Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 302 Second Substitute (2021GS)

Sponsor

Rep. Birkeland, K.

Final action

House/ filed 3/5/2021

Outcome

Failed / filed without passage

Summary

What it does

• This bill:
• defines terms;
• requires schools, local education agencies, and institutions to designate athletic activities by sex;
• prohibits a student of the male sex from participating in an athletic activity designated for female students;
• prohibits certain complaints or investigations based on a school, local education agency, or institution of higher education for maintaining separate athletic activities for female students;
• provides for certain causes of action and waives governmental immunity for those causes of action; and
• provides severability clauses.

Every vote on this bill

Bill text

PRESERVING SPORTS FOR FEMALE STUDENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Kera Birkeland
Senate Sponsor: 
____________
LONG TITLE
General Description:
This bill addresses participation in athletic activities reserved for female students in
public and higher education.
Highlighted Provisions:
This bill:
▸ defines terms;
▸ requires schools, local education agencies, and institutions to designate athletic
activities by sex;
▸ prohibits a student of the male sex from participating in an athletic activity
designated for female students;
▸ prohibits certain complaints or investigations based on a school, local education
agency, or institution of higher education for maintaining separate athletic activities
for female students;
▸ provides for certain causes of action and waives governmental immunity for those
causes of action; and
▸ provides severability clauses.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
63G-7-301
, as last amended by Laws of Utah 2020, Chapters 288, 338, and 365
ENACTS:
53B-16-601
, Utah Code Annotated 1953
53B-16-602
, Utah Code Annotated 1953
53B-16-603
, Utah Code Annotated 1953
53B-16-604
, Utah Code Annotated 1953
53G-6-901
, Utah Code Annotated 1953
53G-6-902
, Utah Code Annotated 1953
53G-6-903
, Utah Code Annotated 1953
53G-6-904
, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
53B-16-601
 is enacted to read:
Part 6. Preserving Sports for Female Students
 53B-16-601.
Definitions.
As used in this part:
(1) "Collegiate athletic activity" means an interscholastic or intramural athletic or
sporting activity that a public or private institution sponsors.
(2) "Institution" means an institution of higher education described in Subsection
52B-1-102
(1).
(3) "Interscholastic" means that a student represents the student's institution in the
collegiate athletic activity in competition against another institution.
(4) "Sex" means the biological, physical condition of being male or female, determined
by an individual's genetics and anatomy at birth.
Section 2. Section 
53B-16-602
 is enacted to read:
 53B-16-602.
Participation in collegiate athletic activities.
Notwithstanding any board rule or policy:
(1) an institution, or a private institution that competes against an institution, shall
expressly designate collegiate athletic activities as one of the following, based on sex:
(a) "male" or "men's";
(b) "female" or "women's"; or
(c) "coed" or "mixed";
(2) a member of the male sex may not participate, and an institution may not allow a
student of the male sex to participate, in a collegiate athletic activity designated as "female" or
"women's"; and
(3) a government entity, licensing or accrediting organization, or athletic association or
organization may not entertain a complaint, open an investigation, or take any other adverse
action against an institution described in Subsection (1) for maintaining separate collegiate
athletic activities for students of the female sex.
Section 3. Section 
53B-16-603
 is enacted to read:
 53B-16-603.
Cause of action.
(1) Except as provided in Subsection (2):
(a) a student who is deprived of an athletic opportunity or suffers any direct or indirect
harm as a result of a violation of this part may bring a private cause of action under this part for
injunctive relief, damages, and any other relief available under law against the institution that
caused the deprivation or harm;
(b) any individual who is subject to retaliation or other adverse action by an institution
or athletic association or organization as a result of reporting a violation of this part to an
employee or representative of the institution or athletic association or organization, or to any
state or federal agency with oversight of institutions in the state, may bring a private cause of
action under this part for injunctive relief, damages, and any other relief available under law
against the institution or athletic association or organization that retaliated or took the adverse
action; and
(c) an institution that suffers any direct or indirect harm as a result of a violation of this
part may bring a private cause of action under this part for injunctive relief, damages, and any
other relief available under law against the government entity, licensing or accrediting
organization, or athletic association or organization that caused the harm.
(2) A person may not bring a civil action under this part later than two years after the
day on which the harm underlying the cause of action occurs.
(3) A person who prevails on a claim brought under this part is entitled to:
(a) monetary damages, including for psychological, emotional, and physical harm;
(b) reasonable attorney fees and costs; and
(c) any other appropriate relief, at the court's discretion.
Section 4. Section 
53B-16-604
 is enacted to read:
 53B-16-604.
Severability.
(1) If any provision of this part or the application of any provision of this part to any
person or circumstance is held invalid by a final decision of a court of competent jurisdiction,
