What does new federal guidance on transgender students’ participation in sports mean for Utah?
Proposed federal rules would prohibit banning transgender girls from competing on female athletic teams but allow schools to develop eligibility criteria
Proposed changes in federal rules regarding transgender students’ participation in sports drew a sharp rebuke from the sponsor of legislation passed by the Utah Legislature that sought to enact a ban on transgender girls participating in girls sports.
Rep. Kera Birkeland, R-Morgan, the sponsor of HB11, said the Biden administration “seeks to minimize and diminish women athletes across America” with the proposed rule for Title IX regulations.
“Utah stands prepared and committed to protecting and preserving women’s sports. As Utah often does, we led the way by passing common-sense and reasonable legislation to support our female athletes and allow them to compete on a fair and even playing field,” Birkeland said in a statement.
Utah Gov. Spencer Cox, during his monthly PBS Utah press conference on Thursday, said the issue is better left to the states.
“I know that every state is trying to grapple with this. As I’ve said before, we absolutely have to protect women’s sports. That’s very important. We should be compassionate and understanding to our transgender students who are clearly struggling in lots of different ways,” Cox said.
Proposed changes to federal regulations would not allow schools to categorically ban transgender girls from any female athletic team but would permit them to develop eligibility criteria intended to ensure fairness in competition and prevent sports-related injury.
HB11, passed by the Utah Legislature in the final hours of the 2022 General Session, prohibits girls who are transgender from competing in female sports sanctioned by the Utah High School Activities Association.
Cox vetoed the bill but lawmakers convened in special session to overturn his veto, passing it by a veto-proof margin.
Shortly afterward, a lawsuit was filed on behalf of two transgender girls who attend Utah public schools that challenged the constitutionality of the ban. The law is effectively on hold pending the legal challenge, although transgender girls seeking to participate in UHSAA-sanctioned girls sports can appear before the School Activity Eligibility Commission that determines on a case-by-case basis if their participation compromises fairness.
The commission was established in the version of the legislation passed later in special session as a fallback plan if the ban under HB11 was enjoined by a court order, which it was.
Under the law, the eligibility panel is allowed to ask for and assess the student athlete’s height and weight in making decisions whether a transgender girl would have an unfair advantage.
The commission has met twice this year — on March 27 and April 3 — and made one determination, which under HB11 can only be disclosed to the student, said Rich Piatt, spokesman for the Utah Attorney General’s Office.
The commission meets in closed session and its records “including any communication between an athletic association and the commission that relates to a specific student shall be classified a protected record,” HB11 states.
Cox said other states are interested in a commission model in their states “or if this is something that could be used at the NCAA level or the Olympic level to really protect the integrity of women’s sports.”
The eligibility commission is composed of people appointed by the Utah Senate, House of Representatives, the governor and the Utah High School Activities Association.
Commission members are to include: a mental health professional; a statistician with expertise in analyzing medical data; a board-certified physician with expertise in gender identity health care; and a sports physiologist.
The commission would also include an athletic association representative; an athletic trainer who serves college student athletes; one ad hoc member appointed by the athletic association in which the student seeks to compete; and a certified high school coach or official who coaches or officiates in a separate region or classification from the student’s school and in the sport in which the student seeks eligibility.
The state website on boards and commissions currently lists seven commission members.
Legal challenges to transgender athlete bans
Meanwhile, a number of states, including Utah, await court rulings on challenges to legislation that ban transgender girls from competing on girls high school sports teams.
“It’s going to be really interesting to see how the cases go. I think Idaho was the first case and they’re a couple of years ahead of ours. There are several other cases across the country so we’ll see how that all shakes out. Again, that’s part of federalism,” Cox said.
Birkeland said Utah’s statute “provides protection for female athletes and we anxiously await a court ruling. In the meantime, we have not left our girls defenseless. I remain committed and invigorated in my work to ensure radical agendas do not displace our rising generation of women.”
David Spatafore, legislative representative for the Utah High School Activities Association, the nonprofit organization that sanctions and oversees high school sports competition, said the association staff is reviewing the proposed federal guidance issued on April 6.
“We’re meeting ... to discuss that and compare that to where we are right now with the state,” he said.
According to the Department of Education, the proposed federal rule was written after two years of outreach to stakeholders.
“Every student should be able to have the full experience of attending school in America, including participating in athletics, free from discrimination. Being on a sports team is an important part of the school experience for students of all ages,” said Secretary of Education Miguel Cardona in a press release.
The proposed rule is designed to support Title IX’s protection for equal athletics opportunity, Cardona said.
Title IX is the federal law that prohibits discrimination on the basis of sex in education. It applies to all public schools and all educational institutions that receive federal funding.
Due to the pending litigation over HB11, plaintiffs’ attorneys from ACLU Utah had no comment on the proposed rule, said communications director Aaron Welcher.
Before the proposed rule can take effect, it is subject to a 30-day comment period, ending May 15.
Shannon Minter, legal director of the National Center for Lesbian Rights, and pro hac vice counsel in the Utah case challenging HB11, lauded the proposed rule.
“As a transgender lawyer who has represented many transgender athletes over the past 20 years, I appreciate this proposed rule, which will be a huge help in challenging state bans that are devastating for trans kids,” Minter tweeted.
Pro hac vice is Latin for “this time only.” Pro hac vice applications enable attorneys from out of state to be admitted to practice in a local jurisdiction for a particular case.
Transgender sports legislation
In recent years, at least 19 Republican-led states have passed laws banning transgender women or girls in sports citing that they have an unfair competitive advantage.
Recently, North Dakota Gov. Doug Burgum signed two transgender athlete bans into law, effectively prohibiting transgender girls and women from joining female sports teams in K-12 and college. The bills were passed by veto-proof majorities.
On Thursday, the GOP-controlled U.S. House of Representatives passed a bill that seeks to prohibit transgender women and girls from participating in female athletic programs on a party-line vote of 219-203.
According to The Hill, the Democratic-controlled Senate is unlikely to take up the measure, and the White House has issued a veto threat.
The bill seeks to prohibit sex-based discrimination in education — to recognize sex as that which is “based solely on a person’s reproductive biology and genetics at birth,” The Hill reported.
Earlier this month, the Supreme Court chose not to intervene in an ongoing case involving West Virginia’s law banning transgender girls from participating in girls’ interscholastic sports teams.
The court’s action came on its emergency docket, where decisions are made without full briefing or argument, and decided with little or no explanation, NPR reported.
Meanwhile, World Athletics, the international governing body for track, field and other forms of competitive running, recently announced new regulations that prohibit athletes who have gone through male puberty from participating in female world rankings competitions.
Polls: Americans oppose transgender athletes in female sports
Public opinion polls conducted in 2022 revealed that a majority of Americans are opposed to allowing transgender female athletes to compete in women’s and girls’ high school sports.
A Deseret News and Hinckley Institute of Politics poll in April 2022 found that 54% of Utahns supported HB11.
Forty-four percent said they strongly support the law, while 10% said they somewhat support it. Conversely, 9% said they somewhat opposed HB11 while 30% said they strongly oppose it. Seven percent responded “don’t know.” The poll, conducted by Dan Jones and Associates, had a plus or minus 3.46% margin of error.
Results of the Utah survey mirrored those of a similar poll conducted by The Washington Post and University of Maryland in May 2022.
It found that 55% of Americans are opposed to allowing transgender female athletes to compete with other women and girls in high school sports. The national poll surveyed 1,503 adults, the majority of whom self-identified as sports fans and parents.
Around 30% of Americans agreed that transgender women and girl athletes should be able to compete at any sporting level and 15% had no opinion, according to the Washington Post poll.