The following first appeared in Public Square Magazine.
The flurry of nationwide coverage of Utah’s new transgender sports law, HB 11, was more confusing than enlightening. Many editorial opinions echoed Governor Cox’s complaint that “the bill was substantially changed in the final hours of the legislative session with no public input.” But why would the legislature make such an unsavory, irresponsible move? Merely because, as Cox implied, the legislators lack “kindness, mercy, and compassion?” But this is the same legislature that, in 2015, outlawed employment and housing discrimination on the basis of sexuality or gender identity. And as many have been keen to point out, Utahns have become even more accepting in their attitudes toward the LGBT+ community since then, which attitudes would likely carry over to their representatives. It just didn’t add up that HB 11 was a clear case of malice and legislative subterfuge. For many of us, it seemed much of the media coverage was an advancing a particular narrative more than seeking the full picture of truth.
So I went to the source: Representative Kera Birkeland, the chief sponsor of the bill. Though she already published an op-ed partially responding to the Governor’s accusations, she was kind enough to answer my questions in much greater detail than space allowed in that piece. Though many will still disagree with her on the policy of the bill, I hope they will be open to understanding her side of the story. It turns out this isn’t a case of shady politicians acting villainously, which is good news for everyone.
I am not a Utahn, and so don’t have a direct personal stake in this law. But I’m troubled to see people—neighbors and colleagues—making accusations against each other based on simplistic narratives and incomplete understandings. I’m even more troubled to see journalists amplifying those accusations. Demeaning an opponent’s character is not a good-faith argument. Printing dramatic statements that over-simplify suicide’s causes and promote suicide contagion is troubling no matter where it appears. I hope this interview lowers the temperature of the conversation and increases understanding of a difficult issue.
This interview has been edited for length and clarity.
CH: What are you hearing from constituents, especially parents, about this law?
KB: Overall, support—overwhelmingly, with over 80% supporting what we’ve done with House Bill 11. And that support comes from constituents all across the political spectrum, including some who have transgender children or are transgender or LGBT+ advocates. The majority do support the legislation.
One mother I spoke to recently talked about how her child who identifies as transgender isn’t served by people participating in sports outside of their sex. This woman’s child has made changes, and with those changes come consequences to certain activities that they participate in a different way now. When they force their identity on others, it actually ends up hurting the community at large. I know that there are others who will disagree, and they are entitled to do so, but that’s the stance of this mother.
We want to have people accept our kids. That doesn’t mean that our kids get to be accepted in anything and everything they want to do now. We have to learn to not pick battles that end up hurting us in the long run.
CH: How do you feel about the media coverage of this legislative process? Has the coverage been fair in your mind?
KB: Very few media outlets have been fair; most have been slanted. They seem to want tension, not facts.
There are some that just take statements and just share everyone’s statements, and so that’s factual. But a lot of the media, they’ve tried to push the narrative that everybody hates House Bill 11 and if you support it, you’re not compassionate. And really, it’s that divisiveness that I see coming from the media that is the most disheartening—that they won’t just let people share their stories and tell their views. They have to twist it.
It’s interesting what they pick and who they praise as courageous. They seem to want to just erase the fact that there are 35,000 girls out there that want to be heard on this as well—young women who in so many ways are just being glossed over.
Even at our rally last week, we had a couple of girls who were there and extremely brave (along with a couple of girls who wrote statements because they weren’t comfortable being there). Those few girls were brave enough to speak at the rally. But many others have come and talked to me or called and messaged me privately in support and appreciation for this effort, along with their parents and their coaches.
CH: The Deseret News Editorial board called HB11 a “political ploy” that is “nothing more than an effort to follow a nationwide conservative trend” and a “box to be checked, with an eye toward elections,” as well as an attempt to “score political points without consideration for the consequences to transgender students.” How do you respond to this? Is this an accurate description of your motivations?
KB: I ran this bill last year, long before elections. I ran it because parents (including parents of transgender kids) wanted something done. Once again, the media is trying to create a divide. But why?
With the Biden administration in control of the White House, I think there are enough issues that we Republicans could focus on to serve up “red meat,” if that’s all we wanted to do. … To me, it’s comical that they think that any legislator is just dying to jump into these extremely controversial topics.
