Text of UT SB 219 (2024)

S.B. 219 LEGISLATIVE GENERAL COUNSEL 6 Approved for Filing: M. Curtis 6 6 02-08-24 10:40 AM 6 S.B. 219 1 SCHOOL ACTIVITY ELIGIBILITY COMMISSION 2 MODIFICATIONS 3 2024 GENERAL SESSION 4 STATE OF UTAH 5 Chief Sponsor: Michael S. Kennedy 6 House Sponsor: ____________ 7 8 LONG TITLE 9 General Description: 10 This bill amends provisions related to the operation of the School Activity Eligibility 11 Commission. 12 Highlighted Provisions: 13 This bill: 14 < amends the Open and Public Meetings Act to: 15 C expressly exempt a meeting of the School Activity Eligibility Commission 16 (commission) to discuss the eligibility of a specific student from the open 17 meetings requirement; and 18 C remove a meeting of the commission to discuss the eligibility of a specific 19 student from the list of reasons to close a public meeting; 20 < prohibits the commission from discussing a specific student's eligibility in a public 21 meeting; 22 < expands the records that are classified as protected records under the Government 23 Records Access and Management Act in relation to a specific student's eligibility; 24 < amends provisions to ensure that an athletic association serves to pass 25 communications between students, parents, or schools and the commission; 26 < clarifies an indemnification provision; and 27 < makes technical and conforming changes. *SB0219* S.B. 219 02-08-24 10:40 AM - 2 - 28 Money Appropriated in this Bill: 29 None 30 Other Special Clauses: 31 None 32 Utah Code Sections Affected: 33 AMENDS: 34 52-4-201, as last amended by Laws of Utah 2006, Chapter 263 and renumbered and 35 amended by Laws of Utah 2006, Chapter 14 36 52-4-205, as last amended by Laws of Utah 2023, Chapters 263, 328, 374, and 521 37 53G-6-1003, as enacted by Laws of Utah 2022, Chapter 478 38 53G-6-1004, as enacted by Laws of Utah 2022, Chapter 478 39 53G-6-1007, as enacted by Laws of Utah 2022, Third Special Session, Chapter 1 40 41 Be it enacted by the Legislature of the state of Utah: 42 Section 1. Section 52-4-201 is amended to read: 43 52-4-201. Meetings open to the public -- Exceptions. 44 (1) A meeting is open to the public unless: 45 (a) closed under Sections 52-4-204, 52-4-205, and 52-4-206[.]; or 46 (b) the meeting is solely for the School Activity Eligibility Commission, described in 47 Section 53G-6-1003, if the commission is in effect in accordance with Section 53G-6-1002, to 48 consider, discuss, or determine, in accordance with Section 53G-6-1004, an individual student's 49 eligibility to participate in an interscholastic activity, as that term is defined in Section 50 53G-6-1001, including the commission's determinative vote on the student's eligibility. 51 (2) (a) A meeting that is open to the public includes a workshop or an executive 52 session of a public body in which a quorum is present, unless closed in accordance with this 53 chapter. 54 (b) A workshop or an executive session of a public body in which a quorum is present 55 that is held on the same day as a regularly scheduled public meeting of the public body may 56 only be held at the location where the public body is holding the regularly scheduled public 57 meeting unless: 58 (i) the workshop or executive session is held at the location where the public body 02-08-24 10:40 AM S.B. 219 - 3 - 59 holds its regularly scheduled public meetings but, for that day, the regularly scheduled public 60 meeting is being held at different location; 61 (ii) any of the meetings held on the same day is a site visit or a traveling tour and, in 62 accordance with this chapter, public notice is given; 63 (iii) the workshop or executive session is an electronic meeting conducted according to 64 the requirements of Section 52-4-207; or 65 (iv) it is not practicable to conduct the workshop or executive session at the regular 66 location of the public body's open meetings due to an emergency or extraordinary 67 circumstances. 68 Section 2. Section 52-4-205 is amended to read: 69 52-4-205. Purposes of closed meetings -- Certain issues prohibited in closed 70 meetings. 71 (1) A closed meeting described under Section 52-4-204 may only be held for: 72 (a) except as provided in Subsection (3), discussion of the character, professional 73 competence, or physical or mental health of an individual; 74 (b) strategy sessions to discuss collective bargaining; 75 (c) strategy sessions to discuss pending or reasonably imminent litigation; 76 (d) strategy sessions to discuss the purchase, exchange, or lease of real property, 77 including any form of a water right or water shares, or to discuss a proposed development 78 agreement, project proposal, or financing proposal related to the development of land owned by 79 the state, if public discussion would: 80 (i) disclose the appraisal or estimated value of the property under consideration; or 81 (ii) prevent the public body from completing the transaction on the best possible terms; 82 (e) strategy sessions to discuss the sale of real property, including any form of a water 83 right or water shares, if: 84 (i) public discussion of the transaction would: 85 (A) disclose the appraisal or estimated value of the property under consideration; or 86 (B) prevent the public body from completing the transaction on the best possible terms; 87 (ii) the public body previously gave public notice that the property would be offered for 88 sale; and 89 (iii) the terms of the sale are publicly disclosed before the public body approves the S.B. 219 02-08-24 10:40 AM - 4 - 90 sale; 91 (f) discussion regarding deployment of security personnel, devices, or systems; 92 (g) investigative proceedings regarding allegations of criminal misconduct; 93 (h) as relates to the Independent Legislative Ethics Commission, conducting business 94 relating to the receipt or review of ethics complaints; 95 (i) as relates to an ethics committee of the Legislature, a purpose permitted under 96 