This document includes Senate 3rd Reading Floor Amendments incorporated into the bill on Fri, Mar 4, 2022 at 9:27 PM by lpoole.
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6 Cosponsors:
7 Cheryl K. Acton
8 Melissa G. Ballard
Marsha Judkins
Karianne Lisonbee
Candice B. Pierucci
Susan Pulsipher
Judy Weeks Rohner
Christine F. Watkins
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10 LONG TITLE
11 General Description:
12 This bill addresses student athlete participation in gender-designated sports in the
13 public education system.
14 Highlighted Provisions:
15 This bill:
16 ▸ defines terms;
17 ▸ imposes limits on participation in female sports, by:
18 • requiring schools and local education agencies to designate athletic activities by
19 sex;
20 • prohibiting a student of the male sex from competing against another school on
21 a team designated for female students;
22 • prohibiting certain complaints or investigations based on a school or local
23 education agency maintaining separate athletic activities for female students; Ŝ→ and ←Ŝ
24 Ŝ→ [
25 • providing for severability;
26 ▸ in the alternative if a court invalidates the above policy:
27 • conditions student athlete participation in gender-designated sports in the public
28 education system on the student's birth certificate;
29 • establishes the School Activity Eligibility Commission (commission) and
30 provides the commission's membership and duties;
31 • requires the commission to establish a baseline range of students in a given
32 gender-designated interscholastic activity for a given age;
33 • provides that records of the commission related to a specific student are
34 protected;
35 • provides immunity from suit for members of the commission;
36 • allows a student to participate in a gender-designated interscholastic activity that
37 does not correspond to the sex designation on the student's birth certificate or in
38 the case of a gender transition if the student receives the commission's eligibility
39 approval;
40 • provides processes for an athletic association to notify the commission when a
41 student registers to participate in a gender-designated sport in a situation that
42 requires the commission's eligibility approval;
43 • provides processes for the commission to receive information and evidence;
44 • provides for the confidentiality of the proceedings, commission vote, eligibility
45 determination, and student's identity; and
46 • establishes a standard for the commission's considerations in rendering an
47 eligibility determination;
48 • allows for commission meetings in which the commission discusses and votes
49 on a specific student's request to be closed under the Open and Public Meetings
50 Act;
51 • provides for reasonable accommodations in school facilities related to gender
52 identity for students participating in interscholastic activities; and
53 • provides for severability; and
54 ▸ makes technical changes.
55 Money Appropriated in this Bill:
56 None
57 Other Special Clauses:
58 This bill provides a special effective date.
59 Utah Code Sections Affected:
60 AMENDS:
61 52-4-205, as last amended by Laws of Utah 2021, Chapters 179 and 231
62 ENACTS:
63 53G-6-901, Utah Code Annotated 1953
64 53G-6-902, Utah Code Annotated 1953
65 53G-6-903, Utah Code Annotated 1953
66 Ŝ→ [
67 53G-6-1001, Utah Code Annotated 1953
68 53G-6-1002, Utah Code Annotated 1953
69 53G-6-1003, Utah Code Annotated 1953
70 53G-6-1004, Utah Code Annotated 1953
71 53G-6-1005, Utah Code Annotated 1953
72 53G-6-1006, Utah Code Annotated 1953
73
74 Be it enacted by the Legislature of the state of Utah:
75 Section 1. Section 52-4-205 is amended to read:
76 52-4-205. Purposes of closed meetings -- Certain issues prohibited in closed
77 meetings.
