Text of UT HB 302 (2021)

H.B. 302 LEGISLATIVE GENERAL COUNSEL 6 Approved for Filing: M.E. Curtis 6 6 02-03-21 11:26 AM 6 H.B. 302 1 PRESERVING SPORTS FOR FEMALE STUDENTS 2 2021 GENERAL SESSION 3 STATE OF UTAH 4 Chief Sponsor: Kera Birkeland 5 Senate Sponsor: ____________ 6 7 LONG TITLE 8 General Description: 9 This bill addresses participation in athletic activities reserved for female students in 10 public and higher education. 11 Highlighted Provisions: 12 This bill: 13 < defines terms; 14 < requires schools, local education agencies, and institutions to designate athletic 15 activities by sex; 16 < prohibits a student of the male sex from participating in an athletic activity 17 designated for female students; 18 < prohibits certain complaints or investigations based on a school, local education 19 agency, or institution of higher education for maintaining separate athletic activities 20 for female students; 21 < provides for certain causes of action and waives governmental immunity for those 22 causes of action; and 23 < provides severability clauses. 24 Money Appropriated in this Bill: 25 None 26 Other Special Clauses: 27 None *HB0302* H.B. 302 02-03-21 11:26 AM - 2 - 28 Utah Code Sections Affected: 29 AMENDS: 30 63G-7-301, as last amended by Laws of Utah 2020, Chapters 288, 338, and 365 31 ENACTS: 32 53B-16-601, Utah Code Annotated 1953 33 53B-16-602, Utah Code Annotated 1953 34 53B-16-603, Utah Code Annotated 1953 35 53B-16-604, Utah Code Annotated 1953 36 53G-6-901, Utah Code Annotated 1953 37 53G-6-902, Utah Code Annotated 1953 38 53G-6-903, Utah Code Annotated 1953 39 53G-6-904, Utah Code Annotated 1953 40 41 Be it enacted by the Legislature of the state of Utah: 42 Section 1. Section 53B-16-601 is enacted to read: 43 Part 6. Preserving Sports for Female Students 44 53B-16-601. Definitions. 45 As used in this part: 46 (1) "Collegiate athletic activity" means an interscholastic or intramural athletic or 47 sporting activity that a public or private institution sponsors. 48 (2) "Institution" means an institution of higher education described in Subsection 49 52B-1-102(1). 50 (3) "Interscholastic" means that a student represents the student's institution in the 51 collegiate athletic activity in competition against another institution. 52 (4) "Sex" means the biological, physical condition of being male or female, determined 53 by an individual's genetics and anatomy at birth. 54 Section 2. Section 53B-16-602 is enacted to read: 55 53B-16-602. Participation in collegiate athletic activities. 56 Notwithstanding any board rule or policy: 57 (1) an institution, or a private institution that competes against an institution, shall 58 expressly designate collegiate athletic activities as one of the following, based on sex: 02-03-21 11:26 AM H.B. 302 - 3 - 59 (a) "male" or "men's"; 60 (b) "female" or "women's"; or 61 (c) "coed" or "mixed"; 62 (2) a member of the male sex may not participate, and an institution may not allow a 63 student of the male sex to participate, in a collegiate athletic activity designated as "female" or 64 "women's"; and 65 (3) a government entity, licensing or accrediting organization, or athletic association or 66 organization may not entertain a complaint, open an investigation, or take any other adverse 67 action against an institution described in Subsection (1) for maintaining separate collegiate 68 athletic activities for students of the female sex. 69 Section 3. Section 53B-16-603 is enacted to read: 70 53B-16-603. Cause of action. 71 (1) Except as provided in Subsection (2): 72 (a) a student who is deprived of an athletic opportunity or suffers any direct or indirect 73 harm as a result of a violation of this part may bring a private cause of action under this part for 74 injunctive relief, damages, and any other relief available under law against the institution that 75 caused the deprivation or harm; 76 (b) any individual who is subject to retaliation or other adverse action by an institution 77 or athletic association or organization as a result of reporting a violation of this part to an 78 employee or representative of the institution or athletic association or organization, or to any 79 state or federal agency with oversight of institutions in the state, may bring a private cause of 80 action under this part for injunctive relief, damages, and any other relief available under law 81 against the institution or athletic association or organization that retaliated or took the adverse 82 action; and 83 (c) an institution that suffers any direct or indirect harm as a result of a violation of this 84 part may bring a private cause of action under this part for injunctive relief, damages, and any 85 other relief available under law against the government entity, licensing or accrediting 86 organization, or athletic association or organization that caused the harm. 87 (2) A person may not bring a civil action under this part later than two years after the 88 day on which the harm underlying the cause of action occurs. 