". . . and having done all . . . stand firm." Eph. 6:13


Utah Enacts Law with ‘Massive Loopholes’ for Minors Seeking Gender Transition Procedures

January 30, 2023

If the point was grabbing headlines, Utah’s SB 16 has done the trick. More than a dozen outlets, from Fox News to Newsweek to CNN, described the bill Utah Governor Spencer Cox (R) signed Saturday as a “ban” on “gender-affirming” procedures for minors. Unfortunately, the bill no more banned ideological experiments on children than cross-sex hormones are “gender-affirming.”

The bill imposed a “moratorium” on “hormonal transgender treatment to a patient who: (a) is a minor … and (b) is not diagnosed with gender dysphoria before the effective date of this bill.” But the moratorium will only last until the state Department of Health and Human Services conducts a “systematic medical evidence review,” the purpose of which “is to provide the Legislature with recommendations to consider when deciding whether to lift the moratorium.” The Health Department must submit its completed report to the legislature’s Health and Human Services Committee, which is chaired by the bill’s sponsor.

It’s unclear how long the moratorium will remain in effect. A sunset provision in an earlier bill draft would have repealed both the evidence review and the moratorium in four years (on June 1, 2027), but it was stripped out by a voice vote on the House floor. The final version of the bill contains no timeline or end date for the evidence review; it could last for four years, or it could be done in less than four months. Once the evidence review concludes, the legislature will be free to replace the moratorium with the Health Department’s recommendation — which will likely permit gender transition procedures on minors.

The study will likely reach a pro-transition procedure conclusion because the Utah Health Department will conduct it “in consultation with” three state licensing agencies, the University of Utah, and a Utah hospital system. Even in deeply conservative regions, universities and hospital systems are often deeply invested in lucrative gender-transition procedures. The University of Utah also prescribes gender transition hormones to adolescents. “You don’t want people who stand to make money off of transitioning kids in charge of determining that this is a safe procedure,” Joseph Backholm, FRC’s senior fellow for Biblical Worldview and Strategic Engagement, who has testified on SAFE Act-style bills before multiple state legislatures, told The Washington Stand.

Utah’s state agencies also support gender transition. During the period of the review, one involved agency, the Utah Division of Professional Licensing, will also be issuing “transgender treatment certifications” — essentially approving gender transition treatments for minors.

The Utah Health Department will find no difficulty in tipping the review towards the politically desirable outcome because “so much of the research is politicized,” said Backholm. A peer reviewed study published this month found that two studies which represent “the best available evidence for the practice of youth medical gender transition” are “methodologically flawed and should have never been used in medical settings as justification.” With the research playing to their bias, the Utah Health Department will find steering a scientific review towards their desired outcome to be easier than stealing futures from a child — which is exactly what they’re doing.

Even while the moratorium remains in effect, it won’t protect Utah minors from gender transition procedures. “Written into the law is a loophole so big that anyone who wants to get through it can,” Backholm told TWS. The law prohibits gender transition “surgeries and hormone treatments only until a minor is diagnosed with gender dysphoria,” Backholm explained. “These days, that is a very low bar.” All it takes is an “activist psychiatrist” willing to say that a minor has gender dysphoria, he said, and “everyone knows, ‘Hey, that’s the doctor you’re looking for.’”

Backholm compared the diagnosis exception to an abortion law with an exceptions for the “health of the mother.” Such a term is usually defined broadly to include mental health, which could include any form of stress, which telescopes the exception out to cover just about anything, he explained.

Nearly a quarter of the bill’s length is devoted to building an infrastructure to regulate the ongoing administration of gender transition procedures for minors. The bill directs the Utah Division of Professional Licensing to “create a transgender treatment certification” by July 1. It requires mental health professionals wishing to obtain this certification to complete “40 hours of education related to transgender health care for minors from an approved organization.” That requires the state to approve an organization with staff and curriculum providing training on transgender treatment of minors. It provides a system for individuals to renew their transgender treatment certification at the same time they renew their license to practice. Creating these new procedures hardly sounds like Utah intends to pause all gender transition procedures.

Utah established further transgender infrastructure via detailed treatment guidelines. To provide “hormonal transgender treatment” to a minor, a provider must first treat the minor “for gender dysphoria for at least six months,” including at least three sessions. The provider must “determine if the minor has other physical or mental health conditions” and consider whether “an alternative medical treatment … would provide the minor the best long-term outcome” (with the right activist, that answer is an automatic “no”). The provider must discuss risks, expectations, medical information, and “possible adverse outcomes” with the minor and his or her parents, and then obtain their consent. The provider must “document” this information “in the medical record.” Finally, the provider must obtain a mental health evaluation from a second credentialed provider — that is, from a second individual, who could work out of the same hospital or clinic. Far from obstructing gender transition procedures for minors, Utah Republicans seem to have merely regulated them.

The Utah legislature’s inaction appears more scandalous in light of the medical disclosures they require. Puberty blockers “are not approved by the FDA for the treatment of gender dysphoria,” people must say, who are prescribing them to minors for that very purpose. Not only that, but “possible adverse outcomes of puberty blockers are known to include diminished bone density, pseudotumor cerebri, and long term adult sexual dysfunction.” Oh, and there’s no “research on the long-term risks to children,” nor do we know “the full effects of puberty blockers on brain development and cognition.” That’s written into the law.

The medical disclosure for cross-sex hormones unveiled even graver consequences. For males, the risks can “include blood clots, gallstones, coronary artery disease, heart attacks, tumors of the pituitary gland, strokes, elevated levels of triglycerides in the blood, breast cancer, and irreversible infertility.” For females, the risks can include “erythrocytosis [a blood disorder], severe liver dysfunction, coronary artery disease, hypertension, and increased risk of breast and uterine cancers.” What is this, a commercial during a PGA tournament?

Somehow, Utah legislators acknowledged all these risks and concluded that it was fine for children to be exposed to them — so long as a couple of doctors filled out some forms and checked some boxes.

“This bill is politics,” said Backholm. “These legislators certainly heard from parents who are concerned about how this will affect children. [The legislators] want to tell the parents that they protected kids, but left a massive loophole written in the law. Politicians do this all the time.”

Utah’s feint against gender transition procedures stands in sharp contrast to bills introduced in other states, said Backholm, which say, physicians “may not do [gender transition procedures] under any circumstances.”

Backholm was concerned that other states would use Utah as an example simply because they got a good press cycle. “I am concerned that other states will see this as a way to quickly dismiss the issue, so they can tell the uninformed that they protected kids, without actually protecting kids.” Such a compromise is unacceptable.

Backholm said he is “inherently suspicious of Utah because they have mastered the art of compromise.” He said Utah moderates sold out conservatives by inventing the policy surrender known Fairness for All.

Governor Cox’s record is far from conservative on gender identity issues. In 2022, he vetoed a bill to protect women’s sports before the legislature overrode his veto. Yet Cox was willing to sign this bill on gender transition procedures. He described the weak measure as a “nuanced and thoughtful” strategic pause “as we work to better understand the science and consequences behind these procedures.”

“More and more experts, states, and countries around the world are pausing these permanent and life-altering treatments for new patients until more and better research can help determine the long-term consequences,” Cox said.

The question is, when will Utah?

Joshua Arnold is a senior writer at The Washington Stand.