Being a high school basketball and football official, I talked to a lot of parents and kids throughout the years. And when a parent came to me who had a transgender child and said, “My kid’s gonna be playing sports in a few years. What’s the policy? How do I make sure that she’s accepted when she gets here?”—that’s what got my mind going.
This mother doesn’t necessarily agree with the legislation we put together, but when I was first appointed to the House of Representatives, this was something that was on my mind—what do we have in place for when this happens? And that was long before elections, and long before it became a national talking point because Lia Thomas broke the NCAA records. This is something I wish all those accusing the Utah Legislature of being reactive would understand. Perhaps your elected leaders are reacting responsibly—and not sticking our heads in the sand and saying, “We’re fine. The status quo is going to be just fine.”
CH: You and others supporting the legislation have been attacked on your own character: Governor Cox’s call to err on the side of “kindness, mercy and compassion” could be read as hinting this effort is not that, and SLC Mayor Mendenhall has insisted you and other leaders are “playing politics with children’s lives” and seem “intent on going out of [your] way to persecute and punish you just for being who you are.” How do you respond to these critiques?
KB: Clearly they don’t see what is happening now. Going along with the status quo is not loving or compassionate. It’s harmful to girls and transgender youth.
It’s frustrating to hear the media continue to talk about compassion when, quite frankly and to be blunt, it’s the media who’s sending anything but a compassionate message to transgender youth. It’s the media and so many who oppose this legislation who are telling kids—and insisting in all their public rhetoric—that they’re not welcome. I don’t know a single representative or senator who has said, “We don’t like transgender youth and you’re not welcome in our state.” No, it’s been the opposite.
What I’ve heard from fellow legislators is much more of this: “Look, what we have here is divisive. We have a lot of parents really concerned about transgender kids participating in their daughters’ sports, and so we need to address this to bring the temperature down on this issue.” But then the media flips it and says, “Oh, it’s because they’re bigots.”
It’s these journalists, in my honest opinion, who are driving the harmful, uncompassionate message. I don’t think it’s compassionate to stick with the status quo, and I’ve said that all last year and this year. Because the more times we have stories like Lia Thomas, the more times that there are kids who are biologically male, but who end up competing against girls and being successful and taking away opportunities from girls, the more anger and frustration it’s going to create in our communities.
All this has led me to believe some people are hiding under this barrier of “compassion” to push an agenda and a narrative that is actually going to cause more harm. And to be candid, it’s often stirring up controversy that sells their papers. It’s the controversy and the divisiveness that keeps them relevant. And so despite all these accusations, I believe that our legislature is trying to act in good faith and do its best for all of the people in Utah.
CH: The bill includes a provision defining “sex” as “genetics and anatomy at birth.” Do you think some people oppose the bill because they don’t want that written into Utah law?
KB: I am sure there are those who don’t like that, and I understand why they’re pushing back. But it’s important that we stand behind basic science and that we get this correct. Yes, there are small percentages of kids who may have the XXY chromosomes or other different things that can make it complicated for some kids; but for the vast majority, I think it’s important that we affirm basic science and biology reflecting the fact that sex is based upon your identity at birth.
Now, if you’re part of the tiny minority that has a different genetic makeup as far as not being just XX or XY, then your identity and your sex can change in the eyes of Utah law. But for the overwhelming majority of the population, it is one or the other. The fact that we can’t define what a woman is concerns me (some are now telling us not to say “mothers,” and instead to call them “birthing people”). And it’s important to me, as a woman who’s seeing that we are basically trying to take away what womanhood is, to share my belief that God has created women, and to stand up for what He’s created.
CH: A lot of coverage of the bill has focused on the fear that trans-identifying kids could commit suicide because of it—with the Deseret News quoting a former Bishop claiming “the reason they’re committing suicide is that they’re being persecuted by people who don’t want them to be able to participate in society” and Salt Lake City’s mayor and city council insisting “this bill will tragically and unnecessarily add to those statistics.” I’m among those concerned this coverage is violating the principles designed to protect against suicide contagion—you should never report that suicide can be explained by a single factor, or imply that vulnerable kids are helpless against people who hate them. How do you respond to that concern?