89 (3) A person who prevails on a claim brought under this part is entitled to: H.B. 302 02-03-21 11:26 AM - 4 - 90 (a) monetary damages, including for psychological, emotional, and physical harm; 91 (b) reasonable attorney fees and costs; and 92 (c) any other appropriate relief, at the court's discretion. 93 Section 4. Section 53B-16-604 is enacted to read: 94 53B-16-604. Severability. 95 (1) If any provision of this part or the application of any provision of this part to any 96 person or circumstance is held invalid by a final decision of a court of competent jurisdiction, 97 the remainder of this part shall be given effect without the invalidated provision or application. 98 (2) The provisions of this part are severable. 99 Section 5. Section 53G-6-901 is enacted to read: 100 Part 9. Preserving Sports for Female Students 101 53G-6-901. Definitions. 102 As used in this part: 103 (1) "Athletic association" means an association, as that term is defined in Section 104 53G-7-1101. 105 (2) "Interscholastic" means that a student represents the student's school or LEA in the 106 school athletic activity in competition against another school or LEA. 107 (3) "School athletic activity" means an interscholastic or intramural athletic or sporting 108 activity that an LEA sponsors. 109 (4) "Sex" means the biological, physical condition of being male or female, determined 110 by an individual's genetics and anatomy at birth. 111 Section 6. Section 53G-6-902 is enacted to read: 112 53G-6-902. Participation in school athletic activities. 113 Notwithstanding any state board rule or policy of an athletic association: 114 (1) a public school or LEA, or a private school that competes against a public school or 115 LEA, shall expressly designate school athletic activities as one of the following, based on sex: 116 (a) "male" or "boys'"; 117 (b) "female" or "girls'"; or 118 (c) "coed" or "mixed"; 119 (2) a student of the male sex may not participate, and an institution may not allow a 120 student of the male sex to participate, in a school athletic activity designated as "female" or 02-03-21 11:26 AM H.B. 302 - 5 - 121 "girls'"; and 122 (3) a government entity, licensing or accrediting organization, or athletic association 123 may not entertain a complaint, open an investigation, or take any other adverse action against a 124 school or LEA described in Subsection (1) for maintaining separate school athletic activities 125 for students of the female sex. 126 Section 7. Section 53G-6-903 is enacted to read: 127 53G-6-903. Cause of action. 128 (1) Except as provided in Subsection (2): 129 (a) a student who is deprived of an athletic opportunity or suffers any direct or indirect 130 harm as a result of a violation of this part may bring a private cause of action under this part for 131 injunctive relief, damages, and any other relief available under law against the school or LEA 132 that caused the deprivation or harm; 133 (b) any individual who is subject to retaliation or other adverse action by a school, 134 LEA, or athletic association as a result of reporting a violation of this part to an employee or 135 representative of the school, LEA, or athletic association, or to any state or federal agency with 136 oversight of schools or LEAs in the state, may bring a private cause of action under this part for 137 injunctive relief, damages, and any other relief available under law against the school, LEA, or 138 athletic association that retaliated or took the adverse action; and 139 (c) a school or LEA that suffers any direct or indirect harm as a result of a violation of 140 this part may bring a private cause of action under this part for injunctive relief, damages, and 141 any other relief available under law against the government entity, licensing or accrediting 142 organization, or athletic association or organization that caused the harm. 143 (2) A person may not bring a civil action under this part later than two years after the 144 day on which the harm underlying the cause of action occurs. 