Jan 23, 2024 - News

Utah's anti-transgender bathroom proposal sparks questions about false reports

Illustration of a transgender pride flag drawn in crayons.

Illustration: Maura Losch/Axios

A Utah measure to restrict transgender access to bathrooms and locker rooms contains a "false reporting" provision that's incurred criticism from supporters and detractors alike.

  • Backers of bathroom restrictions say people who report trespassing could risk prosecution if it turns out they unwittingly misjudged the sex of the person targeted in their complaint, per the text of the bill.
  • Detractors say the legislation leaves too much room for frivolous reports and harassment against bathroom-users who don't conform to gender norms — and effectively bans people from being trans in public places.

Catch up quick: H.B. 257, which passed the House with a 52-17 vote last Friday, would make it a Class B misdemeanor for a person to enter a sex-segregated, private space that doesn't match the sex on their birth certificate if they:

  • Do something that would "cause affront or alarm" or don't use the space for its intended purpose.
  • The bill would apply to publicly funded facilities like municipal pool locker rooms, public school and college bathrooms, jails, prisons and some performance and sports venues.

Zoom in: The bill, introduced by Rep. Kera Birkeland (R-Morgan), also makes it a Class B misdemeanor to file false, sex-designation-related trespassing reports — in some cases.

  • Prosecutors have to prove intent or demonstrate the complainant has filed more than one false report.

Reality check: Those requirements would effectively limit false-reporting charges only to individuals who serially make false complaints of sex-based "trespassing," said Salt Lake County District Attorney Sim Gill, who opposes the bill.

  • "It is not going to protect people who may be trans or who may be masculine-presenting or feminine-presenting," Gill said. "I think it's just going to basically be an open season of reporting for anybody else's sensibilities that may be offended."

The other side: Some proponents of restrictions on bathrooms and changing rooms say the false-reporting provisions could criminalize good-faith complaints.

What happened: In a committee hearing last week, Rep. Norm Thurston (R-Provo) proposed eliminating those penalties, but lawmakers voted to keep them.

  • "By having this criminality for false reporting … you can now just charge people and then you find out later whether the report is true or false, but people have to get dragged through that," Thurston said.

Of note: Thurston didn't voice similar concern for defendants who might be charged with criminal trespassing even if their conduct was not "alarming," or if they could prove their sex aligned with the facility they entered.

What they're saying: "We don't want people targeting transgender people using stereotypes to intimidate or harass people," Birkeland said. "That goes to the crux of this entire bill: Simply being in a facility under this bill, not causing alarm is not illegal. But doing something that causes a reasonable personnel alarm is what should be — and only be — what is reported and [is] brought forward to police."

Yes, but: Several of Birkeland's own supporters do not appear to share that understanding of the bill.

  • "I worry that the [false-report] provision is vague and can be weaponized by activist prosecutors against women who report that there's a man in the bathroom," said Goud Margani, a Republican former candidate for Salt Lake County clerk, representing the anti-trans "Utah Gay-Straight Coalition" at last week's hearing.
  • Most of the 10 other speakers who backed the bill in the hearing also cited the mere lack of segregation or presence of transgender women as affronts that justified restrictions.

The latest: A state Senate committee approved the bill Monday with a 5-3 vote, advancing it to the full Senate.

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