For the fourth year in a row, the Utah Legislature appears about to pass another bill that targets the transgender community. 

A bill that would require transgender students at public universities to live in dorms corresponding with their sex at birth, sponsored by Rep. Stephanie Gricius, R-Eagle Mountain, passed Senate on Thursday. It faces just one more vote in the House before receiving final legislative approval. 

Opponents blasted HB269 for targeting the transgender community, creating potential litigation and legal concerns, and as government overreach. The bill easily passed the Senate 22-7 in a near party-line vote. 

During Wednesday’s debate of the bill, Sen. Kathleen Riebe, D-Cottonwood Heights, criticized the Legislature for using a single case that “blew up on social media” to create new policy. 

Riebe was referring to a viral social media post from the mother of a Utah State University student who complained to the school because her daughter was sharing a common space with a transgender resident assistant, who had been randomly assigned to live in the dorm.

“We hear one case blowing up social media, and we’re creating a law — a heavy-handed law — to change policy that’s worked for generations. If we don’t believe social media should be guiding our actions, then this is a bill that shouldn’t be guiding our actions,” Riebe said. “Our universities have done a fantastic job working to make sure every student’s as safe as they can, and I believe that this is overreach, and we should allow our universities to rectify these situations.” 

Republican Sen. Dan McCay, R-Riverton, told lawmakers he was concerned that there were no protections for students who live in private housing when it acts as an extension of the universities.

“My concern is that there isn’t a remedy for those individuals that have that (random roommate) assignment,” he said. “Even though it’s private property … I would say 90% to 95% or more of those students all are university-based or at a state entity, and so, having no protections in there makes me a little bit concerned.”

Democrats bring up legal concerns

Sen. Luz Escamilla, D-Salt Lake City, brought up constitutional concerns surrounding the Equal Protection Clause of the 14th Amendment, which requires states to treat people equally under the law.

Escamilla questioned a provision in the bill that would still restrict a transgender person from living in a dorm of their choosing even if they have a birth certificate that has a changed gender marker and undergone surgery.

“If that person had already an amended birth certificate and has gone through that transition of surgery, how is that not an equal protection violation when that person does not match where you’re going to send them?”

Utah House passes bill changing university housing policies for transgender students

Sen. Brady Brammer, R-Pleasant Grove, answered and said he didn’t know if it was appropriate to do a legal analysis on the bill.

“I would say that it is overall from a legislative standpoint, it is not an equal protection violation, because the designation between male and female has been upheld in court in almost every circumstance, and it is not tied to the genitalia of the person, it is tied to their genetic makeup at the time of birth,” Brammer said.

Escamilla said when someone has gone through the defined legal process of fully transitioning, including surgery and changing the gender marker on their birth certificate, the genetic piece is not clear.

“The impact is so big,” she said. “I do believe there may be an equal protection piece because otherwise, you’re looking at these individuals who have gone through transition … why wouldn’t they not be then seen as that complete person that they are under that new place?”

Sen. Daniel Thatcher, R-West Valley City, was the only Republican to vote against the bill alongside Democrats. He cited a U.S. Supreme Court ruling that states gender necessarily includes gender identity, and therefore any infringement that would be prohibited on gender is also prohibited on gender identity.

In a 6-3 decision in 2020, the U.S. Supreme Court ruled in Bostock v. Clayton County that firing people for their sexual orientation or gender identity is sex discrimination, which is prohibited under Title VII of the Civil Rights Act of 1964.

“It is my belief that just like many of the other bills that we have passed that infringed on gender identity, this will also be unconstitutional,” Thatcher said. “But the damage isn’t necessarily the bills that we pass. It’s the messages that we send, and sometimes we pass bills because they are messages.”

Brammer, in his summation, addressed Thatcher’s concern.

“That was a very narrow decision that was limited only to Title VII employment situations,” he said. “I’ve read the case. It’s not applicable to these situations in any way, and (the justices) were very careful to make sure that it was not, and to a large extent, that’s why the Supreme Court has taken up very similar cases in the sense of transgender surgeries that they’ll be deciding in June.”

The Supreme Court is expected to rule this summer on United States v. Skrmetti, a case about medical treatment for transgender children. Utah banned gender-affirming care for minors in 2023.

As the bill was discussed again on Thursday, Sen. Jen Plumb, D-Salt Lake City, said the last several years of legislation targeted toward transgender individuals have made that community feel isolated.

“It does break my heart on some degree, that every year for the last four years, we have had very targeted legislation toward them,” she said. “They will never be legislated out of existence. They will be adored, loved and treasured by some of us for the rest of all of our lives.”