Utah Legislature gives final approval to transgender bathroom bill after last-minute tweaks

Rep. Kera Birkeland, R-Morgan, speaks during a conference committee about HB257 at the Capitol in Salt Lake City on Friday, Jan. 26, 2024. The Utah Legislature approved the controversial transgender bathroom bill.

The Utah Legislature on Friday approved a transgender bathroom bill following late discussions between representatives and senators to resolve sticking points.

The House initially declined Senate changes to HB257, which moved quickly through both chambers following a flurry of back-and-forth adjustments. Members from both chambers conferenced following the House vote to resolve the differences between the two bodies.

Six lawmakers met briefly before adopting and approving a fifth substitute version of HB257, which bill sponsor Rep. Kera Birkeland, R-Morgan, said makes it “extremely clear” that students cannot be charged simply for using a restroom that doesn’t align with their sex designation at birth.

“We never wanted any child to be given a criminal record just for being in a restroom,” Birkeland said.

Senators approved HB257 on Thursday, after reversing earlier changes to reinstate restrictions on transgender individuals using restrooms that don’t align with their sex designation at birth. The bill applies only to government-owned buildings, not private businesses.

Although floor sponsor Sen. Dan McCay, R-Riverton, on Thursday highlighted the lack of enforcement for provisions excluding transgender adults from restrooms that don’t match their gender identity, he was more forceful on Friday, saying transgender individuals should not use a restroom that differs from their sex at birth.

“If there’s questions,” he said, “they ought to find a non-gender specific one.”

The bill includes a criminal trespass charge for individuals who go into a changing room or locker room that does not match their identity unless they first undergo gender-related surgery and change the sex on their birth certificate. In restrooms, an individual can be charged with enhanced penalties for voyeurism, lewdness or loitering if in a space that doesn’t correspond with their sex designation.

McCay did not go so far as to say that a person would be charged simply for entering a restroom in violation of the bill but said they do so at their own risk.

“Going into a bathroom that is not consistent with your … birth sex, you are putting yourself at greater risk,” he said. “I think that’s the best way for everybody to look at it and say, ‘How do I avoid risk?'”

Equality Utah, the state’s largest LGBTQ organization, issued a statement Friday afternoon thanking lawmakers for ensuring that children in schools would not face criminal charges, but the organization said it did not support the bill as a whole.

“These are issues we raised and asked legislators to amend. We are grateful for their responsiveness,” the organization stated. “We still hold the position that transgender Americans have the freedom and liberty to access facilities within public spaces. We are sorry for the fear and distress that many within the community are experiencing as they read these bills. We will continue meeting with lawmakers throughout the session to advocate on their behalf.”

Proponents of the bill have said it is important to increase privacy for women in restrooms, but critics have said a policy should focus on behavior, not on the gender identity of a person.

“I think the most important part for all of this is trying to look at the greater population, everybody here, and trying to come up with a policy that matches everyone’s interest,” McCay told KSL.com, when asked why the bill restricts access to restrooms for transgender people rather than simply criminalizing inappropriate behavior in restrooms. “I have spoken with many women who do not want to be confronted with men who look like men, or men who look like women but are men, in their bathroom.”

“Eventually,” McCay said, “the government has to draw a line somewhere. It’s not anybody’s favorite thing to do, and I wish we weren’t having this debate, but here we are.”

Senate Minority Leader Luz Escamilla, D-Salt Lake City, said the Democratic caucus “will continue to advocate better public policy,” and promised continued advocacy for LGBTQ Utahns. She pointed to the upcoming 2024 elections as a chance for voters to weigh in if they’re frustrated by the results.

“This is not over. This is part of public policy and how things work and … there’s going to be another session next year,” she said.

House Republicans met in a caucus meeting Friday morning ahead of the votes on the bill, presumably to work out their position. House Speaker Mike Schultz, R-Hooper, told reporters that House leadership wasn’t planning to propose changes to the bill before it came to the floor but said the caucus was working through a couple of technical concerns.

He acknowledged that lawmakers “made a mistake a couple years ago,” referring to another controversial bill banning transgender girls from high school sports — which was drastically amended just hours before midnight on the final night of the 2022 session.

Speaking to the rash of recent changes to the bill, Schultz said, “That’s the beauty of doing it early in the session.”

HB257 on Friday passed the Senate 20-8 before advancing through the House 58-16. Two Republican senators — Sens. Daniel Thatcher, R-West Valley City, and Todd Weiler, R-Woods Cross — joined with all Democrats in opposition. Reps. Marsha Judkins, R-Provo, and Anthony Loubet, R-Kearns, were the sole “nay” Republican votes in the House.

The bill will now head to the governor’s desk for his signature. Gov. Spencer Cox has previously expressed support for the policy — particularly a provision requiring more unisex or single-stall facilities in newly built government buildings — but his office declined to share the governor’s plans for the bill.

Schultz and McCay both said that they had spoken with Cox and that they hadn’t heard any major concerns.

“I’m fairly confident that we’ve gotten the policy to where it needs to be for the state,” McCay said.