KB: First of all, anyone who is hurting and considering suicide needs to get help and support. We must always be kind and compassionate. Any child who’s dealing with suicide issues—who’s contemplating it, or who is friends or family with those contemplating it, should get that help and support. As someone who is close to people who deal with mental health issues, I’ve been an advocate for funding suicide prevention programs and supporting all youth, regardless of their background or reasons for their problems. Whatever it is, let’s get you the help you need.
But let’s be clear: There are 24 activities under the Utah High School Activities Association (UHSAA) that all youth can participate in. Five of those activities are women’s only categories. That leaves 19 activities available for anyone to stay engaged and involved in. And this law does not stop them from participating and competing in the other 19 activities. And this policy does not tell transgender youth that they can’t participate at all with girls’ teams. In fact, it says they can participate, just not compete.
But instead of the media talking about, “Here’s the activities that you’re welcome to participate in. Here’s where you can go to build relationships and to have camaraderie,” they’re focusing on just those five that are women-only, single-sex categories and essentially saying, “Because they don’t want you here, you are completely justified for feeling depressed and feeling hopeless.”
I think it’s appalling—the behavior and the talk to me are appalling and harmful. Those who are telling kids that this bill hurts them are the ones doing the harm. This, to me, is negligence on the part of those reporters.
CH: If you could go to lunch with a trans-identifying youth who is upset about this law, what would you say to help him?
KB: First, I would make sure this youth’s okay. Find out what he or she is in need of and make sure they have the resources needed if they get in a spot where they feel like they’re hopeless. Do they know their options in that area?
But then after that, I think it’s important that everyone, especially these youth, understand there are 19 activities that are completely available for any youth to participate in. And even on the girls’ teams, if this is something that, say, is a transgender-identifying youth that wants to play on the girls’ teams, let’s talk about your participation level. There are a lot of girls who get cut, who want to play, but they get cut for various reasons. That’s part of life, whether you’re transgender, cisgender—whatever your situation is, no one is guaranteed a right to play high school sports, so never let that be a determining factor on your worth.
But even with those five girl-specific activities, you can still be involved. If you really just love the sport of basketball and you want to be with the girls, you could be the team manager. You can practice with the girls. You can participate in inter-squad games and things like that that are still fun and have a purpose.
We want to respect your choice to transition at the same time that we’re respecting the girls’ opportunity to thrive and be the most successful they possibly can be. And I’ve had a few people who have reached out, and when I explain it to them that way, it really brings down a lot of the anger and rage because they recognize, “Okay, that’s somewhat logical. There are choices and consequences, and that doesn’t mean there’s no love. It just means that youth identifying as transgender need to find their place within the decisions we’ve made as a state and community.”
CH: You wrote in the Deseret News about receiving “death threats, profanity-laced voicemails, and harassing text messages, social media posts, and emails.” What has that been like? How has your family been affected?
KB: It’s unfortunate that those who claim they want love, compassion, and tolerance are the least tolerant of thoughts and opinions that differ from theirs.
I’ll be honest with you, today, it’s been a harder day … I’ll try not to be emotional. It’s really hard when you have to sit down with law enforcement and talk about a safety plan for your kids because this “tolerant” group who “just wants compassion” threatens your own children. It’s hard—it’s really hard. I’m supposed to say “it’s okay, they don’t bother me, it doesn’t bother me,” but that’s not real, and I’ve been trying to be honest and real through this whole process, and so I will admit that it’s hard.
Would I change anything? No, I wouldn’t. Would I do it all again? Yes, I would. But it’s hard. I don’t say this because I want sympathy. I say it because I think it’s important that people understand that sometimes we pay a price for doing what’s right. The media will stand behind someone whose price may be losing an election as if that’s really courageous, but there are worse things than losing an election. I’m not saying I’m courageous by any means, and please don’t misconstrue that. It’s just eye-opening to me to see how far off we are as a society that on one hand we claim we want only compassion, and discrimination shouldn’t be allowed, and yet we also will scream and yell and threaten the lives of kids just because of who their mother is and what she is doing. It’s interesting to watch it unfold and it makes me kind of sad, but I understand my responsibilities, I understand the choices I made, and I stand behind them. I just have to press forward.
