Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 219 (2024GS)

Sponsor

Sen. Kennedy, M.

Final action

Governor Signed 3/21/2024

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• amends the Open and Public Meetings Act to:
• expressly exempt a meeting of the School Activity Eligibility Commission (commission) to discuss the eligibility of a specific student from the open meetings requirement; and
• remove a meeting of the commission to discuss the eligibility of a specific student from the list of reasons to close a public meeting;
• prohibits the commission from discussing a specific student's eligibility in a public meeting;
• expands the records that are classified as protected records under the Government Records Access and Management Act in relation to a specific student's eligibility;
• amends provisions to ensure that an athletic association serves to pass communications between students, parents, or schools and the commission;
• clarifies an indemnification provision; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

SCHOOL ACTIVITY ELIGIBILITY COMMISSION
MODIFICATIONS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Michael S. Kennedy
House Sponsor: 
 Kera Birkeland
LONG TITLE
General Description:
This bill amends provisions related to the operation of the School Activity Eligibility
Commission.
Highlighted Provisions:
This bill:
▸ amends the Open and Public Meetings Act to:
• expressly exempt a meeting of the School Activity Eligibility Commission
(commission) to discuss the eligibility of a specific student from the open
meetings requirement; and
• remove a meeting of the commission to discuss the eligibility of a specific
student from the list of reasons to close a public meeting;
▸ prohibits the commission from discussing a specific student's eligibility in a public
meeting;
▸ expands the records that are classified as protected records under the Government
Records Access and Management Act in relation to a specific student's eligibility;
▸ amends provisions to ensure that an athletic association serves to pass
communications between students, parents, or schools and the commission;
▸ clarifies an indemnification provision; and
▸ makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
52-4-201
, as last amended by Laws of Utah 2006, Chapter 263 and renumbered and
amended by Laws of Utah 2006, Chapter 14
52-4-205
, as last amended by Laws of Utah 2023, Chapters 263, 328, 374, and 521
53G-6-1003
, as enacted by Laws of Utah 2022, Chapter 478
53G-6-1004
, as enacted by Laws of Utah 2022, Chapter 478
53G-6-1007
, as enacted by Laws of Utah 2022, Third Special Session, Chapter 1
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
52-4-201
 is amended to read:
52-4-201.
Meetings open to the public -- Exceptions.
(1) A meeting is open to the public unless
:
(a)
 closed under Sections 
52-4-204
, 
52-4-205
, and 
52-4-206
[
.
]
; or
(b) the meeting is solely for the School Activity Eligibility Commission, described in
Section 
53G-6-1003
, if the commission is in effect in accordance with Section 
53G-6-1002
, to
consider, discuss, or determine, in accordance with Section 
53G-6-1004
, an individual student's
eligibility to participate in an interscholastic activity, as that term is defined in Section
53G-6-1001
, including the commission's determinative vote on the student's eligibility.
(2) (a) A meeting that is open to the public includes a workshop or an executive
session of a public body in which a quorum is present, unless closed in accordance with this
chapter.
(b) A workshop or an executive session of a public body in which a quorum is present
that is held on the same day as a regularly scheduled public meeting of the public body may
only be held at the location where the public body is holding the regularly scheduled public
meeting unless:
(i) the workshop or executive session is held at the location where the public body
holds its regularly scheduled public meetings but, for that day, the regularly scheduled public
meeting is being held at different location;
(ii) any of the meetings held on the same day is a site visit or a traveling tour and, in
accordance with this chapter, public notice is given;
(iii) the workshop or executive session is an electronic meeting conducted according to
the requirements of Section 
52-4-207
; or
(iv) it is not practicable to conduct the workshop or executive session at the regular
location of the public body's open meetings due to an emergency or extraordinary
circumstances.
Section 2. Section 
52-4-205
 is amended to read:
52-4-205.
Purposes of closed meetings -- Certain issues prohibited in closed
meetings.
