“I think we are all bound by a duty of confidentiality and to protect the safety of these individuals,” Sen. Mike Kennedy said of his legislative proposal.
Within 24 hours of a Utah lawmaker posting protected information about transgender students, another lawmaker released a bill that would expand the secrecy surrounding the body that determines whether transgender athletes can participate in high school sports.
A player’s name, as well as any decision made by the Utah School Activity Eligibility Commission, are currently considered protected records. The committee’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 Amendments, or SB219, would extend that protection to all records held by the commission — whether they belong to a specific student or not.
In a comment on a Facebook post this week, Morgan Republican Rep. Kera Birkeland wrote that the committee has had at least four transgender students come before it and that “all four have been denied participation on the team that does not match them. sex at birth.”
Kennedy, a lawyer and physician from Alpine, told The Salt Lake Tribune that he was not ready 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 to protect the safety of these individuals.”
The bill, he said, “to improve it.” [students’] defenses as they move through the commission.” It is not retroactive, he said. However, if it needs to be changed to further protect students, 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 children, and I think we’re very sensitive about information being released about children.” He continued, “I would suspect that had a lot of influence on this. I’m not a lawyer, let’s get the lawyers 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 by sharing her photos.
In her response, Birkeland also referred to “laws related to student athletics” — laws she has led the charge to limit the participation of transgender athletes in school sports. The lawmaker said Cline’s post was in “poor taste” and then revealed that the commission has rejected requests from four transgender students.
In a weekly briefing with reporters Friday afternoon, House Speaker Mike Schultz said Birkeland got that information from The Tribune’s reporting.
But The Tribune reported no decision by the commission before Birkeland’s post. He had also not reported a certain number of students whose qualification had been assessed by the committee. Based on agendas, The Tribune reported in October that the commission had met five times at that point and appeared to have discussed at least four student cases.
Parents who spoke during the public portion of the commission’s meetings said they were not given any specific criteria their children would have to meet in order to compete, but they did not disclose the commission’s decisions.
The State Records Act allows members of the legislature to obtain protected records through a subpoena. It is unclear whether Birkeland appears to have knowledge of the commission’s decisions. Regardless of how the legislator obtained the information, she is prohibited from making it public.
Under the Government Records Access and Management Act, a person who “willfully discloses” records classified as protected can be charged with a Class B misdemeanor. This can apply to “a public employee or other person who has lawful access to any private, controlled or protected records”. If charged, Birkeland could face up to six months in prison.
Kennedy’s bill would protect “any record of the commission, including any communication between an athletic association and the commission; and any records held by a school or (local education agency) LEA.”
The statute currently states: “Any committee record, including any communication between an athletic association and the committee, relating to a specific student shall be classified as a protected record.”