CH: I’m a woman, but I’m not all that athletic. I’ll never compete for an Olympic medal or an NCAA championship. Some of my friends would add, they don’t even like or care about sports. Why should we care about this issue?
KB: I often hear that I should focus on “real women’s issues.” Did you know that it’s estimated that over 80% of the female executives at fortune 500 companies played high school sports? Supporting and protecting girls’ sports creates an investment in the economic health of Utah’s future. It reduces the gender pay gap. Girls who play high school sports are also less likely to have an unintended pregnancy or stay with an abusive spouse. I would also highlight the fact that we have so many women in government positions who played high school sports. If we care about women’s issues, we need to care about and preserve women’s sports.
We cannot fix every issue with the government, but what we can do and what we should do is provide the best opportunities for women in our state. And sports, we know, is one of the best ways to teach women resilience, commitment, and raise their self-esteem. It has so much value that if we don’t preserve this for them, we will start to see a greater decline for women across our state and our nation, and so this does matter a great deal for women everywhere.
CH: Some are promoting the concern or threat that this is going to hurt Utah’s economy—e.g., “You legislators are signaling that Utah is not a welcoming, nice state and will drive business away.” How do you respond to that?
KB: Well, I would say that when we support women, and we support our youth, we are setting up our state to be one of the best economies in the nation. These girls who are seeing us fight for them right now, they will add more to our economy over their lifetime than any big event. And quite frankly, I’m not as interested in what outside-of-our-state-groups want for Utah. If companies and groups are saying, “Well, we don’t want to go to Utah now,” then don’t—because we have enough ingenuity here in our state that we can thrive and be successful. But we can’t continue to do that and be successful if we don’t stand up for the values that we, as Utahns, strongly believe in.
If we cave to everyone and anything, Utah’s greatness will be gone, and people won’t want to move here anymore. We will become more like the states that everyone’s running away from. It’s not good policy or decision-making to decide what’s going to help us financially based on who will come to our state and bring us their dollars. What we should be focused on is how we are going to invest in our girls and all youth, since they’re the future of our state.
CH: Some critics have pointed out there are only four transgender athletes in the state, so this bill is overkill or even unkind targeting of a very small number of kids. Why was this bill needed?
KB: Well, first, I always say it’s not just four kids. There are more than four transgender kids competing in activities under the UHSAA umbrella. That said, let’s pretend and go along with the narrative that there are only four. But all it takes is one. In Connecticut, it was one. At UPENN, it’s been one. It’s one elite cyclist. It takes one transgender girl to come in and dominate, to just completely undermine everything that these girls are working for. Even if there were zero, should we still have a position on the issue as a legislature, as policymakers? Do we believe that just ignoring the possible problem is right for our state? The legislature is defending the principle that no, we don’t think it’s right for someone who is biologically male to come in and play against girls, and so we will be getting ahead of that issue.
Three of the four students working through the UHSAA procedure are girls who are transitioning to boys, and one is a boy transitioning to a girl. However, we know from parent reports that there are several transgender kids competing in basketball, track and field, and other events. We also have transgender participation outside of the procedure of the UHSAA, which isn’t going to know about every transgender athlete unless the kids choose to come forward.
CH: So there’s a data-gathering issue? The UHSAA doesn’t have a record of every single case of this happening because sometimes the schools just tell the athlete, “sure, go ahead, no need to go through the process.”
KB: That, or a youth will transition then change schools for whatever reasons, and not notify their school of their previous identity. So there are a lot of different factors that make it so we’re not in a situation where every transgender athlete feels compelled to go through the UHSAA policy. It could also be that some parents don’t want their kids to do that year of hormone therapy required by UHSAA, and so they are purposely going around it.
CH: Other objections have been raised to the process of passing this bill. Some have insisted the legislature was close to a compromise, but then you pulled a switcheroo at the last minute. Can you walk me through what happened and why? What do you want people to understand about the process of discussing and negotiating this bill?
KB: The process happened in the same way that it does for any bill; it wasn’t really so exceptional as people have claimed. Bills are changed all throughout the legislative session. This bill, or the subject matter therein, had 5 committee hearings and four floor debates. Now, sometimes, the issue was just a straight ban. Sometimes, the issue at hand was a commission. Sometimes, it was just, “We need more information on what the right step forward is.” But either way, this topic at large had five committee hearings and four floor debates. It was known by the public for almost a year and a half that this was coming forward, and the public has weighed in. They really, truly have.