145 (3) A person who prevails on a claim brought under this part is entitled to: 146 (a) monetary damages, including for psychological, emotional, and physical harm; 147 (b) reasonable attorney fees and costs; and 148 (c) any other appropriate relief, at the court's discretion. 149 Section 8. Section 53G-6-904 is enacted to read: 150 53G-6-904. Severability. 151 (1) If any provision of this part or the application of any provision of this part to any H.B. 302 02-03-21 11:26 AM - 6 - 152 person or circumstance is held invalid by a final decision of a court of competent jurisdiction, 153 the remainder of this part shall be given effect without the invalidated provision or application. 154 (2) The provisions of this part are severable. 155 Section 9. Section 63G-7-301 is amended to read: 156 63G-7-301. Waivers of immunity. 157 (1) (a) Immunity from suit of each governmental entity is waived as to any contractual 158 obligation. 159 (b) Actions arising out of contractual rights or obligations are not subject to the 160 requirements of Section 63G-7-401, 63G-7-402, 63G-7-403, or 63G-7-601. 161 (c) The Division of Water Resources is not liable for failure to deliver water from a 162 reservoir or associated facility authorized by Title 73, Chapter 26, Bear River Development 163 Act, if the failure to deliver the contractual amount of water is due to drought, other natural 164 condition, or safety condition that causes a deficiency in the amount of available water. 165 (2) Immunity from suit of each governmental entity is waived: 166 (a) as to any action brought to recover, obtain possession of, or quiet title to real or 167 personal property; 168 (b) as to any action brought to foreclose mortgages or other liens on real or personal 169 property, to determine any adverse claim on real or personal property, or to obtain an 170 adjudication about any mortgage or other lien that the governmental entity may have or claim 171 on real or personal property; 172 (c) as to any action based on the negligent destruction, damage, or loss of goods, 173 merchandise, or other property while it is in the possession of any governmental entity or 174 employee, if the property was seized for the purpose of forfeiture under any provision of state 175 law; 176 (d) subject to Subsection 63G-7-302(1), as to any action brought under the authority of 177 Utah Constitution, Article I, Section 22, for the recovery of compensation from the 178 governmental entity when the governmental entity has taken or damaged private property for 179 public uses without just compensation; 180 (e) subject to Subsection 63G-7-302(2), as to any action brought to recover attorney 181 fees under Sections 63G-2-405 and 63G-2-802; 182 (f) for actual damages under Title 67, Chapter 21, Utah Protection of Public Employees 02-03-21 11:26 AM H.B. 302 - 7 - 183 Act; 184 (g) as to any action brought to obtain relief from a land use regulation that imposes a 185 substantial burden on the free exercise of religion under Title 63L, Chapter 5, Utah Religious 186 Land Use Act; 187 (h) except as provided in Subsection 63G-7-201(3), as to any injury caused by: 188 (i) a defective, unsafe, or dangerous condition of any highway, road, street, alley, 189 crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other structure located on them; or 190 (ii) any defective or dangerous condition of a public building, structure, dam, reservoir, 191 or other public improvement; 192 (i) subject to Subsections 63G-7-101(4) and 63G-7-201(4), as to any injury 193 proximately caused by a negligent act or omission of an employee committed within the scope 194 of employment; [and] 195 (j) notwithstanding Subsection 63G-7-101(4), as to a claim for an injury resulting from 196 a sexual battery, as provided in Section 76-9-702.1, committed: 197 (i) against a student of a public elementary or secondary school, including a charter 198 school; and 199 (ii) by an employee of a public elementary or secondary school or charter school who: 200 (A) at the time of the sexual battery, held a position of special trust, as defined in 201 Section 76-5-404.1, with respect to the student; 202 (B) is criminally charged in connection with the sexual battery; and 203 (C) the public elementary or secondary school or charter school knew or in the exercise 204 of reasonable care should have known, at the time of the employee's hiring, to be a sex 205 offender, as defined in Section 77-41-102, required to register under Title 77, Chapter 41, Sex 206 and Kidnap Offender Registry, whose status as a sex offender would have been revealed in a 207 background check under Section 53G-11-402[.]; and 208 (k) as to a cause of action described in Sections 53B-16-603 and 53G-6-903 regarding 209 the preservation of sports for female students. 