward to moving forward with the case and securing a permanent decision blocking the law from taking effect.”

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The Utah High School Activities Association, one of the lawsuit’s defendants, is reviewing the judge’s order. Its executive staff will meet next Monday with the association’s attorney to determine its next steps, said UHSAA legislative liaison Dave Spatafore in an interview.

The judge’s order essentially means for the time being, “there’s no ban in place and the state commission would be the governing body to determine for public school students if they can participate or not,” he said.

As of Wednesday, with the ban still in place, no student identifying as transgender had registered to participate in UHSAA-sanctioned sports, Spatafore said.

If a student registers now, the commission would have 30 days after it is notified to conduct a closed-door meeting to consider their eligibility, the bill states.

Equality Utah, in a statement, said it will closely watch the state’s pivot to HB11’s commission but “today celebrate the fact that transgender girls are not barred from the benefits of playing sports in school.”

The statement by Equality Utah’s executive director Troy Williams and policy director Marina Lowe said “Judge Kelly properly recognized that HB11’s ban discriminatorily targets transgender girls, and that its enforcement would have led to substantial harm to the transgender girls who want to participate in school sports in Utah.”

Utah Gov. Spencer Cox vetoed HB11, but his veto was overridden by state lawmakers who met in special session in late March.

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Cox’s spokesperson, Jennifer Napier-Pearce, said Friday, “The governor is reviewing the opinion including his responsibilities under current law.”

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Utah Pride Center co-CEO Jessica Dummar said in a statement that the injunction is “very narrow,” addressing only the ban on transgender student-athletes’ participating in sports.

“While parts of HB11 have been mitigated, the injunction fails to shield transgender girls by allowing a commission to make a determination whether or not a transgender girl may play. The Utah Pride Center still opposes HB11 in any force.”

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Sen. Dan McCay, R-Riverton, in a statement, said although the court chose to stay the ban, “the commission will help protect female athletes and allow transgender students to play without creating a competitive disadvantage.” 

He added, “Female athletes should not have to worry that they will be eliminated from future athletic opportunities because of biological differences.”

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