the remainder of this part shall be given effect without the invalidated provision or application.
(2) The provisions of this part are severable.
Section 5. Section 
53G-6-901
 is enacted to read:
Part 9. Preserving Sports for Female Students
 53G-6-901.
Definitions.
As used in this part:
(1) "Athletic association" means an association, as that term is defined in Section
53G-7-1101
.
(2) "Interscholastic" means that a student represents the student's school or LEA in the
school athletic activity in competition against another school or LEA.
(3) "School athletic activity" means an interscholastic or intramural athletic or sporting
activity that an LEA sponsors.
(4) "Sex" means the biological, physical condition of being male or female, determined
by an individual's genetics and anatomy at birth.
Section 6. Section 
53G-6-902
 is enacted to read:
 53G-6-902.
Participation in school athletic activities.
Notwithstanding any state board rule or policy of an athletic association:
(1) a public school or LEA, or a private school that competes against a public school or
LEA, shall expressly designate school athletic activities as one of the following, based on sex:
(a) "male" or "boys'";
(b) "female" or "girls'"; or
(c) "coed" or "mixed";
(2) a student of the male sex may not participate, and an institution may not allow a
student of the male sex to participate, in a school athletic activity designated as "female" or
"girls'"; and
(3) a government entity, licensing or accrediting organization, or athletic association
may not entertain a complaint, open an investigation, or take any other adverse action against a
school or LEA described in Subsection (1) for maintaining separate school athletic activities
for students of the female sex.
Section 7. Section 
53G-6-903
 is enacted to read:
 53G-6-903.
Cause of action.
(1) Except as provided in Subsection (2):
(a) a student who is deprived of an athletic opportunity or suffers any direct or indirect
harm as a result of a violation of this part may bring a private cause of action under this part for
injunctive relief, damages, and any other relief available under law against the school or LEA
that caused the deprivation or harm;
(b) any individual who is subject to retaliation or other adverse action by a school,
LEA, or athletic association as a result of reporting a violation of this part to an employee or
representative of the school, LEA, or athletic association, or to any state or federal agency with
oversight of schools or LEAs in the state, may bring a private cause of action under this part for
injunctive relief, damages, and any other relief available under law against the school, LEA, or
athletic association that retaliated or took the adverse action; and
(c) a school or LEA that suffers any direct or indirect harm as a result of a violation of
this part may bring a private cause of action under this part for injunctive relief, damages, and
any other relief available under law against the government entity, licensing or accrediting
organization, or athletic association or organization that caused the harm.
(2) A person may not bring a civil action under this part later than two years after the
day on which the harm underlying the cause of action occurs.
(3) A person who prevails on a claim brought under this part is entitled to:
(a) monetary damages, including for psychological, emotional, and physical harm;
(b) reasonable attorney fees and costs; and
(c) any other appropriate relief, at the court's discretion.
Section 8. Section 
53G-6-904
 is enacted to read:
 53G-6-904.
Severability.
(1) If any provision of this part or the application of any provision of this part to any
person or circumstance is held invalid by a final decision of a court of competent jurisdiction,
the remainder of this part shall be given effect without the invalidated provision or application.
(2) The provisions of this part are severable.
Section 9. Section 
63G-7-301
 is amended to read:
63G-7-301.
Waivers of immunity.
(1) (a) Immunity from suit of each governmental entity is waived as to any contractual
obligation.
(b) Actions arising out of contractual rights or obligations are not subject to the
requirements of Section 
63G-7-401
, 
63G-7-402
, 
63G-7-403
, or 
63G-7-601
.
(c) The Division of Water Resources is not liable for failure to deliver water from a
reservoir or associated facility authorized by Title 73, Chapter 26, Bear River Development
Act, if the failure to deliver the contractual amount of water is due to drought, other natural
condition, or safety condition that causes a deficiency in the amount of available water.
(2) Immunity from suit of each governmental entity is waived:
(a) as to any action brought to recover, obtain possession of, or quiet title to real or
personal property;
(b) as to any action brought to foreclose mortgages or other liens on real or personal
property, to determine any adverse claim on real or personal property, or to obtain an
adjudication about any mortgage or other lien that the governmental entity may have or claim
on real or personal property;
(c) as to any action based on the negligent destruction, damage, or loss of goods,
merchandise, or other property while it is in the possession of any governmental entity or
employee, if the property was seized for the purpose of forfeiture under any provision of state
law;
(d) subject to Subsection 
63G-7-302
(1), as to any action brought under the authority of
Utah Constitution, Article I, Section 22, for the recovery of compensation from the
governmental entity when the governmental entity has taken or damaged private property for
public uses without just compensation;
(e) subject to Subsection 
63G-7-302
(2), as to any action brought to recover attorney
fees under Sections 
63G-2-405
 and 
63G-2-802
;
(f) for actual damages under Title 67, Chapter 21, Utah Protection of Public Employees
Act;