Subsection 52-4-204(1)(a)(iii)(C); 97 (j) as relates to the Independent Executive Branch Ethics Commission created in 98 Section 63A-14-202, conducting business relating to an ethics complaint; 99 (k) as relates to a county legislative body, discussing commercial information as 100 defined in Section 59-1-404; 101 (l) as relates to the Utah Higher Education Savings Board of Trustees and its appointed 102 board of directors, discussing fiduciary or commercial information; 103 (m) deliberations, not including any information gathering activities, of a public body 104 acting in the capacity of: 105 (i) an evaluation committee under Title 63G, Chapter 6a, Utah Procurement Code, 106 during the process of evaluating responses to a solicitation, as defined in Section 63G-6a-103; 107 (ii) a protest officer, defined in Section 63G-6a-103, during the process of making a 108 decision on a protest under Title 63G, Chapter 6a, Part 16, Protests; or 109 (iii) a procurement appeals panel under Title 63G, Chapter 6a, Utah Procurement 110 Code, during the process of deciding an appeal under Title 63G, Chapter 6a, Part 17, 111 Procurement Appeals Board; 112 (n) the purpose of considering information that is designated as a trade secret, as 113 defined in Section 13-24-2, if the public body's consideration of the information is necessary to 114 properly conduct a procurement under Title 63G, Chapter 6a, Utah Procurement Code; 115 (o) the purpose of discussing information provided to the public body during the 116 procurement process under Title 63G, Chapter 6a, Utah Procurement Code, if, at the time of 117 the meeting: 118 (i) the information may not, under Title 63G, Chapter 6a, Utah Procurement Code, be 119 disclosed to a member of the public or to a participant in the procurement process; and 120 (ii) the public body needs to review or discuss the information to properly fulfill its 02-08-24 10:40 AM S.B. 219 - 5 - 121 role and responsibilities in the procurement process; 122 (p) as relates to the governing board of a governmental nonprofit corporation, as that 123 term is defined in Section 11-13a-102, the purpose of discussing information that is designated 124 as a trade secret, as that term is defined in Section 13-24-2, if: 125 (i) public knowledge of the discussion would reasonably be expected to result in injury 126 to the owner of the trade secret; and 127 (ii) discussion of the information is necessary for the governing board to properly 128 discharge the board's duties and conduct the board's business; 129 (q) as it relates to the Cannabis Production Establishment Licensing Advisory Board, 130 to review confidential information regarding violations and security requirements in relation to 131 the operation of cannabis production establishments; 132 (r) considering a loan application, if public discussion of the loan application would 133 disclose: 134 (i) nonpublic personal financial information; or 135 (ii) a nonpublic trade secret, as defined in Section 13-24-2, or nonpublic business 136 financial information the disclosure of which would reasonably be expected to result in unfair 137 competitive injury to the person submitting the information; 138 (s) a discussion of the board of the Point of the Mountain State Land Authority, created 139 in Section 11-59-201, regarding a potential tenant of point of the mountain state land, as 140 defined in Section 11-59-102; or 141 (t) a purpose for which a meeting is required to be closed under Subsection (2). 142 (2) The following meetings shall be closed: 143 (a) a meeting of the Health and Human Services Interim Committee to review a report 144 described in Subsection 26B-1-506(1)(a), and the responses to the report described in 145 Subsections 26B-1-506(2) and (4); 146 (b) a meeting of the Child Welfare Legislative Oversight Panel to: 147 (i) review a report described in Subsection 26B-1-506(1)(a), and the responses to the 148 report described in Subsections 26B-1-506(2) and (4); or 149 (ii) review and discuss an individual case, as described in Subsection 36-33-103(2); 150 (c) a meeting of the Opioid and Overdose Fatality Review Committee, created in 151 Section 26B-1-403, to review and discuss an individual case, as described in Subsection S.B. 219 02-08-24 10:40 AM - 6 - 152 26B-1-403(10); 153 (d) a meeting of a conservation district as defined in Section 17D-3-102 for the 154 purpose of advising the Natural Resource Conservation Service of the United States 155 Department of Agriculture on a farm improvement project if the discussed information is 156 protected information under federal law; 157 (e) a meeting of the Compassionate Use Board established in Section 26B-1-421 for 158 the purpose of reviewing petitions for a medical cannabis card in accordance with Section 159 26B-1-421; 160 (f) a meeting of the Colorado River Authority of Utah if: 161 (i) the purpose of the meeting is to discuss an interstate claim to the use of the water in 162 the Colorado River system; and 163 (ii) failing to close the meeting would: 164 (A) reveal the contents of a record classified as protected under Subsection 165 63G-2-305(82); 166 (B) reveal a legal strategy relating to the state's claim to the use of the water in the 167 Colorado River system; 168 (C) harm the ability of the Colorado River Authority of Utah or river commissioner to 169 negotiate the best terms and conditions regarding the use of water in the Colorado River 170 system; or 171 (D) give an advantage to another state or to the federal government in negotiations 172 regarding the use of water in the Colorado River system; 173 (g) a meeting of the General Regulatory Sandbox Program Advisory Committee if: 174 (i) the purpose of the meeting is to discuss an application for participation in the 175 regulatory sandbox as defined in Section 63N-16-102; and 176 (ii) failing to close the meeting would reveal the contents of a record classified as 177 