78 (1) A closed meeting described under Section 52-4-204 may only be held for:
79 (a) except as provided in Subsection (3), discussion of the character, professional
80 competence, or physical or mental health of an individual;
81 (b) strategy sessions to discuss collective bargaining;
82 (c) strategy sessions to discuss pending or reasonably imminent litigation;
83 (d) strategy sessions to discuss the purchase, exchange, or lease of real property,
84 including any form of a water right or water shares, if public discussion of the transaction
85 would:
86 (i) disclose the appraisal or estimated value of the property under consideration; or
87 (ii) prevent the public body from completing the transaction on the best possible terms;
88 (e) strategy sessions to discuss the sale of real property, including any form of a water
89 right or water shares, if:
90 (i) public discussion of the transaction would:
91 (A) disclose the appraisal or estimated value of the property under consideration; or
92 (B) prevent the public body from completing the transaction on the best possible terms;
93 (ii) the public body previously gave public notice that the property would be offered for
94 sale; and
95 (iii) the terms of the sale are publicly disclosed before the public body approves the
96 sale;
97 (f) discussion regarding deployment of security personnel, devices, or systems;
98 (g) investigative proceedings regarding allegations of criminal misconduct;
99 (h) as relates to the Independent Legislative Ethics Commission, conducting business
100 relating to the receipt or review of ethics complaints;
101 (i) as relates to an ethics committee of the Legislature, a purpose permitted under
102 Subsection 52-4-204(1)(a)(iii)(C);
103 (j) as relates to the Independent Executive Branch Ethics Commission created in
104 Section 63A-14-202, conducting business relating to an ethics complaint;
105 (k) as relates to a county legislative body, discussing commercial information as
106 defined in Section 59-1-404;
107 (l) as relates to the Utah Higher Education Assistance Authority and its appointed
108 board of directors, discussing fiduciary or commercial information as defined in Section
109 53B-12-102;
110 (m) deliberations, not including any information gathering activities, of a public body
111 acting in the capacity of:
112 (i) an evaluation committee under Title 63G, Chapter 6a, Utah Procurement Code,
113 during the process of evaluating responses to a solicitation, as defined in Section 63G-6a-103;
114 (ii) a protest officer, defined in Section 63G-6a-103, during the process of making a
115 decision on a protest under Title 63G, Chapter 6a, Part 16, Protests; or
116 (iii) a procurement appeals panel under Title 63G, Chapter 6a, Utah Procurement
117 Code, during the process of deciding an appeal under Title 63G, Chapter 6a, Part 17,
118 Procurement Appeals Board;
119 (n) the purpose of considering information that is designated as a trade secret, as
120 defined in Section 13-24-2, if the public body's consideration of the information is necessary in
121 order to properly conduct a procurement under Title 63G, Chapter 6a, Utah Procurement Code;
122 (o) the purpose of discussing information provided to the public body during the
123 procurement process under Title 63G, Chapter 6a, Utah Procurement Code, if, at the time of
124 the meeting:
125 (i) the information may not, under Title 63G, Chapter 6a, Utah Procurement Code, be
126 disclosed to a member of the public or to a participant in the procurement process; and
127 (ii) the public body needs to review or discuss the information in order to properly
128 fulfill its role and responsibilities in the procurement process;
129 (p) as relates to the governing board of a governmental nonprofit corporation, as that
130 term is defined in Section 11-13a-102, the purpose of discussing information that is designated
131 as a trade secret, as that term is defined in Section 13-24-2, if:
132 (i) public knowledge of the discussion would reasonably be expected to result in injury
133 to the owner of the trade secret; and
134 (ii) discussion of the information is necessary for the governing board to properly
135 discharge the board's duties and conduct the board's business; or
136 (q) a purpose for which a meeting is required to be closed under Subsection (2).