(1) A closed meeting described under Section 
52-4-204
 may only be held for:
(a) except as provided in Subsection (3), discussion of the character, professional
competence, or physical or mental health of an individual;
(b) strategy sessions to discuss collective bargaining;
(c) strategy sessions to discuss pending or reasonably imminent litigation;
(d) strategy sessions to discuss the purchase, exchange, or lease of real property,
including any form of a water right or water shares, or to discuss a proposed development
agreement, project proposal, or financing proposal related to the development of land owned by
the state, if public discussion would:
(i) disclose the appraisal or estimated value of the property under consideration; or
(ii) prevent the public body from completing the transaction on the best possible terms;
(e) strategy sessions to discuss the sale of real property, including any form of a water
right or water shares, if:
(i) public discussion of the transaction would:
(A) disclose the appraisal or estimated value of the property under consideration; or
(B) prevent the public body from completing the transaction on the best possible terms;
(ii) the public body previously gave public notice that the property would be offered for
sale; and
(iii) the terms of the sale are publicly disclosed before the public body approves the
sale;
(f) discussion regarding deployment of security personnel, devices, or systems;
(g) investigative proceedings regarding allegations of criminal misconduct;
(h) as relates to the Independent Legislative Ethics Commission, conducting business
relating to the receipt or review of ethics complaints;
(i) as relates to an ethics committee of the Legislature, a purpose permitted under
Subsection 
52-4-204
(1)(a)(iii)(C);
(j) as relates to the Independent Executive Branch Ethics Commission created in
Section 
63A-14-202
, conducting business relating to an ethics complaint;
(k) as relates to a county legislative body, discussing commercial information as
defined in Section 
59-1-404
;
(l) as relates to the Utah Higher Education Savings Board of Trustees and its appointed
board of directors, discussing fiduciary or commercial information;
(m) deliberations, not including any information gathering activities, of a public body
acting in the capacity of:
(i) an evaluation committee under Title 63G, Chapter 6a, Utah Procurement Code,
during the process of evaluating responses to a solicitation, as defined in Section 
63G-6a-103
;
(ii) a protest officer, defined in Section 
63G-6a-103
, during the process of making a
decision on a protest under Title 63G, Chapter 6a, Part 16, Protests; or
(iii) a procurement appeals panel under Title 63G, Chapter 6a, Utah Procurement
Code, during the process of deciding an appeal under Title 63G, Chapter 6a, Part 17,
Procurement Appeals Board;
(n) the purpose of considering information that is designated as a trade secret, as
defined in Section 
13-24-2
, if the public body's consideration of the information is necessary to
properly conduct a procurement under Title 63G, Chapter 6a, Utah Procurement Code;
(o) the purpose of discussing information provided to the public body during the
procurement process under Title 63G, Chapter 6a, Utah Procurement Code, if, at the time of
the meeting:
(i) the information may not, under Title 63G, Chapter 6a, Utah Procurement Code, be
disclosed to a member of the public or to a participant in the procurement process; and
(ii) the public body needs to review or discuss the information to properly fulfill its
role and responsibilities in the procurement process;
(p) as relates to the governing board of a governmental nonprofit corporation, as that
term is defined in Section 
11-13a-102
, the purpose of discussing information that is designated
as a trade secret, as that term is defined in Section 
13-24-2
, if:
(i) public knowledge of the discussion would reasonably be expected to result in injury
to the owner of the trade secret; and
(ii) discussion of the information is necessary for the governing board to properly
discharge the board's duties and conduct the board's business;
(q) as it relates to the Cannabis Production Establishment Licensing Advisory Board,
to review confidential information regarding violations and security requirements in relation to
the operation of cannabis production establishments;
(r) considering a loan application, if public discussion of the loan application would
disclose:
(i) nonpublic personal financial information; or
(ii) a nonpublic trade secret, as defined in Section 
13-24-2
, or nonpublic business
financial information the disclosure of which would reasonably be expected to result in unfair
competitive injury to the person submitting the information;
(s) a discussion of the board of the Point of the Mountain State Land Authority, created
in Section 
11-59-201
, regarding a potential tenant of point of the mountain state land, as
defined in Section 
11-59-102
; or
(t) a purpose for which a meeting is required to be closed under Subsection (2).