protected under Subsection 63G-2-305(83); and 178 (h) a meeting of a project entity if: 179 (i) the purpose of the meeting is to conduct a strategy session to discuss market 180 conditions relevant to a business decision regarding the value of a project entity asset if the 181 terms of the business decision are publicly disclosed before the decision is finalized and a 182 public discussion would: 02-08-24 10:40 AM S.B. 219 - 7 - 183 (A) disclose the appraisal or estimated value of the project entity asset under 184 consideration; or 185 (B) prevent the project entity from completing on the best possible terms a 186 contemplated transaction concerning the project entity asset; 187 (ii) the purpose of the meeting is to discuss a record, the disclosure of which could 188 cause commercial injury to, or confer a competitive advantage upon a potential or actual 189 competitor of, the project entity; 190 (iii) the purpose of the meeting is to discuss a business decision, the disclosure of 191 which could cause commercial injury to, or confer a competitive advantage upon a potential or 192 actual competitor of, the project entity; or 193 (iv) failing to close the meeting would prevent the project entity from getting the best 194 price on the market[; and]. 195 [(i) a meeting of the School Activity Eligibility Commission, described in Section 196 53G-6-1003, if the commission is in effect in accordance with Section 53G-6-1002, to 197 consider, discuss, or determine, in accordance with Section 53G-6-1004, an individual student's 198 eligibility to participate in an interscholastic activity, as that term is defined in Section 199 53G-6-1001, including the commission's determinative vote on the student's eligibility.] 200 (3) In a closed meeting, a public body may not: 201 (a) interview a person applying to fill an elected position; 202 (b) discuss filling a midterm vacancy or temporary absence governed by Title 20A, 203 Chapter 1, Part 5, Candidate Vacancy and Vacancy and Temporary Absence in Elected Office; 204 or 205 (c) discuss the character, professional competence, or physical or mental health of the 206 person whose name was submitted for consideration to fill a midterm vacancy or temporary 207 absence governed by Title 20A, Chapter 1, Part 5, Candidate Vacancy and Vacancy and 208 Temporary Absence in Elected Office. 209 Section 3. Section 53G-6-1003 is amended to read: 210 53G-6-1003. School Activity Eligibility Commission -- Baseline range. 211 (1) There is created the School Activity Eligibility Commission. 212 (2) (a) The commission shall consist of the following members: 213 (i) the following two members whom the president of the Senate appoints: S.B. 219 02-08-24 10:40 AM - 8 - 214 (A) a mental health professional; and 215 (B) a statistician with expertise in the analysis of medical data; 216 (ii) the following two members whom the speaker of the House of Representatives 217 appoints: 218 (A) a board-certified physician with expertise in gender identity healthcare; and 219 (B) a sports physiologist; 220 (iii) the following two members whom the governor appoints: 221 (A) a representative of an athletic association; and 222 (B) an athletic trainer who serves student athletes on the collegiate level; and 223 (iv) one ad hoc member, serving on a case-by-case basis, who is: 224 (A) appointed by the athletic association in which the relevant student's school 225 competes; and 226 (B) a certified high school coach or official who coaches or officiates in a separate 227 region or classification from the relevant student's school and in the sport in which the relevant 228 student seeks eligibility. 229 (b) An athletic association may prepare and communicate the association's 230 sport-specific appointments described in Subsection (2)(a)(iv) in preparation for student 231 requests in a given sport. 232 (3) (a) A member of the commission described in Subsections (2)(a)(i) through (iii) 233 shall serve an initial term of one year, subject to reappointment for subsequent terms of two 234 years. 235 (b) If a vacancy occurs in the membership of the commission, the individual 236 responsible for the appointment of the vacant seat as described in Subsection (2) shall fill the 237 vacancy in the same manner as the original appointment. 238 (4) (a) (i) Except as provided in Subsection (4)(a)(ii), all members of the commission 239 constitute a quorum of the commission for a meeting to determine the eligibility of a student. 240 (ii) All members of the commission described in Subsections (2)(a)(i) through (iii) 241 constitute a quorum for any meeting other than the meeting described in Subsection (4)(a)(i). 242 (b) An action of a majority of a quorum constitutes an action of the commission. 243 (5) A majority of the commission members described in Subsections (2)(a)(i) through 244 (iii) shall elect a chair from among the members described in Subsections (2)(a)(i) through (iii) 02-08-24 10:40 AM S.B. 219 - 9 - 245 to: 246 (a) schedule meetings of the commission; 247 (b) set the agenda of commission meetings; and 248 (c) facilitate discussion among the commission's members. 249 (6) A commission member: 250 (a) may not receive compensation or benefits for the member's service on the 251 commission; and 252 (b) may receive per diem and reimbursement for travel expenses that the commission 253 member incurs as a commission member at the rates that the Division of Finance establishes 254 under: 255 (i) Sections 63A-3-106 and 63A-3-107; and 256 (ii) rules that the Division of Finance makes under Sections 63A-3-106 and 63A-3-107. 257 (7) The commission may enter into an agreement with an athletic association to 258 provide staff support to the commission. 259 (8) (a) The commission shall establish a baseline range of physical characteristics for 260 students participating in a specific gender-designated activity at a specific age to provide the 261 context for the evaluation of an individual student's eligibility for a given gender-designated 262 interscholastic activity under Section 53G-6-1004. 