File photo (David McNew/Getty Images)
File photo (David McNew/Getty Images)

A member of the Utah House of Representatives says even though there hasn’t been a problem in the state’s schools regarding transgender students’ use of school restrooms, he’s offering a solution anyway.

Rep. Michael Kennedy, a Republican and a physician by profession, has put forward HB87, which would essentially ban transgender students from using bathrooms designated for males or females. Instead, schools would be directed to provide “alternate bathroom accommodations” for kids whose “consistently-asserted gender identity” does not correspond to the bill’s definition of gender. More on that definition in a moment.

Unsurprisingly, LGBT rights activists have denounced Kennedy’s proposal. From the Salt Lake Tribune:

Brandie Balken, executive director of Equality Utah, said the proposal is “at least misguided and at worst cruel.”

She said, “To require parents to provide proof of phenotype of a child to participate in school … is an invasion of privacy.”

It is inappropriate, Balken added, to isolate children over gender-identity issues.

Kennedy said last week in the Provo-based Daily Herald that his bill is a response to California’s recently enacted AB1266, which among other provisions allows students to use bathrooms and locker rooms “consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records.”

Kennedy told the Herald, “We are just trying to make sure people are comfortable.”

His bill solves the issue of gender-appropriate bathroom use by creating a new definition for “gender” under Utah state law:

“Gender” means the either male or female phenotype designation of an individual as documented by:
(i) the individual’s birth certificate, if the individual has not obtained a designation under Subsection (9)(a)(ii); or
(ii) a signed, written document from a physician, as defined in Section 58-67-102 , that, based on a physical examination of the individual’s genitalia, designates the individual phenotypically as either male or female …

Elsewhere, the bill seeks to “prohibit a student from using a gender-segregated public school bathroom that does not correspond to the student’s phenotype.” (And if you’re wondering what a bathroom is, the bill can help: “‘Bathroom means a room intended for more than one occupant at a time that: (i) contains a toilet or a urinal; or (ii) is used by occupants to undress and dress.”)

If, like me, you’re thrown by the word “phenotype,” Merriam-Webster defines it as “the observable properties of an organism that are produced by the interaction of the genotype and the environment.”

What sort of “observable properties” are we talking about? The textbook “Neuroscience” (on the National Center for Biotechnology Information website) explains that “phenotypic sex refers to an individual’s sex as determined by their internal and external genitalia, expression of secondary sex characteristics, and behavior.”

So, according to Kennedy’s proposal, what bathroom you use is all about the equipment you’re carrying. It’s got nothing to do with gender identity, which the bill dismisses as “an individual’s own opinion of whether the individual is (i) male; (ii) female; (iii) neither male nor female; (iv) both male and female; or (v) another designation.”

It’s possible, though, that Kennedy’s proposal won’t see action for awhile. That’s because leaders of the state Legislature are talking about declaring a moratorium on bills dealing with gay rights and possibly other LGBT issues until a federal court challenge to the state’s ban on same-sex marriage is resolved.

  • HazumuOsaragi

    Why do conservatives hypersexualize the bathroom and treat urinating/defecating as a gateway sexual activity requiring strict policing?


Dan Brekke

Dan Brekke (Twitter: @danbrekke) has worked in media ever since Nixon's first term, when newspapers were still using hot type. He had moved on to online news by the time Bill Clinton met Monica Lewinsky. He's been at KQED since 2007, is an enthusiastic practitioner of radio and online journalism and will talk to you about absolutely anything. Reach Dan Brekke at

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