137 (2) The following meetings shall be closed:
138 (a) a meeting of the Health and Human Services Interim Committee to review a report
139 described in Subsection 62A-16-301(1)(a), and the responses to the report described in
140 Subsections 62A-16-301(2) and (4);
141 (b) a meeting of the Child Welfare Legislative Oversight Panel to:
142 (i) review a report described in Subsection 62A-16-301(1)(a), and the responses to the
143 report described in Subsections 62A-16-301(2) and (4); or
144 (ii) review and discuss an individual case, as described in Subsection 62A-4a-207(5);
145 (c) a meeting of the Opioid and Overdose Fatality Review Committee, created in
146 Section 26-7-13, to review and discuss an individual case, as described in Subsection
147 26-7-13(10);
148 (d) a meeting of a conservation district as defined in Section 17D-3-102 for the
149 purpose of advising the Natural Resource Conservation Service of the United States
150 Department of Agriculture on a farm improvement project if the discussed information is
151 protected information under federal law;
152 (e) a meeting of the Compassionate Use Board established in Section 26-61a-105 for
153 the purpose of reviewing petitions for a medical cannabis card in accordance with Section
154 26-61a-105; [
155 (f) a meeting of the Colorado River Authority of Utah if:
156 (i) the purpose of the meeting is to discuss an interstate claim to the use of the water in
157 the Colorado River system; and
158 (ii) failing to close the meeting would:
159 (A) reveal the contents of a record classified as protected under Subsection
160 63G-2-305(82);
161 (B) reveal a legal strategy relating to the state's claim to the use of the water in the
162 Colorado River system;
163 (C) harm the ability of the Colorado River Authority of Utah or river commissioner to
164 negotiate the best terms and conditions regarding the use of water in the Colorado River
165 system; or
166 (D) give an advantage to another state or to the federal government in negotiations
167 regarding the use of water in the Colorado River system[
168 (g) a meeting of the School Activity Eligibility Commission, described in Section
169 53G-6-1003, if the commission is in effect in accordance with Section 53G-6-1002, to
170 consider, discuss, or determine, in accordance with Section 53G-6-1004, an individual student's
171 eligibility to participate in an interscholastic activity, as that term is defined in Section
172 53G-6-1001, including the commission's determinative vote on the student's eligibility.
173 (3) In a closed meeting, a public body may not:
174 (a) interview a person applying to fill an elected position;
175 (b) discuss filling a midterm vacancy or temporary absence governed by Title 20A,
176 Chapter 1, Part 5, Candidate Vacancy and Vacancy and Temporary Absence in Elected Office;
177 or
178 (c) discuss the character, professional competence, or physical or mental health of the
179 person whose name was submitted for consideration to fill a midterm vacancy or temporary
180 absence governed by Title 20A, Chapter 1, Part 5, Candidate Vacancy and Vacancy and
181 Temporary Absence in Elected Office.
182 Section 2. Section 53G-6-901 is enacted to read:
183
184 53G-6-901. Definitions.
185 As used in this part:
186 (1) "Coed" or "mixed" means that a team is composed of members of both sexes who
187 traditionally compete together.
188 (2) "Interscholastic athletic activity" means that a student represents the student's
189 school or LEA in competition against another school or LEA in an athletic or sporting activity.
190 (3) "Sex" means the biological, physical condition of being male or female, determined
191 by an individual's genetics and anatomy at birth.
192 Section 3. Section 53G-6-902 is enacted to read:
193 53G-6-902. Participation in school athletic activities.
194 (1) Notwithstanding any state board rule:
195 (a) a public school or LEA, or a private school that competes against a public school or
196 LEA, shall expressly designate school athletic activities and teams as one of the following,
197 based on sex:
198 (i) designated for students of the male sex;
199 (ii) designated for students of the female sex; or
200 (iii) "coed" or "mixed";
201 (b) a student of the male sex may not compete, and a public school or LEA may not
202 allow a student of the male sex to compete, with a team designated for students of the female
203 sex in an interscholastic athletic activity; and
204 (c) a government entity or licensing or accrediting organization may not entertain a
205 complaint, open an investigation, or take any other adverse action against a school or LEA
206 described in Subsection (1)(a) for maintaining separate school athletic activities for students of
207 the female sex.
208 (2) Nothing in this section prohibits an LEA or school from allowing a student of either
209 gender from participating with a team designated for students of the female sex, consistent with
210 school policy, outside of competition in an interscholastic athletic activity, in accordance with
211 Subsection (1)(b).
212 Section 4. Section 53G-6-903 is enacted to read:
213 53G-6-903. Severability.
214 (1) If any provision of this part or the application of any provision of this part to any
215 person or circumstance is held invalid by a final decision of a court of competent jurisdiction,
216 the remainder of this part shall be given effect without the invalidated provision or application.
217 (2) The provisions of this part are severable.
218 Ŝ→ [
219 53G-6-904. Indemnification.
220 The state shall indemnify and hold harmless an LEA or school within the public
221 education system with a team that competes in an interscholastic athletic activity for any claims
222 or damages, including court costs and attorney fees, that:
223 (1) are brought to or incurred as a result of an action required of the LEA or school in
224 this part; and
225 (2) are not covered by the LEA or school's insurance policies or by any coverage
226 agreement issued by the State Risk Management Fund.] ←Ŝ
227 Section 6. Section 53G-6-1001 is enacted to read:
228
229 53G-6-1001. Definitions.
