Utah lawmaker could face charges for violating law she herself crafted

“Any time there’s a violation of the law, we’re happy to review those matters once they’re brought to us,” the Salt Lake County district attorney said when asked about Rep. Kera Birkeland’s post.

(Rick Egan | The Salt Lake Tribune) Rep. Kera Birkeland, R-Morgan, speaks at the Capitol on Friday, Jan. 26, 2024. Birkeland shared protected information about transgender athlete cases while commenting on a social media post on Wednesday, Feb. 7, 2024, and could face consequences for that.

A state lawmaker shared protected information — in apparent violation of the law she crafted — when she commented publicly about the determinations made in cases where transgender high school athletes in Utah have petitioned to compete.

And it’s possible that Rep. Kera Birkeland, R-Morgan, could face criminal charges for that.

Salt Lake County District Attorney Sim Gill said the students whose information Birkeland shared could choose to file a complaint with their local police department. After an investigation, his office would screen that for prosecution, if it’s within the county.

“Any time there’s a violation of the law, we’re happy to review those matters once they’re brought to us,” Gill said.

Gill said if complaints don’t come in, he also would consider starting the process himself to look at the situation, which he has the jurisdiction to do.

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

The Utah attorney general’s office, which has statewide jurisdiction, could also take it up, but a spokesperson there said that would be unlikely without someone first filing a complaint against Birkeland’s actions.

“We don’t just look around for things to take on,” said spokesperson Rich Piatt. But he said the office would investigate whatever complaints come in.

Piatt said he believes a complaint could also be filed through the Legislature for official misconduct.

When asked whether Birkeland could face consequences for her comment, Senate President Stuart Adams said during a daily meeting with reporters, “I think we’re letting this play out, and we’ll know as things proceed. It’s a little early to try to predict that, but thank you.”

Leadership for the House of Representatives, the body Birkeland is a member of, meets with reporters once a week, on Fridays and has not commented yet.

But House Minority Whip Jennifer Dailey-Provost weighed in, saying in a statement, “We’re consulting with legal counsel to assess the extent of discussion surrounding [Natalie Cline’s] post and its impact,” adding that she supports calls for Cline’s impeachment.

“It’s essential for us, as members of the Utah State Legislature, to consider how the bills we pass targeting the transgender community contribute to such incidents,” Dailey-Provost wrote.

According to Utah law, a person who “intentionally discloses” records that are classified as protected could be charged with a class B misdemeanor. Gill confirmed that is the level of the charge and the part of the law that applies to Birkeland’s likely violation. And the law states that includes “a public employee or other person who has lawful access to any private, controlled, or protected record,” which would apply to Birkeland.

On Wednesday, Birkeland — who has led the push in Utah to ban transgender girls from competing in high school sports — shared the protected information when she commented on a Facebook post that conservative Utah State Board of Education member Natalie Cline had shared the day before.

In her post, Cline singled out a high school athlete and suggested the minor was transgender, sharing photos of her. The post implied that that girl should not be able to play. Cline later acknowledged the girl is not transgender after deleting the post and sharing an apology — but not before many of her followers commented and threatened violence against the student.

[Read more: Utah school board member Natalie Cline questions high school athlete’s gender, causing social media uproar]

Responding to the post, Birkeland wrote that Cline’s comments were “in poor taste” and that the school board member should let the “laws regarding student athletics” play out instead of trying to personally police students’ bodies.

Birkeland wrote the law on that with HB11, which passed in the Legislature in 2022 with a vote over-riding the governor’s veto. It is an outright ban on transgender girls competing on girls’ teams in Utah high schools. But while a lawsuit against that moves forward and there is a pause on the ban, a commission was created under Birkeland’s measure to weigh individual cases of athletes who want to play.

Birkeland referenced the commission’s work in her comment to Cline, which is where the violation comes in.

The lawmaker said it 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.

That corresponds with what parents have said about going before the commission, saying the standards seem impassable for any kid to be allowed to play. But the specific rulings on their cases have never been publicly revealed before.

A player’s name, as well as any rulings — even detached from a specific name — are considered protected records under the language of Birkeland’s measure that created the School Activity Eligibility Commission.

The law notes that any determinations made by the commission are done so in closed session and are to be shared only with the athlete and their local athletic association for purposes of confirming eligibility to play.

There is a provision in state records law that allows members of the Utah Legislature to receive protected records. It is unclear if that’s how Birkeland seems to be familiar with the commission’s rulings. But, regardless of how she received protected information, she is still prohibited from publicly sharing it.

The Utah attorney general’s office, which oversees the transgender sports eligibility commission, has previously declined to provide the numbers on how many cases there have been and how those were decided, citing those explicit privacy provisions of the law.

Birkeland has not responded to requests for comment from The Tribune. A spokesperson for the Utah House, responding for her, only stated, “I believe Natalie Cline has since deleted her post” and cited past Tribune reporting on commission meetings.

[Read more: Utah school board promises ‘prompt action’ against Natalie Cline — the Legislature eyes impeachment]

Birkeland tweeted about Cline’s post, but did not address sharing the protected information.

In her tweet Thursday, the lawmaker urged Cline to resign — as others have, as well. Birkeland also reiterated the law she sponsored on transgender athletes.

“Utah has a process in place to protect our student athletes from this type of targeted harassment,” Birkeland wrote. “If a student is on the court, field, or track – no adult, elected official, parent, or athlete should question that student’s eligibility.”

Some commenters have pushed back, though, saying Birkeland’s trans sports law — and another she pushed for this year banning transgender Utahns from using restrooms and locker rooms that don’t correspond with their gender identity in government buildings — have been the impetus for people like Cline to attack the transgender community.

The Tribune has previously noted that the commission appears to have talked about four student cases based on discussions during their open portions where students have been identified as Student A, Student B, Student C and Student D. The commission is required to follow open meetings laws, and so it must post an agenda and minutes from its discussions. It has met six times.

The chair of the trans sports commission, sports medicine physician Dr. Michael Henrie, also did not respond to a request for comment Wednesday on Birkeland’s disclosure of the rulings in those cases.

Correction, 9:25 a.m. • This story was updated to correctly spell Rep. Kera Birkeland’s name.