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SALT LAKE CITY — A Utah judge on Monday ordered lawyers representing a pair of transgender girls to turn over more documents relating to their physical and mental health after the girls challenged a Utah law that prohibits transgender girls from participating in girls high school sports.
HB11, passed by the Utah Legislature in the 11th-hour of last year's general session, prevents transgender girls from competing on girls high school sports teams. But Third District Judge Keith A. Kelly paused that portion of the law in August 2022 by issuing a preliminary injunction, after several plaintiffs filed a lawsuit alleging HB11 violates the state constitution.
Section 9 of the law remains on hold, while a separate section is now in effect that allows a state commission to determine whether an athlete's participation on a team that aligns with their gender identity is fair.
Utah Gov. Spencer Cox initially vetoed HB11 citing the bill's last-minute changes with "no public input," but lawmakers convened a special session in March 2022 to override the veto. During that session, lawmakers said they expected challenges against the law and set aside $500,000 to cover litigation costs.
As the lawsuit continues to work its way through the courts, Kelly heard from attorneys on both sides again during an evidentiary Monday to determine whether the plaintiffs should be required to turn over medical and mental health records for the two athletes.
The girls — whose identities are being kept anonymous — have alleged that the law is a form of sex-based discrimination and that it has had an adverse impact on their physical and mental health. Three girls originally signed on to the lawsuit; one has since left the complaint.
The families and their lawyers have previously presented evidence showing that treating gender dysphoria includes allowing transgender youth to live with their gender identity in all aspects of their lives.
Although the case has yet to be decided, Kelly previously issued the preliminary injunction because he said the potential harm the ban would inflict on the girls outweighed the damage an injunction would cause to the state and the school districts.
Defense attorneys for the Utah High School Activities Association, Granite School District and Jordan School District have argued that the law protects the fairness of girls sports and that transgender girls would have an advantage. The argument is similar to the reasons lawmakers gave for passing the law in the first place.
HB11 sponsor Rep. Kera Birkeland, R-Morgan, told fellow lawmakers in March 2022 that the bill is "purely" about "preserving women's sports."
Monday's hearing was just to determine what evidence the plaintiffs are obligated to turn over to the defense during discovery ahead of a trial. The defense had asked for mental, physical and behavioral health records, as well as records relating to the onset of puberty, gender dysphoria diagnoses and treatments.
Jason Dupree, an attorney for the defense, said the girls have frequently cited mental health harms as part of their arguments, making the records relevant to the case.
But the plaintiffs' attorney opposed turning over mental health records in order to protect the privacy of the two girls.
Attorney Kevin Heiner also said the plaintiffs were opposed to a request to identify certain athletic coaches of the girls because that could "out" them to coaches who are unaware of their transition.
Ultimately, Kelly ordered the plaintiffs to turn over the majority of the requested information because the "physical, mental and emotional circumstances" of the girls factored into his decision to grant a preliminary injunction, making the records relevant to the outcome of the case.
But, he also granted confidentiality so that the records would only be seen by the attorneys and expert witnesses, not disseminated to the public through court records. He allowed the plaintiffs to submit redactions for some of the mental health records after Heiner argued that discussions with therapists may have covered a broad range of topics that aren't germane to the case at hand.
Kelly didn't require the plaintiffs to identify the coaches of the girls but asked them to disclose whether there are coaches who have mentored the players since they socially transitioned who are unaware that the girls transitioned.
"We want to protect these plaintiffs from any downsides of having that information produced, so that's why I've made the ruling I have today," he said.
The plaintiffs will have seven days to prepare an amended protected order that includes the confidentiality agreement, after which the defense will have seven days to agree with or dispute the order. Documents are due to be turned over 14 days after that.
The discovery period lasts 90 days and will start once both sides agree on a framework to protect the confidential information, but a trial date has not been set.
At the defense's request, Kelly scheduled a separate hearing to consider the constitutional questions surrounding HB11, which will take place Dec. 7.