230 As used in this part:
231 (1) "Athletic association" means an association, as that term is defined in Section
232 53G-7-1101.
233 (2) "Commission" means the School Activity Eligibility Commission created in
234 Section 53G-6-1003.
235 (3) "Female-designated" means that an interscholastic activity is designated specifically
236 for female students.
237 (4) "Gender-designated" means that an interscholastic activity or facility is designated
238 specifically for female or male students.
239 (5) "Gender identity" means the same as that term is defined in Section 34A-5-102.
240 (6) "Interscholastic activity" means an activity in which a student represents the
241 student's school in the activity in competition against another school.
242 (7) "Male-designated" means that an interscholastic activity is designated specifically
243 for male students.
244 (8) "Student" means a student who is enrolled in a public school that participates in
245 interscholastic activities.
246 Section 7. Section 53G-6-1002 is enacted to read:
247 53G-6-1002. Effect contingent on court ruling.
248 This part becomes effective if a court of competent jurisdiction invalidates or enjoins
249 Title 53G, Chapter 6, Part 9, Participation in Female Sports.
250 Section 8. Section 53G-6-1003 is enacted to read:
251 53G-6-1003. School Activity Eligibility Commission -- Baseline range.
252 (1) There is created the School Activity Eligibility Commission.
253 (2) (a) The commission shall consist of the following members:
254 (i) the following two members whom the president of the Senate appoints:
255 (A) a mental health professional; and
256 (B) a statistician with expertise in the analysis of medical data;
257 (ii) the following two members whom the speaker of the House of Representatives
258 appoints:
259 (A) a board-certified physician with expertise in gender identity healthcare; and
260 (B) a sports physiologist;
261 (iii) the following two members whom the governor appoints:
262 (A) a representative of an athletic association; and
263 (B) an athletic trainer who serves student athletes on the collegiate level; and
264 (iv) one ad hoc member, serving on a case-by-case basis, who is:
265 (A) appointed by the athletic association in which the relevant student's school
266 competes; and
267 (B) a certified high school coach or official who coaches or officiates in a separate
268 region or classification from the relevant student's school and in the sport in which the relevant
269 student seeks eligibility.
270 (b) An athletic association may prepare and communicate the association's
271 sport-specific appointments described in Subsection (2)(a)(iv) in preparation for student
272 requests in a given sport.
273 (3) (a) A member of the commission described in Subsections (2)(a)(i) through (iii)
274 shall serve an initial term of one year, subject to reappointment for subsequent terms of two
275 years.
276 (b) If a vacancy occurs in the membership of the commission, the individual
277 responsible for the appointment of the vacant seat as described in Subsection (2) shall fill the
278 vacancy in the same manner as the original appointment.
279 (4) (a) (i) Except as provided in Subsection (4)(a)(ii), all members of the commission
280 constitute a quorum of the commission for a meeting to determine the eligibility of a student.
281 (ii) All members of the commission described in Subsections (2)(a)(i) through (iii)
282 constitute a quorum for any meeting other than the meeting described in Subsection (4)(a)(i).
283 (b) An action of a majority of a quorum constitutes an action of the commission.
284 (5) A majority of the commission members described in Subsections (2)(a)(i) through
285 (iii) shall elect a chair from among the members described in Subsections (2)(a)(i) through (iii)
286 to:
287 (a) schedule meetings of the commission;
288 (b) set the agenda of commission meetings; and
289 (c) facilitate discussion among the commission's members.
290 (6) A commission member:
291 (a) may not receive compensation or benefits for the member's service on the
292 commission; and
293 (b) may receive per diem and reimbursement for travel expenses that the commission
294 member incurs as a commission member at the rates that the Division of Finance establishes
295 under:
296 (i) Sections 63A-3-106 and 63A-3-107; and
297 (ii) rules that the Division of Finance makes under Sections 63A-3-106 and 63A-3-107.
298 (7) The commission may enter into an agreement with an athletic association to
299 provide staff support to the commission.
