UPDATE: Several hours after I posted this, the Utah legislature passed the bill. I think this is the final text. The changes made before passing it affected students. The focus of this post is adults, not students, so what I wrote in this post is still accurate.

The Utah State Legislature is in session, and one of the very first items they’re working on is a bill to really confuse transgender people.

Before I get into the details, here are some important caveats:

  • These rules only apply to government buildings. They don’t apply to stores, movie theaters, or anywhere else that is privately owned.
  • The rules don’t apply to intersex individuals.
  • I’m writing this Thursday evening, Jan 25, and the bill has not yet passed. The House passed a version. The Senate made some amendments. The Senate sent it back to the House so the House can consider the amended version. You can track the status here
  • The bill bans school kids from playing on sex-segregated sports teams that don’t correspond to their sex assigned at birth. I’m not discussing that in this post.
  • The bill also addresses transgender kids and school restrooms, which I’m also not going to get into. It will make the post too long. Let’s stick to talking about the adults for now.

Now, if we’re going to talk about privacy in public restrooms, I think we can all agree that the real problem with privacy is those stalls that clear the floor by 18 inches and have gaps where the doors close. You’ll be happy to hear that this bill calls for new government buildings to include unisex bathrooms that have floor-to-ceiling walls with encased and locking doors. That’s real privacy. In fact, the bill also encourages government facilities to see if they can retrofit some space into unisex restrooms. That would be great!

All right — now onto the parts that are addressed to transgender people. The bill defines “female” to mean “the characteristic of an individual whose biological reproductive system is of the general type that functions in a way that could produce ova.” “Male” has a corresponding definition: “the characteristic of an individual whose biological reproductive system is of the general type that functions to fertilize the ova of a female.”

Your sex is defined by how your reproductive system relates to ova. Intersex people are defined in Utah Code 26B-8-101, and there are exceptions for them in this bill. 

The bill originally had rules about both restrooms and changing rooms, and then the stuff about the restrooms got removed. It might get put back in (like I said, this bill has not yet passed as of 10:00 a.m. on Friday, Jan 26), but for now, the rules are about transgender people in changing rooms, like the changing room of the city pool. 

The Changing Room Rule:

To preserve the individual privacy of males and females, an individual may only access an operational sex-designated changing room in a government entity’s facility that is open to the general public if:

(i) the individual’s sex corresponds with the sex designation of the changing room; or

(ii) the individual has changed their sex on their birth certificate AND has had a primary sex characteristic surgical procedure.

(There are lots of exceptions — like for children, for people that need help, for first responders, for caregivers and so forth. The bill strives to avoid ridiculous results.)

And here’s the penalty for transgender people:

An individual who knowingly enters a changing room in violation of Subsection (1) [meaning they’re using a sex-designated changing room that doesn’t match their reproductive biology] commits the offense of criminal trespass under Section 76-6-206 if the individual enters or remains in the changing room under circumstances which a reasonable person would expect to likely cause affront or alarm to, on, or in the presence of another individual.

Restating that, I think it says that a transgender person commits a criminal trespass if they use the changing room in a way that alarms a reasonable person. If they aren’t alarming, then they aren’t committing criminal trespass. Right now, “criminal trespass” relates to flying drones and going onto someone’s property to tag it with graffiti (Utah Code Ann. 76-6-206). They’re adding alarming use of a changing room by a transgender person to that, I guess.

If a cisgender person uses a changing room in a way that causes alarm, is that also criminal trespass? I think so. If a cisgender man goes into the women’s changing room and causes alarm, he could also be charged with criminal trespass.

Because of the exceptions for intersex people, intersex people can use either changing room and cannot be charged with criminal trespass, even if they cause alarm. Instead, I assume the would just be charged with the alarming conduct, like voyeurism or public lewdness.

Now we get to the part of the bill that still needs editing because in the penalty part, the bill goes back to referring to “privacy spaces” which includes restrooms. 

The bill requires the government entity to call the police if someone makes a complaint about crimes going on in “privacy spaces.” Before this, the person in the main office at the city swimming pool wasn’t required to call the police if someone made a complaint (they could call, but it wasn’t required by law). Now they’re required to call the police. 

There are several complaints that require the city swimming pool guy to call the police, not just trans or cis people causing alarm in the changing rooms. For example, lewdness is a complaint that requires the police. If a man is masturbating in the men’s changing room, that’s lewdness and the police get called. If a man is masturbating in the women’s changing room, that’s lewdness AND criminal trespass and the police get called. And vice versa – a lewd woman in the men’s changing room might get charged with lewdness AND criminal trespass. 

The bill also has penalties for calling in multiple false reports about criminal trespass. This provision is likely intended to prevent people from harassing unalarming transgender people.

I think the better way to prevent harassment of transgender people would be to throw out this bill as unnecessary. We already have laws about bad behavior in changing rooms. Public lewdness is already a crime. Voyeurism is already a crime. Assault is already a crime. This bill seems to be saying, “if we double the penalty for causing alarm in changing rooms, people will be safer.” 