210 (3) (a) As used in this Subsection (3): 211 (i) "Code of conduct" means a code of conduct that: 212 (A) is not less stringent than a model code of conduct, created by the State Board of 213 Education, establishing a professional standard of care for preventing the conduct described in H.B. 302 02-03-21 11:26 AM - 8 - 214 Subsection (3)(a)(i)(D); 215 (B) is adopted by the applicable local education governing body; 216 (C) regulates behavior of a school employee toward a student; and 217 (D) includes a prohibition against any sexual conduct between an employee and a 218 student and against the employee and student sharing any sexually explicit or lewd 219 communication, image, or photograph. 220 (ii) "Local education agency" means: 221 (A) a school district; 222 (B) a charter school; or 223 (C) the Utah Schools for the Deaf and the Blind. 224 (iii) "Local education governing board" means: 225 (A) for a school district, the local school board; 226 (B) for a charter school, the charter school governing board; or 227 (C) for the Utah Schools for the Deaf and the Blind, the state board. 228 (iv) "Public school" means a public elementary or secondary school. 229 (v) "Sexual abuse" means the offense described in Subsection 76-5-404.1(2). 230 (vi) "Sexual battery" means the offense described in Section 76-9-702.1, considering 231 the term "child" in that section to include an individual under age 18. 232 (b) Notwithstanding Subsection 63G-7-101(4), immunity from suit is waived as to a 233 claim against a local education agency for an injury resulting from a sexual battery or sexual 234 abuse committed against a student of a public school by a paid employee of the public school 235 who is criminally charged in connection with the sexual battery or sexual abuse, unless: 236 (i) at the time of the sexual battery or sexual abuse, the public school was subject to a 237 code of conduct; and 238 (ii) before the sexual battery or sexual abuse occurred, the public school had: 239 (A) provided training on the code of conduct to the employee; and 240 (B) required the employee to sign a statement acknowledging that the employee has 241 read and understands the code of conduct. 242 (4) (a) As used in this Subsection (4): 243 (i) "Higher education institution" means an institution included within the state system 244 of higher education under Section 53B-1-102. 02-03-21 11:26 AM H.B. 302 - 9 - 245 (ii) "Policy governing behavior" means a policy adopted by a higher education 246 institution or the Utah Board of Higher Education that: 247 (A) establishes a professional standard of care for preventing the conduct described in 248 Subsections (4)(a)(ii)(C) and (D); 249 (B) regulates behavior of a special trust employee toward a subordinate student; 250 (C) includes a prohibition against any sexual conduct between a special trust employee 251 and a subordinate student; and 252 (D) includes a prohibition against a special trust employee and subordinate student 253 sharing any sexually explicit or lewd communication, image, or photograph. 254 (iii) "Sexual battery" means the offense described in Section 76-9-702.1. 255 (iv) "Special trust employee" means an employee of a higher education institution who 256 is in a position of special trust, as defined in Section 76-5-404.1, with a higher education 257 student. 258 (v) "Subordinate student" means a student: 259 (A) of a higher education institution; and 260 (B) whose educational opportunities could be adversely impacted by a special trust 261 employee. 262 (b) Notwithstanding Subsection 63G-7-101(4), immunity from suit is waived as to a 263 claim for an injury resulting from a sexual battery committed against a subordinate student by a 264 special trust employee, unless: 265 (i) the institution proves that the special trust employee's behavior that otherwise would 266 constitute a sexual battery was: 267 (A) with a subordinate student who was at least 18 years old at the time of the 268 behavior; and 269 (B) with the student's consent; or 270 (ii) (A) at the time of the sexual battery, the higher education institution was subject to 271 a policy governing behavior; and 272 (B) before the sexual battery occurred, the higher education institution had taken steps 273 to implement and enforce the policy governing behavior.