CH: You reported that more than 100 meetings took place over the course of two years with many stakeholders, including transgender-identifying Utahns. How did such a lengthy process lead to the change in the Senate on the final night of the session? How do you respond to the accusation that the vote was rushed and the process was opaque?
[Editor’s note for readers who might not be familiar with the history of HB 11: One version of the bill enacted “the ban,” which simply prohibits biological males from competing on some girls’ sports teams. Another version of the bill led with establishing “the commission,” which would consider each trans-identifying boy’s case separately to determine whether he could compete on the girls’ team according to specific criteria. Much of the debate over the bill concerned how commissioners would be chosen and what expertise they would need to have. At the end of the legislative session, the “commission” version of the bill was still being considered. On the last night of the legislative session, the Senate amended the bill to go back to the version that enacted the ban.]
KB: When we talk about this last-second change, all that was done was taking what was brought up the year before (and vetted and discussed in committees and debated on the floor the year before) and bringing them together. So, it wasn’t like we pulled it out of thin air.
It came all together, but both approaches—both the ban and the commission—had a full process of discussion and public input. And legislation, by nature, gets changed throughout the entire session. I mean, even special sessions: a bill’s presented, and there’s a sub, two subs, three subs, a full amendment to it—this is part of the process as more people communicate and bring their opinions in.
Many of those who objected to the change on the last day were also opposed to the commission all along the way. The process of debating and considering the bill wasn’t the problem—they simply didn’t want any law passed on this issue. When the Senate faced the reality that the version of the bill that led with establishing a commission had no overall public support, they changed it to go back to the version that led with the ban, which had overwhelming public support.
The fact of the matter is, a bill with the commission alone could never have passed. It was not going to be heard on the Senate floor. It didn’t have any support. It had zero support from the LGBT+ community so far as I could tell from my extensive discussions with them. And it had no support, essentially, from those on the right who were concerned about the unfair advantages. It really had no support. And so listening to our constituents, the senate made the decision to try to pull together what the LGBT+ community was saying they want to try to go for, which is anything else aside from a ban, while also listening to their constituents on, “We want to preserve the integrity of women’s sports,” and trying to pull that all together in a way that is representative of what the people at large have requested.
It’s true that the decision to go back to the ban was not decided upon until the last day. There were a lot of options on the table up until that last day. We were talking with different religious organizations, the Utah High School Activities Association—a lot of different groups were still chiming in with what they wanted to see and what changes they would want in the makeup of the commission. There were so many issues people had with just the commission in and of itself that it wasn’t until the last day we realized that a bill establishing a commission is not ready to become law. That’s not the best product we can put forward. It’s not the best policy we can create for our great state.
Maybe Governor Cox really didn’t realize that the commission version wasn’t going to pass, but that’s not from a lack of us communicating that. We did our best to clearly communicate with his team and others all along, conveying the reality that a lot of people on both sides had strong objections to the commission, and we weren’t actually getting closer to a compromise. I understand that people make accusations a lot in politics, but I am confident that I acted in full faith and in transparency.
The commission had pushback from the LGBT+ community, the commission had pushback from the Republicans in our state, and Governor Cox wanted it to include provisions that were not going to pass. He’s simply wrong to say we could have passed the version he wanted, and that our constituents would have been happy with it. Our constituents have overwhelmingly wanted a ban, and you want me to soften the commission even more? That would mean I’m going to lose all support for it. That wasn’t a posture of mine, that was just a fact. It was brought up in our last meeting with the governor multiple times that a ban is what people are asking for within the house and senate and within the community at large. And we were working to see if we could figure out any other strategy to go along with the commission to make the bill better, and when it came down to it on that last day, it really was just the best way forward. The best we can do is what we drafted up and what was presented. And so if Governor Cox felt blindsided by it, I don’t think it’s from a lack of transparency on our end.
CH: How has the makeup and just the idea of the commission evolved throughout the process?