263 (b) In creating the baseline ranges described in Subsection (8)(a), the commission shall 264 include the physical characteristics for the age and gender group in a given gender-designated 265 interscholastic activity that are relevant to the specific interscholastic activity. 266 (c) The physical characteristics described in Subsection (8)(b) may include height, 267 weight, physical characteristics relevant to the application of the standard described in 268 Subsection 53G-6-1004(3), or the extent of physical characteristics affected by puberty, giving 269 consideration to the practicability of considering the physical characteristic when making an 270 assessment of an individual student's eligibility under Section 53G-6-1004. 271 (9) [Any record of the commission, including any communication between an athletic 272 association and the commission, that relates to] The following records that relate to the 273 application or analysis of or determination under this part regarding the eligibility of a specific 274 student shall be classified as a protected record under Title 63G, Chapter 2, Government 275 Records Access and Management Act[.]: S.B. 219 02-08-24 10:40 AM - 10 - 276 (a) any record of the commission, including any communication between an athletic 277 association and the commission; and 278 (b) any record that a school or LEA possesses. 279 (10) Members of the commission are immune from suit with respect to all acts done 280 and actions taken in good faith in carrying out the purposes of this part. 281 (11) The commission has no authority in relation to eligibility questions other than 282 participation in a gender-designated interscholastic activity under this part. 283 Section 4. Section 53G-6-1004 is amended to read: 284 53G-6-1004. Eligibility for interscholastic activities. 285 (1) (a) Notwithstanding any state board rule or policy of an athletic association, and 286 except as provided in Subsections (1)(b) and (c): 287 (i) once a student has obtained the eligibility approval of the commission under 288 Subsection (2), the student may participate in a gender-designated interscholastic activity that 289 does not correspond with the sex designation on the student's birth certificate; and 290 (ii) if a student does not obtain the eligibility approval of the commission under 291 Subsection (2), the student may not participate in a gender-designated interscholastic activity 292 that does not correspond with the sex designation on the student's birth certificate. 293 (b) A student who has undergone or is undergoing a gender transition shall obtain the 294 eligibility approval of the commission under Subsection (2) to participate in a 295 gender-designated interscholastic activity that corresponds with the student's gender identity. 296 (c) Nothing in this subsection prohibits a student from participating in a 297 gender-designated interscholastic activity in accordance with 34 C.F.R. Sec. 106.41(b). 298 (2) (a) When a student registers with an athletic association to participate in a 299 gender-designated interscholastic activity: 300 (i) a student who has undergone or is undergoing a gender transition shall notify the 301 athletic association of the student's transition and the need for the commission's eligibility 302 approval as described in Subsection (1)(b); 303 (ii) the athletic association shall notify the commission of: 304 (A) a student for whom an eligibility determination of the commission is required due 305 to the sex designation on the student's birth certificate not corresponding with the gender 306 designation of the gender-designated interscholastic activity in which the student seeks to 02-08-24 10:40 AM S.B. 219 - 11 - 307 participate or the student's notice of a gender transition under Subsection (1)(a)(ii); and 308 (B) the association's ad hoc appointment to the commission described in Subsection 309 53G-6-1003(2)(a)(iv); and 310 (iii) the [commission] athletic association shall notify the student described in 311 Subsection (2)(a) regarding the process for determining the student's eligibility for the activity 312 under this section. 313 (b) The commission shall: 314 (i) schedule a [closed] non-public meeting to consider a student's eligibility to be held 315 within 30 days after the day on which the commission receives the notification described in 316 Subsection (2)(a); and 317 (ii) notify the relevant athletic association and the student's parents or legal guardians 318 of the scheduled meeting. 319 (c) Before the meeting described in Subsection (2)(b): 320 (i) the student for whom the commission has scheduled the meeting or the student's 321 parent or guardian is not required but may submit to the commission any information the 322 student wishes to disclose to the commission that may be relevant to the commission's 323 eligibility determination, including information regarding: 324 (A) the gender-designated interscholastic activities for which the student seeks 325 eligibility; 326 (B) the gender-designated interscholastic activities in which the student has previously 327 participated; and 328 (C) the student's physical characteristics or medical treatments that support the 329 student's eligibility for the specific gender-designated interscholastic activity; 330 (ii) the commission may request additional evidence from the student that is: 331 (A) limited to the extent possible to protect the student's privacy; and 332 (B) only directly relevant to the commission's eligibility determination; and 333 (iii) the commission may offer the student a voucher to cover the cost of a diagnostic 334 assessment if the commission makes a request for medical information under Subsection 335 (2)(c)(ii) for which the student's insurance does not provide coverage or reimbursement for the 336 diagnostic that: 337 (A) would provide the requested information; and S.B. 219 02-08-24 10:40 AM - 12 - 338 (B) is not free or otherwise readily available to the student. 