Utah, again, enacts the first new anti-LGBTQ law of the year

Gov. Spencer Cox signed the anti-trans law targeting school bathrooms and government-owned public changing rooms. Also: Florida's anti-trans driver's license moves.

Utah Gov. Spencer Cox’s website homepage.

This week, Utah’s Republican governor, Spencer Cox, signed the first new anti-LGBTQ bill of the year into law.

It was the second year in a row that Utah was the first in the nation to did so.

S.B. 257, as signed into law by Cox, bans students from using the restroom that matches their gender identity and sets bars many transgender people from changing rooms that match their gender identity in government-owned spaces, with the latter at risk of criminal penalty.

The signing marked a continued departure for Cox from 2022, when the Utah governor vetoed an anti-trans bill relating to sports participation, noting in his veto statement, “Politically, it would be much easier and better for me to simply sign the bill.”

Since then, apparently, Cox has chosen to take the politically easier path.

S.B. 257 bill moved quickly through the legislature, even after the House did not agree to changes made by the Senate to soften the bill, forcing the legislation to a conference committee that settled on a middle ground between the extremely harsh, invasive bathroom ban passed by the House and the slightly-less-harsh changing room-focused ban passed by the Senate.

On Jan. 30, Cox signed S.B. 257 into law, claiming, “We want public facilities that are safe and accommodating for everyone and this bill increases privacy protections for all.”

All, apparently, does not include transgender people, whose privacy is essentially ended. In school, for example, where trans students are barred from using the restroom that matches their gender identity (and gender presentation), there are four bathroom options for a trans student — all of which would “other,” if not implicitly out, any such student every time they had to use the bathroom:

When it comes to changing rooms in any government-owned building, trans people can face invasive questions before they would be allowed to use the changing room that matches their gender identity, including proof of a changed birth certificate and proof of “primary sex characteristic surgical procedure.”

Violations could lead to criminal charges.

Under the law, then, a trans person who “enters a sex-designated changing room in violation of” the changing-room provision could face a misdemeanor criminal trespass charge “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.”

That, it seems to me centers circular reasoning into the middle of the state’s criminal law. If you don’t think it’s reasonable for a person to be affronted or alarmed by a transgender person’s existence, then you probably don’t think such a law is needed or justified. If you think such fear is reasonable, you likely support the law.

Circular reasoning leads to other problems.

In continued admission that this law will not only subject transgender people to efforts to remove them from changing rooms — or even prosecute them for doing so — the final law contains language explaining how both cisgender and transgender people can stop that.

It’s a truly astounding admission of how unfairly and unnecessarily invasive a law is if you have to write in a defense to criminal prosecution for people who are in no way even intended to be the focus of the law.

The law also maintains more broad definitions of “privacy spaces” beyond changing rooms that include restrooms, which could lead to mischief going forward.

Under the law, the state’s auditor and attorney general will have responsibility for enforcing the law’s implementation by local and state governmental entities. Violations of a local government’s responsibilities under law can lead to “a fine of up to $10,000 per violation per day.”

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Florida targets trans drivers

Although it’s not a law, another significant anti-transgender move came to light this week in the form of new restrictions preventing transgender Floridians from updating their gender marker on their driver’s license — with a warning of potential license revocation or even criminal consequences for failure to follow the new policy.

Announced in a Jan. 26 letter that was first published by Alejandra Caraballo, the deputy executive director of the Florida Highway Safety and Motor Vehicles Department, Robert Kynoch, told county tax collectors that the department had rescinded guidance that allowed people to change their gender markers on their licenses.

Kynoch claimed in the letter that the state determined the longstanding guidance allowing the gender-marker change was “not supported by statutory authority.” He claimed this was necessary as well because, “Permitting an individual to alter his or her license to reflect an internal sense of gender role or identity, which is neither immutable nor objectively verifiable, undermines the purpose of an identification record and can frustrate the state’s ability to enforce its laws.”

The letter ends with the enforcement threat: “misrepresenting one’s gender, understood as sex, on a driver license constitutes fraud under s. 322,212, F.S., and subjects an offender to criminal and civil penalties, including cancellation, suspension, or revocation of his or her driver license, e.g., s. 322.22. and 322.27, F.S.”

Molly Best, the communications director for the department, told Law Dork in a statement that “the recission [sic] pertains solely to replacement license requests. No changes have been made to the process of establishing gender on a newly issued Florida credential, governed by s. 322.08, F.S.”

Under Florida Statutes 322.08, and as confirmed by the technical advisory that went out announcing the rescission, a person’s listed gender on a new “driver license or identification card must be taken from a primary identification document.”

Per the statute, those include: “A driver license record or identification card record from another jurisdiction that required the applicant to submit a document for identification which is substantially similar to [the other possible primary identification documents],” “a certified copy of a United States birth certificate,” “a valid, unexpired United States passport,” a Homeland Security-issued naturalization certificate, a green card, “a Consular Report of Birth Abroad provided by the United States Department of State,” an unexpired Homeland Security-issued employment authorization card, or “proof of nonimmigrant classification provided by the United States Department of Homeland Security.”

In other words, only those people who have already obtained a change to their gender marker on a permanent record could receive a license that reflected their gender identity.

Already, as Erin Reed reported Saturday morning, congressional Democrats in Florida — led by Rep. Maxwell Frost — are fighting the memo, urging the Biden administration to use the Real ID Act to push back against the ban on license changes — and any other similar moves — through rulemaking authority under the federal law:

Additionally, and as both Reed and the congressional letter note, the gender marker-change rescission is not the only step at issue here. Legislation is under consideration in the Florida House (H.B. 1639) that would change “gender” to “sex” in the Florida driver’s license law and then define “sex” to exclude trans people from being able to obtain IDs that reflect their gender identity at all — even on a new driver’s license.

The bill has not passed either chamber thus far, although it was advanced out of the House Insurance & Banking Subcommittee on Feb. 2.