(2) The following meetings shall be closed:
(a) a meeting of the Health and Human Services Interim Committee to review a report
described in Subsection 
26B-1-506
(1)(a), and the responses to the report described in
Subsections 
26B-1-506
(2) and (4);
(b) a meeting of the Child Welfare Legislative Oversight Panel to:
(i) review a report described in Subsection 
26B-1-506
(1)(a), and the responses to the
report described in Subsections 
26B-1-506
(2) and (4); or
(ii) review and discuss an individual case, as described in Subsection 
36-33-103
(2);
(c) a meeting of the Opioid and Overdose Fatality Review Committee, created in
Section 
26B-1-403
, to review and discuss an individual case, as described in Subsection
26B-1-403
(10);
(d) a meeting of a conservation district as defined in Section 
17D-3-102
 for the
purpose of advising the Natural Resource Conservation Service of the United States
Department of Agriculture on a farm improvement project if the discussed information is
protected information under federal law;
(e) a meeting of the Compassionate Use Board established in Section 
26B-1-421
 for
the purpose of reviewing petitions for a medical cannabis card in accordance with Section
26B-1-421
;
(f) a meeting of the Colorado River Authority of Utah if:
(i) the purpose of the meeting is to discuss an interstate claim to the use of the water in
the Colorado River system; and
(ii) failing to close the meeting would:
(A) reveal the contents of a record classified as protected under Subsection
63G-2-305
(82);
(B) reveal a legal strategy relating to the state's claim to the use of the water in the
Colorado River system;
(C) harm the ability of the Colorado River Authority of Utah or river commissioner to
negotiate the best terms and conditions regarding the use of water in the Colorado River
system; or
(D) give an advantage to another state or to the federal government in negotiations
regarding the use of water in the Colorado River system;
(g) a meeting of the General Regulatory Sandbox Program Advisory Committee if:
(i) the purpose of the meeting is to discuss an application for participation in the
regulatory sandbox as defined in Section 
63N-16-102
; and
(ii) failing to close the meeting would reveal the contents of a record classified as
protected under Subsection 
63G-2-305
(83); 
and
(h) a meeting of a project entity if:
(i) the purpose of the meeting is to conduct a strategy session to discuss market
conditions relevant to a business decision regarding the value of a project entity asset if the
terms of the business decision are publicly disclosed before the decision is finalized and a
public discussion would:
(A) disclose the appraisal or estimated value of the project entity asset under
consideration; or
(B) prevent the project entity from completing on the best possible terms a
contemplated transaction concerning the project entity asset;
(ii) the purpose of the meeting is to discuss a record, the disclosure of which could
cause commercial injury to, or confer a competitive advantage upon a potential or actual
competitor of, the project entity;
(iii) the purpose of the meeting is to discuss a business decision, the disclosure of
which could cause commercial injury to, or confer a competitive advantage upon a potential or
actual competitor of, the project entity; or
(iv) failing to close the meeting would prevent the project entity from getting the best
price on the market[
; and
]
.
[
(i) a meeting of the School Activity Eligibility Commission, described in Section
53G-6-1003
, if the commission is in effect in accordance with Section 
53G-6-1002
, to
consider, discuss, or determine, in accordance with Section 
53G-6-1004
, an individual student's
eligibility to participate in an interscholastic activity, as that term is defined in Section
53G-6-1001
, including the commission's determinative vote on the student's eligibility.
]
(3) In a closed meeting, a public body may not:
(a) interview a person applying to fill an elected position;
(b) discuss filling a midterm vacancy or temporary absence governed by Title 20A,
Chapter 1, Part 5, Candidate Vacancy and Vacancy and Temporary Absence in Elected Office;
or
(c) discuss the character, professional competence, or physical or mental health of the
person whose name was submitted for consideration to fill a midterm vacancy or temporary
absence governed by Title 20A, Chapter 1, Part 5, Candidate Vacancy and Vacancy and
Temporary Absence in Elected Office.
Section 3. Section 
53G-6-1003
 is amended to read:
53G-6-1003.
School Activity Eligibility Commission -- Baseline range.
(1) There is created the School Activity Eligibility Commission.
(2) (a) The commission shall consist of the following members:
(i) the following two members whom the president of the Senate appoints:
(A) a mental health professional; and
(B) a statistician with expertise in the analysis of medical data;
(ii) the following two members whom the speaker of the House of Representatives
appoints:
(A) a board-certified physician with expertise in gender identity healthcare; and
(B) a sports physiologist;
(iii) the following two members whom the governor appoints:
(A) a representative of an athletic association; and
(B) an athletic trainer who serves student athletes on the collegiate level; and
(iv) one ad hoc member, serving on a case-by-case basis, who is:
(A) appointed by the athletic association in which the relevant student's school
competes; and
(B) a certified high school coach or official who coaches or officiates in a separate
region or classification from the relevant student's school and in the sport in which the relevant
student seeks eligibility.
(b) An athletic association may prepare and communicate the association's
sport-specific appointments described in Subsection (2)(a)(iv) in preparation for student
requests in a given sport.
(3) (a) A member of the commission described in Subsections (2)(a)(i) through (iii)
shall serve an initial term of one year, subject to reappointment for subsequent terms of two
years.
(b) If a vacancy occurs in the membership of the commission, the individual
responsible for the appointment of the vacant seat as described in Subsection (2) shall fill the
vacancy in the same manner as the original appointment.
(4) (a) (i) Except as provided in Subsection (4)(a)(ii), all members of the commission
constitute a quorum of the commission for a meeting to determine the eligibility of a student.
(ii) All members of the commission described in Subsections (2)(a)(i) through (iii)
constitute a quorum for any meeting other than the meeting described in Subsection (4)(a)(i).