339 (d) During the meeting described in Subsection (2)(b): 340 (i) only the following individuals may be present or participate electronically: 341 (A) the student for whom the commission is meeting to make an eligibility 342 determination; 343 (B) the student's parents or guardians; 344 (C) the members and necessary staff of the commission; and 345 (D) any medical professionals or other witnesses the student chooses to include to 346 support the student's eligibility; 347 (ii) attendees may participate in person or electronically; and 348 (iii) the commission shall: 349 (A) hear the information that supports the student's eligibility; 350 (B) deliberate the facts relevant to the student's physical characteristics and eligibility 351 in camera or otherwise after temporarily excusing from the meeting the student, the student's 352 parents or legal guardians, and any medical professionals or other witnesses whom the student 353 includes; and 354 (C) render the commission's eligibility determination in accordance with Subsection 355 (3) or request additional information and schedule an additional commission meeting to be held 356 within 30 days of the meeting and in accordance with this Subsection (2)(d) to discuss the 357 additional information and render the commission's eligibility determination. 358 (e) The commission may not address the commission's application or analysis of or 359 determination under this part regarding the eligibility of a specific student in a public meeting 360 or public communication. 361 (3) (a) In making an eligibility determination, the commission, after considering 362 whether the student's assertion of a gender identity is consistent with the statutory definition of 363 gender identity as that term is defined in Section 34A-5-102, including the implications for the 364 student's mental health of participating in the gender-designated interscholastic activity, shall: 365 [(a)] (i) make a determination regarding whether, when measured against the relevant 366 baseline range described in Subsection 53G-6-1003(8), granting the student's eligibility would: 367 [(i)] (A) present a substantial safety risk to the student or others that is significantly 368 greater than the inherent risks of the given activity; or 02-08-24 10:40 AM S.B. 219 - 13 - 369 [(ii)] (B) likely give the student a material competitive advantage when compared to 370 students of the same age competing in the relevant gender-designated activity, including 371 consideration of the student's previous history of participation in gender-designated 372 interscholastic activities; and 373 [(b)] (ii) record the commission's decision and rationale in writing and provide the 374 written decision to the [student] athletic commission within 30 days after the day on which the 375 commission renders an eligibility decision under Subsection (3)(a) in a meeting described in 376 Subsection (2)(b). 377 (b) Upon receipt of the commission's determination and rationale under Subsection 378 (3)(a), the athletic commission shall notify the student and the relevant school or LEA of the 379 commission's determination and rationale. 380 (c) A school or LEA shall comply with the commission's determination under this 381 Subsection (3). 382 (4) (a) Notwithstanding any other provision of law and except as provided in 383 Subsections (3)(b) and (4)(b), the commission may not disclose: 384 (i) the name of a student whose eligibility the commission will consider, is considering, 385 or has considered; or 386 (ii) the commission's determination regarding a student's eligibility. 387 (b) The commission shall disclose the commission's determination of a student's 388 eligibility for a given gender-designated interscholastic activity to the relevant athletic 389 association, only for the purpose of confirming whether the student is eligible for the 390 interscholastic activity. 391 (c) (i) Notwithstanding any other provision of law, an athletic association may not 392 disclose the information described in Subsections (4)(a)(i) and (ii). 393 (ii) Nothing in this Subsection (4) prohibits an athletic association from affirming that 394 a student is eligible if the eligibility of a student is questioned. 395 Section 5. Section 53G-6-1007 is amended to read: 396 53G-6-1007. Indemnification -- Enforcement. 397 (1) The [state shall defend, indemnify,] attorney general shall defend and the state shall 398 indemnify and hold harmless a person acting under color of state law to enforce this part for 399 any claims or damages, including court costs and attorney fees, that: S.B. 219 02-08-24 10:40 AM - 14 - 400 (a) are brought or incurred as a result of this part; and 401 (b) are not covered by the person's insurance policies or by any coverage agreement 402 issued by the State Risk Management Fund. 403 (2) An LEA or school within the public education system with a team that competes in 404 an interscholastic athletic activity is responsible for the enforcement of this part in relation to 405 the LEA's or school's teams. 406 Section 6. Effective date. 407 This bill takes effect on May 1, 2024.