300 (8) (a) The commission shall establish a baseline range of physical characteristics for
301 students participating in a specific gender-designated activity at a specific age to provide the
302 context for the evaluation of an individual student's eligibility for a given gender-designated
303 interscholastic activity under Section 53G-6-1004.
304 (b) In creating the baseline ranges described in Subsection (8)(a), the commission shall
305 include the physical characteristics for the age and gender group in a given gender-designated
306 interscholastic activity that are relevant to the specific interscholastic activity.
307 (c) The physical characteristics described in Subsection (8)(b) may include height,
308 weight, physical characteristics relevant to the application of the standard described in
309 Subsection 53G-6-1004(3), or the extent of physical characteristics affected by puberty, giving
310 consideration to the practicability of considering the physical characteristic when making an
311 assessment of an individual student's eligibility under Section 53G-6-1004.
312 (9) Any record of the commission, including any communication between an athletic
313 association and the commission, that relates to a specific student shall be classified as a
314 protected record under Title 63G, Chapter 2, Government Records Access and Management
315 Act.
316 (10) Members of the commission are immune from suit with respect to all acts done
317 and actions taken in good faith in carrying out the purposes of this part.
318 (11) The commission has no authority in relation to eligibility questions other than
319 participation in a gender-designated interscholastic activity under this part.
320 Section 9. Section 53G-6-1004 is enacted to read:
321 53G-6-1004. Eligibility for interscholastic activities.
322 (1) (a) Notwithstanding any state board rule or policy of an athletic association, and
323 except as provided in Subsections (1)(b) and (c):
324 (i) once a student has obtained the eligibility approval of the commission under
325 Subsection (2), the student may participate in a gender-designated interscholastic activity that
326 does not correspond with the sex designation on the student's birth certificate; and
327 (ii) if a student does not obtain the eligibility approval of the commission under
328 Subsection (2), the student may not participate in a gender-designated interscholastic activity
329 that does not correspond with the sex designation on the student's birth certificate.
330 (b) A student who has undergone or is undergoing a gender transition shall obtain the
331 eligibility approval of the commission under Subsection (2) to participate in a
332 gender-designated interscholastic activity that corresponds with the student's gender identity.
333 (c) Nothing in this subsection prohibits a student from participating in a
334 gender-designated interscholastic activity in accordance with 34 C.F.R. Sec. 106.41(b).
335 (2) (a) When a student registers with an athletic association to participate in a
336 gender-designated interscholastic activity:
337 (i) a student who has undergone or is undergoing a gender transition shall notify the
338 athletic association of the student's transition and the need for the commission's eligibility
339 approval as described in Subsection (1)(b);
340 (ii) the athletic association shall notify the commission of:
341 (A) a student for whom an eligibility determination of the commission is required due
342 to the sex designation on the student's birth certificate not corresponding with the gender
343 designation of the gender-designated interscholastic activity in which the student seeks to
344 participate or the student's notice of a gender transition under Subsection (1)(a)(ii); and
345 (B) the association's ad hoc appointment to the commission described in Subsection
346 53G-6-1003(2)(a)(iv); and
347 (iii) the commission shall notify the student described in Subsection (2)(a) regarding
348 the process for determining the student's eligibility for the activity under this section.
349 (b) The commission shall:
350 (i) schedule a closed meeting to consider a student's eligibility to be held within 30
351 days after the day on which the commission receives the notification described in Subsection
352 (2)(a); and
353 (ii) notify the relevant athletic association and the student's parents or legal guardians
354 of the scheduled meeting.
355 (c) Before the meeting described in Subsection (2)(b):
356 (i) the student for whom the commission has scheduled the meeting or the student's
357 parent or guardian is not required but may submit to the commission any information the
358 student wishes to disclose to the commission that may be relevant to the commission's
359 eligibility determination, including information regarding:
360 (A) the gender-designated interscholastic activities for which the student seeks
361 eligibility;
362 (B) the gender-designated interscholastic activities in which the student has previously
363 participated; and
364 (C) the student's physical characteristics or medical treatments that support the
365 student's eligibility for the specific gender-designated interscholastic activity;
366 (ii) the commission may request additional evidence from the student that is:
367 (A) limited to the extent possible to protect the student's privacy; and
368 (B) only directly relevant to the commission's eligibility determination; and
369 (iii) the commission may offer the student a voucher to cover the cost of a diagnostic
370 assessment if the commission makes a request for medical information under Subsection
371 (2)(c)(ii) for which the student's insurance does not provide coverage or reimbursement for the
372 diagnostic that:
373 (A) would provide the requested information; and
374 (B) is not free or otherwise readily available to the student.
