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A Better Conversation about HB 11

The problem with HB 11 was not its failure to reach compromise on the question of transgender athletic participation, but limiting its scope to a single question, where only one set of competing interests could be served in the end.

Last week, Public Square Magazine published an in-depth interview with Rep. Kera Birkeland, the sponsor of House Bill 11.  HB 11 drew national media attention after Governor Cox vetoed it on the grounds that it contained last-minute changes which compromised the wishes of the transgender community in Utah. While local and national media outlets hailed him as a model of compassion and reflective political leadership, the public was served up a far less savory picture of Utah’s legislators, who have been accused of engaging in shallow, punitive politics at the expense of vulnerable youth, and a tribalistic refusal to compromise.

What Birkeland’s interview reveals is something strikingly different from this widely accepted and outrage-inducing national narrative. Had this account been figured into media reporting, people might have been left with more trust, hope, and goodwill on both sides of this divisive issue—leaving us in a much better position to resolve the inherent tensions of our cultural moment. Towards that end, it might be helpful to understand some of the context for the failure of the commission compromise before looking at how a real compromise might be achieved going forward. 

Context On Removing the Commission Provision in HB 11

For example, Cox’s stated reason for vetoing HB 11 was that legislators removed the provision for establishing a commission to evaluate transgender athletes for participation, instead implementing an “outright ban.” Understandably, many Utahns were irked that a seemingly sensible step toward mutual appeasement was tossed out in clear preference of one side’s  interests. Most criticisms about this change to the bill were not focused on the merits of a commission or whether it could adequately address the concerns surrounding transgender athletes competing in their chosen gender. Rather, the outrage appeared to stem from the feeling that those on one side of the issue seemed so unwilling to meet in the middle. 

This is a legitimate concern. As Governor Cox has pointed out, processes matter, and valuable goodwill is lost when that’s not taken seriously. However, Birkeland’s account provides some context to the removal of the commission provision that evidences far more good faith than media reporting has hitherto allowed. According to Birkeland, who helped create and champion the idea of the commission, LGBT+ advocates simply did not support the commission. Since it was also unpopular among some lawmakers and constituents (as revealed by polling), Birkeland felt it was better to remove the commission provision than to risk the bill failing altogether. Moreover, she explains that she really believes this was clear to Governor Cox:

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.

Simply put, HB 11 had no chance of passing with the commission provision, which had already been rejected by LGBT+ advocates as well. Demanding this provision be included was, according to Birkeland, a de facto way of ensuring no bill be passed at all. 

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. … 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 problemthey simply didn’t want any law passed on this issue.

Birkeland also reveals in her explanatory piece in the Deseret News that she held over 100 meetings with various stakeholders in the community, including LGBT+ advocates. She also refutes the idea that the final changes to the bill were the result of an opaque, backdoor political move. Instead, she claims that efforts to reach a compromise were continued until the last minute, when it was clear that keeping the commission provision in the bill would result in no bill passing at all. While this might have satisfied certain advocacy groups, Birkeland says repeatedly that polling revealed that over 80 percent of Utahns wanted this legislation passed. To pass no bill at all, she claims, would have ignored the wishes of the vast majority of Utah residents, who wanted something passed that would guarantee certain protections for female athletes.

While local and national media outlets hailed Gov. Cox as a model of compassion and reflective political leadership, the public was served up a far less savory picture of Utah’s legislators.

In a letter explaining his reasons for vetoing HB 11, Governor Cox points to Utah’s culture of fashioning compromises on controversial issues. This is certainly a worthy legacy and, as leaders of The Church of Jesus Christ of Latter-day Saints have underscored, vastly preferable to litigating all cultural questions in courts of law. President Dallin H. Oaks recently said in a speech at the University of Virginia, “Litigation should not be the first recourse in resolving our differences. Courts are constitutionally limited to resolving the specific cases before them. They are ill-suited to the overarching, complex, and comprehensive policy-making that is required in a circumstance like the current conflict between two great values.” Consistently, we should legislate by finding common ground, which requires working with one another, rather than against.

Despite what some prominent journals have depicted, Utah lawmakers are not simply looking to score political points without consideration of transgender kids. Part of the difficulty stems from the nature of the issue itself, which is discussed below. It also appears, however, that the need for a villain has outstripped attempts to provide a more accurate, balanced representation of the complexities surrounding this controversial bill. Birkeland’s account of having spent hundreds of hours meeting with parents, advocates, and other members of the community throughout the process of creating this bill simply doesn’t square with the idea of indifferent ideological zealotry. That simplistic accounting also fails to accurately characterize the viewpoint of LGBT+ advocates who opposed the commission. How is public rhetoric aided by emotive demands for compromises which none of the interested parties actually want? Or by insisting that failures to achieve consensus on an unpopular compromise can only mean bad faith motives on one side?