KB: The commission is still in the bill. So if the courts strike down the ban, it will fall back to the commission, and the commission took a long time to figure out who is best to really look at this in an unbiased, scientific, medically driven way. We talked a lot the last two years about following the basic science and making sure this legislation did just that. For instance, let’s make sure to look at the competitive advantages: women’s sports are supposed to be a place for them to go that is fair and even; otherwise we would just get rid of Title IX and have just all men’s sports and co-ed sports. So the idea of a commission really developed with a lot of help from attorneys from around the nation, from a lot of experts in sports medicine and sports physiology, where we put some of the best minds together to figure out what can be done. They can really help clear a path for those that are intersex, who want to play, or for those who are really struggling with distress over their gender, and where playing would reinforce the importance of their life and give them an avenue to work things through but not do so to the detriment of other girls that are participating. I think the commission is actually a good policy.
CH: But the commission is not the first line policy in the bill. Is that because there was too much trouble in getting a consensus on how to constitute the commission?
KB: Nobody liked the commission. It was a bad idea to put it first and foremost. Would that have been a bad idea for me personally? No, not necessarily. We discussed perhaps having a commission, and a ban would be triggered if the bans in other states were upheld by courts in cases that are pending now. But I want to say this directly to those who are advocating for the LGBT+ community: you have to come to the table if you want something to work. You can’t sit back and say, “we hate every idea, we hate every proposal,” and then throw a fit because the idea that you claimed for months and years to hate is now taking a back seat to a ban. The LGBT+ activists hated it, and Republicans hated it, and the majority of the citizens didn’t understand it, or want it, or thought it was too complicated, so why would we put it first? Without the commission, it should be a very simple issue of you play based on the sex you identify with at birth and we clear up a lot of confusion and we save people a lot of time and effort.
CH: Say a little more about why the bill was passed at the last minute. Why not wait until the next legislative session?
KB: Polling shows that over 80 percent of the state supports a competition ban. So when you know that’s what the people you represent want, and you tried to find other solutions that constituents may like and they were rejecting those other solutions, why do you need to wait a year to give them what they believe is best for our state when you know they’re correct? I tried with honest intent to create a compromise. But ultimately, this is not an infrastructure bill. This is not a bill where you can all be a little unhappy with the outcome. I think this is an issue where you have to stand up for the principle. Waiting a year to do what’s right isn’t a good response.
CH: To clarify, when does the legislature reconvene?
We don’t reconvene until January of 2023, and so it’s a whole ‘nother sports cycle. It’s a whole ‘nother year. And so I would remind people when I proposed the bill in 2021, I knew of transgender athletes playing, but there were zero—zero—who’d gone through the UHSAA policy. And then one school year, we all of a sudden had four go through the UHSAA policy, and people were like, “Oh my gosh, you’re targeting four kids.” That’s part of why I wanted to act earlier, so this wouldn’t feel like we’re targeting individual kids. But with no kids reporting to UHSAA, critics said, “Well, you’re looking for a solution to a problem that doesn’t exist.” Had we waited another year, would that number have gone from four to eight to ten to twelve that are going through the UHSAA policy who think that they have a path forward, and then we pull it out from underneath them? Again, the right thing to do shouldn’t be delayed for political points.
CH: Did you and the other supporting legislators look to the experience of other states in deciding this policy is the best decision for Utah?
KB: We did. So when I was drafting the legislation last year, I did look at a lot of the other states that had similar legislation that they were running. I wanted to make sure that ours avoided any downfalls that they’ve had, anything that’s been struck down by the courts, anything that’s received a lot of public scrutiny from either side. I carefully considered what’s appropriate, what’s the best. I basically wanted to find the best of the best when it came to policy work in this area, and so I did consider a lot of that legislation. Right out the gate, I did not make it apply to universities because universities are a federal issue and we can’t control who we compete against in conferences because outside of our state bounds. So I tried to make sure that those simple things that bogged down those other states didn’t become a problem for us.
CH: Some have wondered whether this bill is an about-face from the legislature’s “Fairness for All” approach, which previously outlawed employment discrimination on the basis of gender identity.