Enrolled Copy S.B. 219 1 SCHOOL ACTIVITY ELIGIBILITY COMMISSION MODIFICATIONS 2024 GENERAL SESSION STATE OF UTAH Chief Sponsor: Michael S. Kennedy House Sponsor: Kera Birkeland 2 3 LONG TITLE 4 General Description: 5 This bill amends provisions related to the operation of the School Activity Eligibility 6 Commission. 7 Highlighted Provisions: 8 This bill: 9 ▸ amends the Open and Public Meetings Act to: 10 ● expressly exempt a meeting of the School Activity Eligibility Commission 11 (commission) to discuss the eligibility of a specific student from the open meetings 12 requirement; and 13 ● remove a meeting of the commission to discuss the eligibility of a specific student 14 from the list of reasons to close a public meeting; 15 ▸ prohibits the commission from discussing a specific student's eligibility in a public 16 meeting; 17 ▸ expands the records that are classified as protected records under the Government 18 Records Access and Management Act in relation to a specific student's eligibility; 19 ▸ amends provisions to ensure that an athletic association serves to pass communications 20 between students, parents, or schools and the commission; 21 ▸ clarifies an indemnification provision; and 22 ▸ makes technical and conforming changes. 23 Money Appropriated in this Bill: 24 None 25 Other Special Clauses: 26 None 27 Utah Code Sections Affected: S.B. 219 Enrolled Copy 28 AMENDS: 29 52-4-201, as last amended by Laws of Utah 2006, Chapter 263 and renumbered and 30 amended by Laws of Utah 2006, Chapter 14 31 52-4-205, as last amended by Laws of Utah 2023, Chapters 263, 328, 374, and 521 32 53G-6-1003, as enacted by Laws of Utah 2022, Chapter 478 33 53G-6-1004, as enacted by Laws of Utah 2022, Chapter 478 34 53G-6-1007, as enacted by Laws of Utah 2022, Third Special Session, Chapter 1 35 36 Be it enacted by the Legislature of the state of Utah: 37 Section 1. Section 52-4-201 is amended to read: 38 52-4-201 . Meetings open to the public -- Exceptions. 39 (1) A meeting is open to the public unless[ ] : 40 (a) closed under Sections 52-4-204, 52-4-205, and 52-4-206[.] ; or 41 (b) the meeting is solely for the School Activity Eligibility Commission, described in 42 Section 53G-6-1003, if the commission is in effect in accordance with Section 43 53G-6-1002, to consider, discuss, or determine, in accordance with Section 44 53G-6-1004, an individual student's eligibility to participate in an interscholastic 45 activity, as that term is defined in Section 53G-6-1001, including the commission's 46 determinative vote on the student's eligibility. 47 (2) (a) A meeting that is open to the public includes a workshop or an executive session 48 of a public body in which a quorum is present, unless closed in accordance with this 49 chapter. 50 (b) A workshop or an executive session of a public body in which a quorum is present 51 that is held on the same day as a regularly scheduled public meeting of the public 52 body may only be held at the location where the public body is holding the regularly 53 scheduled public meeting unless: 54 (i) the workshop or executive session is held at the location where the public body 55 holds its regularly scheduled public meetings but, for that day, the regularly 56 scheduled public meeting is being held at different location; 57 (ii) any of the meetings held on the same day is a site visit or a traveling tour and, in 58 accordance with this chapter, public notice is given; 59 (iii) the workshop or executive session is an electronic meeting conducted according 60 to the requirements of Section 52-4-207; or 61 (iv) it is not practicable to conduct the workshop or executive session at the regular - 2 - Enrolled Copy S.B. 219 62 location of the public body's open meetings due to an emergency or extraordinary 63 circumstances. 64 Section 2. Section 52-4-205 is amended to read: 65 52-4-205 . Purposes of closed meetings -- Certain issues prohibited in closed 66 meetings. 67 (1) A closed meeting described under Section 52-4-204 may only be held for: 68 (a) except as provided in Subsection (3), discussion of the character, professional 69 competence, or physical or mental health of an individual; 70 (b) strategy sessions to discuss collective bargaining; 71 (c) strategy sessions to discuss pending or reasonably imminent litigation; 72 (d) strategy sessions to discuss the purchase, exchange, or lease of real property, 73 including any form of a water right or water shares, or to discuss a proposed 74 development agreement, project proposal, or financing proposal related to the 75 development of land owned by the state, if public discussion would: 76 (i) disclose the appraisal or estimated value of the property under consideration; or 77 (ii) prevent the public body from completing the transaction on the best possible 78 terms; 79 (e) strategy sessions to discuss the sale of real property, including any form of a water 80 right or water shares, if: 81 (i) public discussion of the transaction would: 82 (A) disclose the appraisal or estimated value of the property under consideration; 83 or 84 (B) prevent the public body from completing the transaction on the best possible 85 terms; 86 (ii) the public body previously gave public notice that the property would be offered 87 for sale; and 88 (iii) the terms of the sale are publicly disclosed before the public body approves the 89 sale; 90 (f) discussion regarding deployment of security personnel, devices, or systems; 91 (g) investigative proceedings regarding allegations of criminal misconduct; 92 (h) as relates to the Independent Legislative Ethics Commission, conducting business 93 relating to the receipt or review of ethics complaints; 94 (i) as relates to an ethics committee of the Legislature, a purpose permitted under 95 Subsection 52-4-204(1)(a)(iii)(C); - 3 - S.B. 219 Enrolled Copy 96 (j) as relates to the Independent Executive Branch Ethics Commission created in Section 97 63A-14-202, conducting business relating to an ethics complaint; 98 (k) as relates to a county legislative body, discussing commercial information as defined 99 in Section 59-1-404; 100 (l) as relates to the Utah Higher Education Savings Board of Trustees and its appointed 101 board of directors, discussing fiduciary or commercial information; 102 (m) deliberations, not including any information gathering activities, of a public body 103 acting in the capacity of: 104 (i) an evaluation committee under Title 63G, Chapter 6a, Utah Procurement Code, 105 during the process of evaluating responses to a solicitation, as defined in