The Nature of Good Compromise

At least part of the denunciation of the Utah legislature seems to center on an understanding of compromise where good policy is only achieved when lawmakers go halfsies on every question. It’s worth asking whether it’s either possible or ideal to meet in the middle on every issue, or whether a better goal might be striving to create an overall environment of fairness that honors a variety of beliefs. For example, in 2015 the Church of Jesus Christ supported legislation in Utah that, among many things, extended discrimination protections in housing and employment to LGBT+ persons while also protecting the rights of religious organizations and religious individuals to express opposition to gay marriage, for example. The 2015 policy is balanced and lives up to Cox’s spirit of compromise, even though it does not grant an equal say on all questions to every group involved.

The Church has also recently encouraged the Fairness For All Act, which embodies some principles for a better approach to HB 11. For example, an FFA-type approach takes more of a bird’s eye view of transgender policy, securing non-discrimination rights for transgender citizens in housing, employment, public accommodations, and other arenas of the public square except where doing so will bump up against competing rights and priorities, such as (again) religious liberty and, in this case, the safety and privacy of womenand their ability to compete in interscholastic sports without fear that the competition will be preempted by biological males.

Governor Cox is therefore correct that HB 11 fails to achieve similar forms of compromise as other similar types of legislation among Utahns (and the Church). However, the problem is not that legislators failed to compromise on the particular question of athletic participation; rather, the problem is arguably that HB 11 wasn’t wide enough in scope to secure rights or extend other protections in areas where competing priorities could have favored the transgender community. Had it done so, the sole focus of the bill would not have centered around this single area and the overall nature of the legislation would have been one of compromise and goodwill for Utahns on both sides of these competing interests.

That would be a great outcome to aspire for in the future. In the meanwhile, it seems simplistic, and possibly irresponsible, to suggest that allowing biological males to compete with females clearly lends itself to an obvious compromise somewhere, if only legislators were more compassionate and less ideologically driven. The truth is that the participation of transgender athletes in women’s sports calls into question the biological foundations upon which women’s sports were created in the first place. To expect large swaths of the population to willingly compromise on those foundations without any scientific evidence and under the duress of “suicide statistics” is not, exactly, a good faith spirit of compromise. 

While Governor Cox asserts that the commission provision was “fairly simple” and protects both trans athletes and women’s competition, the commission actually poses far more questions than it resolves. What are the parameters within which it’s fair for a male to compete against a female? Can the physical advantages of male physiognomy be reduced to strength tests and hormone levels? Where is the science to support such an idea? What are the ethical considerations of having a committee “evaluate” a child’s body for athletic participation as a specific sex? What about the ethics of encouraging a trans girl to compete as a female until their body matures and it’s no longer possible to do so fairly? How do committee proponents propose to keep trans girls from feeling pressured to chemically transition before puberty in order to “pass” their evaluations? 

In light of all this, it appears that quite a few voters are not yet convinced that an unspecified committee is a fair trade for effectively erasing the biological barriers that have defined women’s sports. For all this, their lawmakers are accused of ignoring the principles of good governance when the problem is actually more complicated. A better tack might simply be to acknowledge that not everyone can win on every question, and look for other ways to show the trans community that they are seen and important to lawmakers. 

It seems simplistic to suggest that allowing biological males to compete with females clearly lends itself to an obvious compromise, if only legislators were more compassionate.

Peacemaking is easy when you haven’t appreciated the full strength of the tensions on one or both sides. When “compassion” and “fairness” largely become social media sermonizing, then the solutions look pretty simple and it’s easy to feel outraged at those dragging their feet—presuming that any failure to reach a compromise must come from tribalism or fear. There is certainly a fair amount of both tribalism and fear at play on both sides, but it’s only going to get worse if we demand compromise without articulating the real depth and breadth of the concerns at play. It’s not the fault of lawmakers or their constituents that they haven’t found a way to meet biology in the middle.

This doesn’t mean that we can’t find workable solutions and, more importantly, a galvanized sense that everyone’s needs are important. Instead, it might be our larger expectations that need to be revisited. As Rep. Birkeland points out, this is not merely an infrastructure bill—we are visiting here some of our most fundamental assumptions as a society and it may not be the work of a year or even two. 

Perhaps we can offer lawmakers some grace without assuming that taking concerns about biology and fairness seriouslyor even prioritizing themis evidence that they don’t care about trans kids. If we could believe that, public discussion could find fresh grounding around something more than decontextualized suicide statistics and accusations. Furthermore, by stepping back from this single, heated question and working on a larger strategy, real compromise becomes much more manageable. All along the way, of course, better media accounts will go a long way toward relieving some of the tensions between involved communities.

About the author

Meagan Kohler

Meagan Kohler is a Latter-day Saint wife, boy mom, writer, and occasional philosopher. She also writes on Substack at Mirabile Dictu.
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