What’s missing from this bill and the discussion surrounding it is facts. How many problems are caused by transgender people using the changing room of their chosen gender? How many problems are caused by cisgender men going into the women’s changing room? How many problems are caused by cisgender women going into the men’s changing room? You would think there would be police reports, or some sort of place where complaints about behavior in pool changing rooms is collected and we could look at that information to see if a problem actually exists. Especially since this only applies to government buildings – government places have to keep records. If you slip and fall at a pool, there’s a record of that. There should also be a record of people complaining about conduct in changing rooms. What problem is this bill trying to solve?

This bill is also too vague to be enforceable. If a transgender person goes into a changing room that doesn’t match their Utah-defined sex and doesn’t alarm anyone, then that’s fine. But if a transgender person goes into a changing room that doesn’t match their Utah-defined sex “under circumstances which a reasonable person would expect to likely cause affront or alarm to, on, or in the presence of another individual” then that’s not fine.

What does that even mean? What if one person in the changing room watches news sources that do a lot of fear-mongering about trans people? If that person gets alarmed because someone they believe to be trans walks into a changing room, is that criminal trespass? Is that person a “reasonable person”? If everyone else is like, “not a big deal, sister,” then is the trans person not alarming? 

What if the person who is alarmed is wrong? What if it turns out that the person they thought was trans is actually cis? I have a friend who is six feet tall and broad-shouldered. She’s a cisgender woman. Sometimes I wonder if she gets nervous about going into public restrooms, or if she’s ever had someone be rude to her about being in the ladies room.

The assumption that this bill is built on is that if a transgender person uses the changing room that corresponds to their chosen gender, then we should all be suspicious of them.

KSL quoted the bill’s sponsor as saying, “”It is very difficult, as a woman, to constantly be told that my feelings, my daughter’s feelings … that their feelings don’t matter as much because it hurts somebody else’s feelings,” Birkeland said.

Ms. Birkeland is worried that someone who looks like a man will walk into the woman’s changing room at the city pool and insist he has a right to be there. No one voting in favor of this bill can point to a time that has happened. I’m guessing here, but what probably has happened is sometimes a masculine looking woman is in the woman’s changing room and people who watch fear mongering news sources worry that she’s going to do something alarming. 

What I think people who listen to fear-mongering about trans people don’t understand is that trans people (mostly) look like their chosen gender. Birkeland has been listening to news sources that tell her that transgender women look like big, hairy men with beards. No. Actually, transgender men look like big, hairy men with beards. Check out this 60-second video of how much this person changes after starting testosterone:

Under this bill, this individual should use the women’s changing room at the public swimming pool. This person is a “female” according to the state of Utah. I think Ms. Birkeland’s feelings would be alarmed if this transgender man walked into the women’s changing room at the city pool. Yet she’s the one that wrote the law that put him in the changing room with her and her daughter.

What will happen if a transgender man (who has not changed his birth certificate or had surgery) walks into the women’s changing room? How is he supposed to know whether or not he’s alarming? A trans man who has been on testosterone for years likely looks and sounds like a cisgender man. He may or may not have changed his birth certificate or had surgery – it’s the hormones that makes someone’s appearance change. Is he alarming people? Does it make a difference if he has biology that tends to produce ova?

Of course there are trans men who aren’t big, hairy and muscular. There are cis men who aren’t big, hairy and muscular. Judging someone’s right to be in a particular changing room based on their looks is a vague standard that will cause confusion and problems. I bet my cis friend who really wishes she was petite and dainty, instead of six feet tall and broad-shouldered, might make Ms. Birkeland nervous.

Let transgender people live their lives the way they choose to live them. This bill is unnecessary, and it’s based on false beliefs about trans people. The laws that currently exist to prevent alarming behavior in changing rooms and restrooms are good enough.

If you live in Utah, contact your elected representative and let them know your thoughts. 

  1. The bill also uses the phrase “the important government objective of protecting individual privacy”. Should protections for individual privacy be extended to transgender women as well? To cisgender women who have more masculine body proportions than what society decrees is the feminine ideal?
  2. Typically, support for laws like these splits along party lines, but protections for transgender individuals is becoming more of a bipartisan issue. I read a news report about a poll reporting that a majority of Republicans are wishing their elected representatives would move on from transgender issues (I can’t find it, sorry). In fact, one Utah Republican legislator, Senator Daniel Thatcher, is an outspoken supporter of transgender rights. The majority of comments in the ksl.com news article are things like, “why are we wasting time on laws like this?” Regardless of your feelings about transgender people, do you think laws like these are appropriate, effective, and necessary?

Comment – I’m trying to be less partisan. I tried to write this post in a way that won’t stir contention. My opinion is clear, and I don’t apologize for it, but if you think I attacked the opposing viewpoint or portrayed it unfairly, I will strive to do better if you can point out where I should have phrased something differently.