(b) An action of a majority of a quorum constitutes an action of the commission.
(5) A majority of the commission members described in Subsections (2)(a)(i) through
(iii) shall elect a chair from among the members described in Subsections (2)(a)(i) through (iii)
to:
(a) schedule meetings of the commission;
(b) set the agenda of commission meetings; and
(c) facilitate discussion among the commission's members.
(6) A commission member:
(a) may not receive compensation or benefits for the member's service on the
commission; and
(b) may receive per diem and reimbursement for travel expenses that the commission
member incurs as a commission member at the rates that the Division of Finance establishes
under:
(i) Sections 
63A-3-106
 and 
63A-3-107
; and
(ii) rules that the Division of Finance makes under Sections 
63A-3-106
 and 
63A-3-107
.
(7) The commission may enter into an agreement with an athletic association to
provide staff support to the commission.
(8) (a) The commission shall establish a baseline range of physical characteristics for
students participating in a specific gender-designated activity at a specific age to provide the
context for the evaluation of an individual student's eligibility for a given gender-designated
interscholastic activity under Section 
53G-6-1004
.
(b) In creating the baseline ranges described in Subsection (8)(a), the commission shall
include the physical characteristics for the age and gender group in a given gender-designated
interscholastic activity that are relevant to the specific interscholastic activity.
(c) The physical characteristics described in Subsection (8)(b) may include height,
weight, physical characteristics relevant to the application of the standard described in
Subsection 
53G-6-1004
(3), or the extent of physical characteristics affected by puberty, giving
consideration to the practicability of considering the physical characteristic when making an
assessment of an individual student's eligibility under Section 
53G-6-1004
.
(9) [
Any record of the commission, including any communication between an athletic
association and the commission, that relates to
] 
The following records that relate to the
application or analysis of or determination under this part regarding the eligibility of
 a specific
student shall be classified as a protected record under Title 63G, Chapter 2, Government
Records Access and Management Act[
.
]
:
(a) any record of the commission, including any communication between an athletic
association and the commission; and
(b) any record that a school or LEA possesses.
(10) Members of the commission are immune from suit with respect to all acts done
and actions taken in good faith in carrying out the purposes of this part.
(11) The commission has no authority in relation to eligibility questions other than
participation in a gender-designated interscholastic activity under this part.
Section 4. Section 
53G-6-1004
 is amended to read:
53G-6-1004.
Eligibility for interscholastic activities.
(1) (a) Notwithstanding any state board rule or policy of an athletic association, and
except as provided in Subsections (1)(b) and (c):
(i) once a student has obtained the eligibility approval of the commission under
Subsection (2), the student may participate in a gender-designated interscholastic activity that
does not correspond with the sex designation on the student's birth certificate; and
(ii) if a student does not obtain the eligibility approval of the commission under
Subsection (2), the student may not participate in a gender-designated interscholastic activity
that does not correspond with the sex designation on the student's birth certificate.
(b) A student who has undergone or is undergoing a gender transition shall obtain the
eligibility approval of the commission under Subsection (2) to participate in a
gender-designated interscholastic activity that corresponds with the student's gender identity.
(c) Nothing in this subsection prohibits a student from participating in a
gender-designated interscholastic activity in accordance with 34 C.F.R. Sec. 106.41(b).
(2) (a) When a student registers with an athletic association to participate in a
gender-designated interscholastic activity:
(i) a student who has undergone or is undergoing a gender transition shall notify the
athletic association of the student's transition and the need for the commission's eligibility
approval as described in Subsection (1)(b);
(ii) the athletic association shall notify the commission of:
(A) a student for whom an eligibility determination of the commission is required due
to the sex designation on the student's birth certificate not corresponding with the gender
designation of the gender-designated interscholastic activity in which the student seeks to
participate or the student's notice of a gender transition under Subsection (1)(a)(ii); and
(B) the association's ad hoc appointment to the commission described in Subsection
53G-6-1003
(2)(a)(iv); and
(iii) the [
commission
] 
athletic association
 shall notify the student described in
Subsection (2)(a) regarding the process for determining the student's eligibility for the activity
under this section.
(b) The commission shall:
(i) schedule a [
closed
] 
non-public
 meeting to consider a student's eligibility to be held
within 30 days after the day on which the commission receives the notification described in
Subsection (2)(a); and
(ii) notify the relevant athletic association and the student's parents or legal guardians
of the scheduled meeting.