Section 106 63G-6a-103; 107 (ii) a protest officer, defined in Section 63G-6a-103, during the process of making a 108 decision on a protest under Title 63G, Chapter 6a, Part 16, Protests; or 109 (iii) a procurement appeals panel under Title 63G, Chapter 6a, Utah Procurement 110 Code, during the process of deciding an appeal under Title 63G, Chapter 6a, Part 111 17, Procurement Appeals Board; 112 (n) the purpose of considering information that is designated as a trade secret, as defined 113 in Section 13-24-2, if the public body's consideration of the information is necessary 114 to properly conduct a procurement under Title 63G, Chapter 6a, Utah Procurement 115 Code; 116 (o) the purpose of discussing information provided to the public body during the 117 procurement process under Title 63G, Chapter 6a, Utah Procurement Code, if, at the 118 time of the meeting: 119 (i) the information may not, under Title 63G, Chapter 6a, Utah Procurement Code, be 120 disclosed to a member of the public or to a participant in the procurement process; 121 and 122 (ii) the public body needs to review or discuss the information to properly fulfill its 123 role and responsibilities in the procurement process; 124 (p) as relates to the governing board of a governmental nonprofit corporation, as that 125 term is defined in Section 11-13a-102, the purpose of discussing information that is 126 designated as a trade secret, as that term is defined in Section 13-24-2, if: 127 (i) public knowledge of the discussion would reasonably be expected to result in 128 injury to the owner of the trade secret; and 129 (ii) discussion of the information is necessary for the governing board to properly - 4 - Enrolled Copy S.B. 219 130 discharge the board's duties and conduct the board's business; 131 (q) as it relates to the Cannabis Production Establishment Licensing Advisory Board, to 132 review confidential information regarding violations and security requirements in 133 relation to the operation of cannabis production establishments; 134 (r) considering a loan application, if public discussion of the loan application would 135 disclose: 136 (i) nonpublic personal financial information; or 137 (ii) a nonpublic trade secret, as defined in Section 13-24-2, or nonpublic business 138 financial information the disclosure of which would reasonably be expected to 139 result in unfair competitive injury to the person submitting the information; 140 (s) a discussion of the board of the Point of the Mountain State Land Authority, created 141 in Section 11-59-201, regarding a potential tenant of point of the mountain state land, 142 as defined in Section 11-59-102; or 143 (t) a purpose for which a meeting is required to be closed under Subsection (2). 144 (2) The following meetings shall be closed: 145 (a) a meeting of the Health and Human Services Interim Committee to review a report 146 described in Subsection 26B-1-506(1)(a), and the responses to the report described in 147 Subsections 26B-1-506(2) and (4); 148 (b) a meeting of the Child Welfare Legislative Oversight Panel to: 149 (i) review a report described in Subsection 26B-1-506(1)(a), and the responses to the 150 report described in Subsections 26B-1-506(2) and (4); or 151 (ii) review and discuss an individual case, as described in Subsection 36-33-103(2); 152 (c) a meeting of the Opioid and Overdose Fatality Review Committee, created in Section 153 26B-1-403, to review and discuss an individual case, as described in Subsection 154 26B-1-403(10); 155 (d) a meeting of a conservation district as defined in Section 17D-3-102 for the purpose 156 of advising the Natural Resource Conservation Service of the United States 157 Department of Agriculture on a farm improvement project if the discussed 158 information is protected information under federal law; 159 (e) a meeting of the Compassionate Use Board established in Section 26B-1-421 for the 160 purpose of reviewing petitions for a medical cannabis card in accordance with 161 Section 26B-1-421; 162 (f) a meeting of the Colorado River Authority of Utah if: 163 (i) the purpose of the meeting is to discuss an interstate claim to the use of the water - 5 - S.B. 219 Enrolled Copy 164 in the Colorado River system; and 165 (ii) failing to close the meeting would: 166 (A) reveal the contents of a record classified as protected under Subsection 167 63G-2-305(82); 168 (B) reveal a legal strategy relating to the state's claim to the use of the water in the 169 Colorado River system; 170 (C) harm the ability of the Colorado River Authority of Utah or river 171 commissioner to negotiate the best terms and conditions regarding the use of 172 water in the Colorado River system; or 173 (D) give an advantage to another state or to the federal government in negotiations 174 regarding the use of water in the Colorado River system; 175 (g) a meeting of the General Regulatory Sandbox Program Advisory Committee if: 176 (i) the purpose of the meeting is to discuss an application for participation in the 177 regulatory sandbox as defined in Section 63N-16-102; and 178 (ii) failing to close the meeting would reveal the contents of a record classified as 179 protected under Subsection 63G-2-305(83); and 180 (h) a meeting of a project entity if: 181 (i) the purpose of the meeting is to conduct a strategy session to discuss market 182 conditions relevant to a business decision regarding the value of a project entity 183 asset if the terms of the business decision are publicly disclosed before the 184 decision is finalized and a public discussion would: 185 (A) disclose the appraisal or estimated value of the project entity asset under 186 consideration; or 187 (B) prevent the project entity from completing on the best possible terms a 188 contemplated transaction concerning the project entity asset; 189 (ii) the purpose of the meeting is to discuss a record, the disclosure of which could 190 cause commercial injury to, or confer a competitive advantage upon a potential or 191 actual competitor of, the project entity; 192 (iii) the purpose of the meeting is to discuss a business decision, the disclosure of 193 which could cause commercial injury to, or confer a competitive advantage upon a 194 potential or actual competitor of, the project entity; or 195 (iv) failing to close the meeting would prevent the project entity from getting the best 196 price on the market[; and] . 