KB: No, absolutely not. I feel like this should be such an easy concept. Title IX was created so that women could have a separate category away from the men. Because without Title IX, without the ability to be a single sex, they could not compete, and if they couldn’t compete, then they couldn’t have success, and so all we’re saying is we are going to uphold the very essence of Title IX. This bill still allows all students to participate in the majority of all the activities. It just limits who can compete in these 5 categories. When you remember that it’s 5 out of 24 categories, it puts it back into perspective that nobody is banning kids who are transgender from access to all school sports activities. Sometimes people start to believe that based on what the media are saying to them. I believe this is still very much the Utah way because it provides opportunities for transgender youths while preserving the integrity and the necessity of women’s sports in our state.
CH: Do you agree the bill is “designed to fail” and likely to be thrown out by courts?
KB: That’s a great question. Idaho’s legislation is similar—a lot more strict, in fact, than this bill—and it is still being litigated two years later, so I’m not sure why they would assume that it would just be quickly tossed out. I would say that, unlike all the other states, while ours is being litigated against, if it comes to that, we will still have protective measures in there that ensure a path for kids to participate in some way while preserving women’s sports. Frankly, to paraphrase what our Senate president, Stuart Adams, said, this is probably the best policy in the nation and is being looked at by legislators across the nation as being the way to handle this issue. I think shade is going to be thrown on anything that anyone doesn’t like and that would sum up why they make those “designed to fail” claims.
CH: Governor Cox wrote of his concern that the bill will lead to lawsuits against schools, school districts, and especially the Utah High School Athletic Association and that the bill could have protected them from expensive lawsuits but didn’t. Is this something that can be addressed?
KB: We can’t indemnify the UHSAA because it’s not a government entity. But should a student come forward and sue the school, because the school won’t let them play on a sports team because of their biological sex, then that student and parents could attack that school district. What we did then is write HB 3001, creating an indemnification process for those schools who are acting under in compliance with the law.
CH: What’s the status of HB 3001?
KB: It passed, in the special session. [Ed note: the special session is when the legislature overrode the Governor’s veto of HB 11.]
CH: If the commission comes into being, why does the law require one member of the commission to be “a statistician with expertise in the analysis of medical data”?
KB: We look at someone’s medical records, like what are their hormone levels, what is the speed they can run, and all of this information that a student-athlete would voluntarily provide the commission. If they don’t provide enough information, well then they’ll be denied because they don’t have enough information to clearly show that they don’t have a competitive edge.
Let’s say a student-athlete can bring in and provide that medical data; we wanted to make sure this decision was being made in part with a full understanding of what is the typical speed in which a typical 16-year-old girl can run versus that particular student, what is the typical heart rate of a 16-year-old girl versus 16-year-old boy, what is the typical muscle mass. We wanted someone who understands and can really crunch that medical data, then work with the sports physiologist, bringing those to make the best conclusions for each athlete.
CH: That commission will be required to consider whether the student’s participation would pose a substantial safety risk to his/her female teammates. What are your specific concerns about girls’ safety?
KB: Well, we already have a lot of safety precautions in sports, especially contact sports. That includes people who are handicapped and in wheelchairs. They don’t get to participate in certain contact-type sports because it is a safety risk. We have featherweight and lightweight activities based just on basic safety concerns. We wanted to make sure those same safety components were a part of the purpose and a guiding force for the commission.
CH: Is there anything else that you would like for people to understand about you and this law and this process and the state of Utah?
KB: I think the state of Utah is great. I think there are so many kind and compassionate people, who do support HB11. And I feel bad that so many of them who have been vocal supporters of it are just being cast aside, by even our governor, as lacking compassion somehow—they don’t. We cannot continue to advance this toxic narrative that you either support women or you support transgender kids. If we continue that, we will never get to the place where I know Utah can get to because of the good people we have here.
We need to start talking about how we support women here and make sure that their sports are preserved for them, while we also encompass transgender-identifying youth and provide them the opportunity that they need to thrive and be successful in their lives.
I really believe that if we start changing our own words and narrative it will help. I’ve made that a goal for myself when I started this process and realized there are a lot of simple things that I was saying that were offensive to the LGBT+ community. Of course, simply changing my words doesn’t mean that I’ve become woke, it just means that I can show compassion and concern, and I can say things in a way that’s less disagreeable to them so that we can really start focusing on the real issue at heart: that we need to preserve women’s sports.