Should Utah’s trans sports commission be more secretive after lawmaker shared private details?

“I think we are all bound by a duty of confidentiality and protecting these individuals’ safety,” Sen. Mike Kennedy said of his legislative proposal.

(Trent Nelson | The Salt Lake Tribune) The Utah Capitol in Salt Lake City on Thursday, Feb. 8, 2024. Utah's transgender sports commission may get more secretive after a lawmaker shared details about the group.

Within 24 hours of a Utah legislator posting protected information about transgender students, another lawmaker released a bill that would expand the secrecy around the group that determines whether transgender athletes can participate in high school sports.

A player’s name, as well as any rulings made by Utah’s School Activity Eligibility Commission, currently are considered protected records. The commission’s determinations are made in closed session and are shared only with the athlete and their local athletic association.

Republican Sen. Michael Kennedy’s School Activity Eligibility Commission Modifications, or SB219, would widen that protection to all records held by the commission — whether they pertain to a specific student or not.

In a comment on a Facebook post this week, Morgan Republican Rep. Kera Birkeland wrote that the commission has had at least four transgender students come before it, and that “all 4 have been denied participation on the team that doesn’t align with their sex at birth.”

(Screenshot) On Wednesday, Feb. 7, 2023, state Rep. Kera Birkeland commented on a post by state school board member Natalie Cline, where Cline had accused a high school athlete of being transgender.

Kennedy, a lawyer and doctor from Alpine, told The Salt Lake Tribune that he wasn’t willing to comment on how Birkeland’s remarks would be viewed under his bill. But he said, “I think we are all bound by a duty of confidentiality and protecting these individuals’ safety.”

The bill, he said, “for us to enhance [students’] protections as they go through the commission.” It is not retroactive, he said. If it needs to be amended to further protect students, however, Kennedy said he is open to changing it.

Last year, Kennedy sponsored a law that banned most gender-affirming health care for transgender minors in Utah.

Senate President Stuart Adams told reporters Friday, “I think the bill is trying to protect kids, and I think we’re very sensitive to information being shared about kids.” He continued, “I would doubt that it had much effect on that. I’m not an attorney, let’s get the attorneys in the room and decide.”

Birkeland was reacting to a Facebook post made by ultra-conservative Utah State Board of Education member Natalie Cline. Cline had singled out a high school athlete and suggested she was transgender, sharing photos of her.

In her reply, Birkeland also referenced “laws related to student athletics” — laws she has led the charge on that limit transgender athletes’ participation in school sports. The lawmaker said Cline’s post was “in poor taste,” and then disclosed that the commission has denied requests from four transgender students.

At a weekly meeting with reporters Friday afternoon, House Speaker Mike Schultz said Birkeland obtained that information from reporting by The Tribune.

But The Tribune did not report any rulings by the commission, prior to Birkeland’s post. It also had not reported a definite number of students whose eligiblity had been judged by the commission. Based on agendas, The Tribune reported in October that the commission had met five times at that point, and appeared to have deliberated on at least four student cases.

(Francisco Kjolseth | The Salt Lake Tribune) Rep. Robert Spendlove, R-Sandy, left, and House Speaker Mike Schultz, R-Hooper, answer questions during their weekly House media availability at the Utah Capitol on Friday, Feb. 9, 2024.

Parents who have spoken during the public portion of commission meetings have said they haven’t been given any specific criteria that their kids would need to meet in order to compete, but they have not disclosed commission rulings.

State records law allows members of the Legislature to receive protected records through a subpoena. It is unclear if that’s how Birkeland seems to have knowledge of the commission’s rulings. No matter how the lawmaker received the information, she is prohibited from publicly disclosing it.

Under the Government Records Access and Management Act, a person who “intentionally discloses” records that are classified as protected could be charged with a class B misdemeanor. That can apply to “a public employee or other person who has lawful access to any private, controlled, or protected record.” If charged, Birkeland could face up to six months in jail.

Kennedy’s bill would protect “any record of the commission, including any communication between an athletic association and the commission; and any record that a school or (local educational agency) LEA possesses.”

The statute currently says: “Any record of the commission, including any communication between an athletic association and the commission, that relates to a specific student shall be classified as a protected record.”