(c) Before the meeting described in Subsection (2)(b):
(i) the student for whom the commission has scheduled the meeting or the student's
parent or guardian is not required but may submit to the commission any information the
student wishes to disclose to the commission that may be relevant to the commission's
eligibility determination, including information regarding:
(A) the gender-designated interscholastic activities for which the student seeks
eligibility;
(B) the gender-designated interscholastic activities in which the student has previously
participated; and
(C) the student's physical characteristics or medical treatments that support the
student's eligibility for the specific gender-designated interscholastic activity;
(ii) the commission may request additional evidence from the student that is:
(A) limited to the extent possible to protect the student's privacy; and
(B) only directly relevant to the commission's eligibility determination; and
(iii) the commission may offer the student a voucher to cover the cost of a diagnostic
assessment if the commission makes a request for medical information under Subsection
(2)(c)(ii) for which the student's insurance does not provide coverage or reimbursement for the
diagnostic that:
(A) would provide the requested information; and
(B) is not free or otherwise readily available to the student.
(d) During the meeting described in Subsection (2)(b):
(i) only the following individuals may be present or participate electronically:
(A) the student for whom the commission is meeting to make an eligibility
determination;
(B) the student's parents or guardians;
(C) the members and necessary staff of the commission; and
(D) any medical professionals or other witnesses the student chooses to include to
support the student's eligibility;
(ii) attendees may participate in person or electronically; and
(iii) the commission shall:
(A) hear the information that supports the student's eligibility;
(B) deliberate the facts relevant to the student's physical characteristics and eligibility
in camera or otherwise after temporarily excusing from the meeting the student, the student's
parents or legal guardians, and any medical professionals or other witnesses whom the student
includes; and
(C) render the commission's eligibility determination in accordance with Subsection
(3) or request additional information and schedule an additional commission meeting to be held
within 30 days of the meeting and in accordance with this Subsection (2)(d) to discuss the
additional information and render the commission's eligibility determination.
(e) The commission may not address the commission's application or analysis of or
determination under this part regarding the eligibility of a specific student in a public meeting
or public communication.
(3) 
(a)
 In making an eligibility determination, the commission, after considering
whether the student's assertion of a gender identity is consistent with the statutory definition of
gender identity as that term is defined in Section 
34A-5-102
, including the implications for the
student's mental health of participating in the gender-designated interscholastic activity, shall:
[
(a)
] 
(i)
 make a determination regarding whether, when measured against the relevant
baseline range described in Subsection 
53G-6-1003
(8), granting the student's eligibility would:
[
(i)
] 
(A)
 present a substantial safety risk to the student or others that is significantly
greater than the inherent risks of the given activity; or
[
(ii)
] 
(B)
 likely give the student a material competitive advantage when compared to
students of the same age competing in the relevant gender-designated activity, including
consideration of the student's previous history of participation in gender-designated
interscholastic activities; and
[
(b)
] 
(ii)
 record the commission's decision and rationale in writing and provide the
written decision to the [
student
] 
athletic commission
 within 30 days after the day on which the
commission renders an eligibility decision under Subsection (3)(a) in a meeting described in
Subsection (2)(b).
(b) Upon receipt of the commission's determination and rationale under Subsection
(3)(a), the athletic commission shall notify the student and the relevant school or LEA of the
commission's determination and rationale.
(c) A school or LEA shall comply with the commission's determination under this
Subsection (3).
(4) (a) Notwithstanding any other provision of law and except as provided in
Subsections (3)(b) and (4)(b), the commission may not disclose:
(i) the name of a student whose eligibility the commission will consider, is considering,
or has considered; or
(ii) the commission's determination regarding a student's eligibility.
(b) The commission shall disclose the commission's determination of a student's
eligibility for a given gender-designated interscholastic activity to the relevant athletic
association, only for the purpose of confirming whether the student is eligible for the
interscholastic activity.
(c) (i) Notwithstanding any other provision of law, an athletic association may not
disclose the information described in Subsections (4)(a)(i) and (ii).
(ii) Nothing in this Subsection (4) prohibits an athletic association from affirming that
a student is eligible if the eligibility of a student is questioned.
Section 5. Section 
53G-6-1007
 is amended to read:
53G-6-1007.
Indemnification -- Enforcement.
(1) The [
state shall defend, indemnify,
] 
attorney general shall defend and the state shall
indemnify
 and hold harmless a person acting under color of state law to enforce this part for
any claims or damages, including court costs and attorney fees, that:
(a) are brought or incurred as a result of this part; and
(b) are not covered by the person's insurance policies or by any coverage agreement
issued by the State Risk Management Fund.
(2) An LEA or school within the public education system with a team that competes in
an interscholastic athletic activity is responsible for the enforcement of this part in relation to
the LEA's or school's teams.
Section 6. 
Effective date.
This bill takes effect on May 1, 2024.