375 (d) During the meeting described in Subsection (2)(b):
376 (i) only the following individuals may be present or participate electronically:
377 (A) the student for whom the commission is meeting to make an eligibility
378 determination;
379 (B) the student's parents or guardians;
380 (C) the members and necessary staff of the commission; and
381 (D) any medical professionals or other witnesses the student chooses to include to
382 support the student's eligibility;
383 (ii) attendees may participate in person or electronically; and
384 (iii) the commission shall:
385 (A) hear the information that supports the student's eligibility;
386 (B) deliberate the facts relevant to the student's physical characteristics and eligibility
387 in camera or otherwise after temporarily excusing from the meeting the student, the student's
388 parents or legal guardians, and any medical professionals or other witnesses whom the student
389 includes; and
390 (C) render the commission's eligibility determination in accordance with Subsection
391 (3) or request additional information and schedule an additional commission meeting to be held
392 within 30 days of the meeting and in accordance with this Subsection (2)(d) to discuss the
393 additional information and render the commission's eligibility determination.
394 (3) In making an eligibility determination, the commission, after considering whether
395 the student's assertion of a gender identity is consistent with the statutory definition of gender
396 identity as that term is defined in Section 34A-5-101, including the implications for the
397 student's mental health of participating in the gender-designated interscholastic activity, shall:
398 (a) make a determination regarding whether, when measured against the relevant
399 baseline range described in Subsection 53G-6-1003(8), granting the student's eligibility would:
400 (i) present a substantial safety risk to the student or others that is significantly greater
401 than the inherent risks of the given activity; or
402 (ii) likely give the student a material competitive advantage when compared to students
403 of the same age competing in the relevant gender-designated activity, including consideration
404 of the student's previous history of participation in gender-designated interscholastic activities;
405 and
406 (b) record the commission's decision and rationale in writing and provide the written
407 decision to the student within 30 days after the day on which the commission renders an
408 eligibility decision under Subsection (3)(a) in a meeting described in Subsection (2)(b).
409 (4) (a) Notwithstanding any other provision of law and except as provided in
410 Subsections (3)(b) and (4)(b), the commission may not disclose:
411 (i) the name of a student whose eligibility the commission will consider, is considering,
412 or has considered; or
413 (ii) the commission's determination regarding a student's eligibility.
414 (b) The commission shall disclose the commission's determination of a student's
415 eligibility for a given gender-designated interscholastic activity to the relevant athletic
416 association, only for the purpose of confirming whether the student is eligible for the
417 interscholastic activity.
418 (c) (i) Notwithstanding any other provision of law, an athletic association may not
419 disclose the information described in Subsections (4)(a)(i) and (ii).
420 (ii) Nothing in this Subsection (4) prohibits an athletic association from affirming that
421 a student is eligible if the eligibility of a student is questioned.
422 Section 01. Section 53G-6-1005 is enacted to read:
423 53G-6-1005. Reasonable accommodations.
424 Nothing in this part prohibits an athletic association, LEA, or school from adopting
425 reasonable safety and privacy rules and policies that designate facilities, including restrooms,
426 shower facilities, and dressing facilities, provided that the rules and policies described in this
427 section afford reasonable accommodations based on gender identity to all students.
428 Section 11. Section 53G-6-1006 is enacted to read:
429 53G-6-1006. Severability.
430 (1) If any provision of this part or the application of any provision of this part to any
431 person or circumstance is held invalid by a final decision of a court of competent jurisdiction,
432 the remainder of this part shall be given effect without the invalidated provision or application.
433 (2) The provisions of this part are severable.
434 Section 21. Effective date.
435 This bill takes effect on July 1, 2022.