(g) as to any action brought to obtain relief from a land use regulation that imposes a
substantial burden on the free exercise of religion under Title 63L, Chapter 5, Utah Religious
Land Use Act;
(h) except as provided in Subsection 
63G-7-201
(3), as to any injury caused by:
(i) a defective, unsafe, or dangerous condition of any highway, road, street, alley,
crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other structure located on them; or
(ii) any defective or dangerous condition of a public building, structure, dam, reservoir,
or other public improvement;
(i) subject to Subsections 
63G-7-101
(4) and 
63G-7-201
(4), as to any injury
proximately caused by a negligent act or omission of an employee committed within the scope
of employment; [
and
]
(j) notwithstanding Subsection 
63G-7-101
(4), as to a claim for an injury resulting from
a sexual battery, as provided in Section 
76-9-702.1
, committed:
(i) against a student of a public elementary or secondary school, including a charter
school; and
(ii) by an employee of a public elementary or secondary school or charter school who:
(A) at the time of the sexual battery, held a position of special trust, as defined in
Section 
76-5-404.1
, with respect to the student;
(B) is criminally charged in connection with the sexual battery; and
(C) the public elementary or secondary school or charter school knew or in the exercise
of reasonable care should have known, at the time of the employee's hiring, to be a sex
offender, as defined in Section 
77-41-102
, required to register under Title 77, Chapter 41, Sex
and Kidnap Offender Registry, whose status as a sex offender would have been revealed in a
background check under Section 
53G-11-402
[
.
]
; and
(k) as to a cause of action described in Sections 
53B-16-603
 and 
53G-6-903
 regarding
the preservation of sports for female students.
(3) (a) As used in this Subsection (3):
(i) "Code of conduct" means a code of conduct that:
(A) is not less stringent than a model code of conduct, created by the State Board of
Education, establishing a professional standard of care for preventing the conduct described in
Subsection (3)(a)(i)(D);
(B) is adopted by the applicable local education governing body;
(C) regulates behavior of a school employee toward a student; and
(D) includes a prohibition against any sexual conduct between an employee and a
student and against the employee and student sharing any sexually explicit or lewd
communication, image, or photograph.
(ii) "Local education agency" means:
(A) a school district;
(B) a charter school; or
(C) the Utah Schools for the Deaf and the Blind.
(iii) "Local education governing board" means:
(A) for a school district, the local school board;
(B) for a charter school, the charter school governing board; or
(C) for the Utah Schools for the Deaf and the Blind, the state board.
(iv) "Public school" means a public elementary or secondary school.
(v) "Sexual abuse" means the offense described in Subsection 
76-5-404.1
(2).
(vi) "Sexual battery" means the offense described in Section 
76-9-702.1
, considering
the term "child" in that section to include an individual under age 18.
(b) Notwithstanding Subsection 
63G-7-101
(4), immunity from suit is waived as to a
claim against a local education agency for an injury resulting from a sexual battery or sexual
abuse committed against a student of a public school by a paid employee of the public school
who is criminally charged in connection with the sexual battery or sexual abuse, unless:
(i) at the time of the sexual battery or sexual abuse, the public school was subject to a
code of conduct; and
(ii) before the sexual battery or sexual abuse occurred, the public school had:
(A) provided training on the code of conduct to the employee; and
(B) required the employee to sign a statement acknowledging that the employee has
read and understands the code of conduct.
(4) (a) As used in this Subsection (4):
(i) "Higher education institution" means an institution included within the state system
of higher education under Section 
53B-1-102
.
(ii) "Policy governing behavior" means a policy adopted by a higher education
institution or the Utah Board of Higher Education that:
(A) establishes a professional standard of care for preventing the conduct described in
Subsections (4)(a)(ii)(C) and (D);
(B) regulates behavior of a special trust employee toward a subordinate student;
(C) includes a prohibition against any sexual conduct between a special trust employee
and a subordinate student; and
(D) includes a prohibition against a special trust employee and subordinate student
sharing any sexually explicit or lewd communication, image, or photograph.
(iii) "Sexual battery" means the offense described in Section 
76-9-702.1
.
(iv) "Special trust employee" means an employee of a higher education institution who
is in a position of special trust, as defined in Section 
76-5-404.1
, with a higher education
student.
(v) "Subordinate student" means a student:
(A) of a higher education institution; and
(B) whose educational opportunities could be adversely impacted by a special trust
employee.
(b) Notwithstanding Subsection 
63G-7-101
(4), immunity from suit is waived as to a
claim for an injury resulting from a sexual battery committed against a subordinate student by a
special trust employee, unless:
(i) the institution proves that the special trust employee's behavior that otherwise would
constitute a sexual battery was:
(A) with a subordinate student who was at least 18 years old at the time of the
behavior; and
(B) with the student's consent; or
(ii) (A) at the time of the sexual battery, the higher education institution was subject to
a policy governing behavior; and
(B) before the sexual battery occurred, the higher education institution had taken steps
to implement and enforce the policy governing behavior.