Utah lawmaker introduces transgender bathroom bill with requirement for unisex facilities

SALT LAKE CITY — Transgender issues will once again take center stage during the upcoming legislative session after one Utah lawmaker introduced a bill to restrict access for transgender individuals to restrooms and locker rooms in government-owned facilities.

The bill also includes requirements that taxpayer-funded buildings provide more unisex or single-occupant restrooms and similar facilities in an effort to increase privacy for all individuals, Rep. Kera Birkeland, R-Morgan, told KSL.com last week. Birkeland was the chief architect of a bill passed late in the 2022 session that bars transgender girls from participating in high school sports — portions of which are on hold pending the outcome of a court challenge.

Lawmakers’ previous efforts on transgender issues have brought ire from activists who say the bills unnecessarily target an already vulnerable population. A spokeswoman for Equality Utah said the advocacy group has been engaged in discussions with Birkeland but remains concerned with some aspects of the policy.

HB257, which was publicly unveiled Thursday afternoon, narrowly defines both “male” and “female,” and prohibits anyone from using a gender-designated restroom or locker room that doesn’t match their sex, unless they have legally amended the sex on their birth certificate and “undergone a primary sex characteristic surgical procedure … to correspond with the sex designation of the privacy space.”

“This will be across the board in any government-funded facility,” Birkeland said. “Schools, of course, yes. We want to make sure that in the schools, that people understand with clarity where kids should be going, what restrooms they should be using. The most important part of what restroom they should be using is the restroom that gives everybody the most amount of privacy.”

The bill defines an individual’s sex as “the individual’s biological sex — either male or female — at birth, according to distinct reproductive roles as manifested by sex and reproductive organ anatomy, chromosomal makeup, and endogenous hormone profiles.”

Male sex characteristics include “an individual whose biological reproductive system is of the general type that functions to fertilize the ova of a female,” and female characteristics are defined as a person’s reproductive system that is “of the general type that functions to produce ova.”

HB257 appears to be modeled after the “Women’s Bill of Rights,” created by the conservative-leaning nonprofit Independent Women’s Forum, which seeks to define who can be considered a woman, and could impact other areas of state law that provide protections for women by limiting them to women who aren’t transgender.

The bill requires that new construction of public buildings “ensure that an adequate percentage of all toilets and showers are single-occupant facilities.” As facilities are upgraded, HB257 would allow a 20% reduction in the number of restroom fixtures currently required in code in order to accommodate more single-occupant spaces, though it doesn’t set a hard timeline for buildings to be converted.

Birkeland said she believes most state-funded facilities already have unisex or single-stall spaces available and doesn’t expect the bill to have a huge impact on infrastructure if it passes.

“I don’t think this will really impact, in any way, the behaviors and actions of anyone because a lot of people who align with the LGBTQ community are already using the single-occupancy bathrooms,” she said. “What I hope that we can do with this is ensure that the people who are trying to use the pretext of being a member of the LGBTQ community, they can no longer perpetrate on people in these facilities because people will have a greater sense of privacy now.”

Marina Lowe, policy director for Equality Utah, told KSL.com Thursday that Birkeland’s bill and a similar proposal from Rep. Phil Lyman, R-Blanding, are still “too restricting of a bodily function that we all as human beings have to engage in” — using the restroom.

“I will say Rep. Birkeland has been very willing to express an openness to hear our concerns and to dialogue with us, and I expect that will continue,” she said. “But we do still have concerns with this version of the bill.”

Among Lowe’s concerns is the issue of enforcement. HB257 allows someone who violates the rule to be trespassed from the facility and potentially charged with voyeurism if a person’s privacy is violated.

“I don’t understand how enforcement works; there’s no process that’s spelled out in this bill,” Lowe said. “I don’t understand who has the authority to challenge it. Does everybody need to start carrying a birth certificate around with them in order to prove that they’re in the right restroom?”

Birkeland said entering a restroom for “inappropriate purposes” or with the intent to harm others would be a clear violation, but said most people who use a certain bathroom would be able to do so without raising questions.

“If you were to be using a restroom, and you go in and you mind your own business, I don’t think anyone’s going to question what your gender is,” she said.

She said her proposal also includes punishments for individuals who repeatedly make false allegations about someone’s use of restrooms, saying she wants “people to take this seriously.”

Lowe said she appreciates Birkeland’s approach of providing for more unisex and single-stall facilities rather than just barring certain people from using the restroom they prefer, as has been proposed by similar bathroom bills in other states.

“I think that’s a great approach,” she said. “At the end of the day, I think where we would find absolute agreement is that more privacy and this idea of modesty for all is the answer moving forward. I think everybody would prefer to have more privacy in a restroom, or in a changing room scenario.”

Still, Lowe said Birkeland’s and Lyman’s bills will bring even more scrutiny to transgender individuals in the state.

“This is, generally speaking, a relatively small population of individuals. And to have, year after year, the Legislature sort of focus on increasingly specific aspects of their lives probably doesn’t feel very good,” she said.

In addition to the provisions on transgender individuals and bathroom use, Birkeland’s bill includes language similar to the federal government’s Title IX law, which protects from sexual harassment in educational programs. Birkeland, who has worked as a high school referee and coach, said district policies often give boys teams preferential time slots for games and better access to locker rooms and practice facilities.

“I have three sons. I want them to have great opportunities as well,” she said. “But what we’re seeing right now is an imbalance of that.”

Although the federal law already exists, Birkeland said she wants to make it easier for people to lodge complaints when it is violated and thinks the Utah government will be more responsive to violations.