197 [(i) a meeting of the School Activity Eligibility Commission, described in Section - 6 - Enrolled Copy S.B. 219 198 53G-6-1003, if the commission is in effect in accordance with Section 53G-6-1002, 199 to consider, discuss, or determine, in accordance with Section 53G-6-1004, an 200 individual student's eligibility to participate in an interscholastic activity, as that term 201 is defined in Section 53G-6-1001, including the commission's determinative vote on 202 the student's eligibility.] 203 (3) In a closed meeting, a public body may not: 204 (a) interview a person applying to fill an elected position; 205 (b) discuss filling a midterm vacancy or temporary absence governed by Title 20A, 206 Chapter 1, Part 5, Candidate Vacancy and Vacancy and Temporary Absence in 207 Elected Office; or 208 (c) discuss the character, professional competence, or physical or mental health of the 209 person whose name was submitted for consideration to fill a midterm vacancy or 210 temporary absence governed by Title 20A, Chapter 1, Part 5, Candidate Vacancy and 211 Vacancy and Temporary Absence in Elected Office. 212 Section 3. Section 53G-6-1003 is amended to read: 213 53G-6-1003 . School Activity Eligibility Commission -- Baseline range. 214 (1) There is created the School Activity Eligibility Commission. 215 (2) (a) The commission shall consist of the following members: 216 (i) the following two members whom the president of the Senate appoints: 217 (A) a mental health professional; and 218 (B) a statistician with expertise in the analysis of medical data; 219 (ii) the following two members whom the speaker of the House of Representatives 220 appoints: 221 (A) a board-certified physician with expertise in gender identity healthcare; and 222 (B) a sports physiologist; 223 (iii) the following two members whom the governor appoints: 224 (A) a representative of an athletic association; and 225 (B) an athletic trainer who serves student athletes on the collegiate level; and 226 (iv) one ad hoc member, serving on a case-by-case basis, who is: 227 (A) appointed by the athletic association in which the relevant student's school 228 competes; and 229 (B) a certified high school coach or official who coaches or officiates in a separate 230 region or classification from the relevant student's school and in the sport in 231 which the relevant student seeks eligibility. - 7 - S.B. 219 Enrolled Copy 232 (b) An athletic association may prepare and communicate the association's sport-specific 233 appointments described in Subsection (2)(a)(iv) in preparation for student requests in 234 a given sport. 235 (3) (a) A member of the commission described in Subsections (2)(a)(i) through (iii) shall 236 serve an initial term of one year, subject to reappointment for subsequent terms of 237 two years. 238 (b) If a vacancy occurs in the membership of the commission, the individual responsible 239 for the appointment of the vacant seat as described in Subsection (2) shall fill the 240 vacancy in the same manner as the original appointment. 241 (4) (a) (i) Except as provided in Subsection (4)(a)(ii), all members of the commission 242 constitute a quorum of the commission for a meeting to determine the eligibility 243 of a student. 244 (ii) All members of the commission described in Subsections (2)(a)(i) through (iii) 245 constitute a quorum for any meeting other than the meeting described in 246 Subsection (4)(a)(i). 247 (b) An action of a majority of a quorum constitutes an action of the commission. 248 (5) A majority of the commission members described in Subsections (2)(a)(i) through (iii) 249 shall elect a chair from among the members described in Subsections (2)(a)(i) through 250 (iii) to: 251 (a) schedule meetings of the commission; 252 (b) set the agenda of commission meetings; and 253 (c) facilitate discussion among the commission's members. 254 (6) A commission member: 255 (a) may not receive compensation or benefits for the member's service on the 256 commission; and 257 (b) may receive per diem and reimbursement for travel expenses that the commission 258 member incurs as a commission member at the rates that the Division of Finance 259 establishes under: 260 (i) Sections 63A-3-106 and 63A-3-107; and 261 (ii) rules that the Division of Finance makes under Sections 63A-3-106 and 262 63A-3-107. 263 (7) The commission may enter into an agreement with an athletic association to provide 264 staff support to the commission. 265 (8) (a) The commission shall establish a baseline range of physical characteristics for - 8 - Enrolled Copy S.B. 219 266 students participating in a specific gender-designated activity at a specific age to 267 provide the context for the evaluation of an individual student's eligibility for a given 268 gender-designated interscholastic activity under Section 53G-6-1004. 269 (b) In creating the baseline ranges described in Subsection (8)(a), the commission shall 270 include the physical characteristics for the age and gender group in a given 271 gender-designated interscholastic activity that are relevant to the specific 272 interscholastic activity. 273 (c) The physical characteristics described in Subsection (8)(b) may include height, 274 weight, physical characteristics relevant to the application of the standard described 275 in Subsection 53G-6-1004(3), or the extent of physical characteristics affected by 276 puberty, giving consideration to the practicability of considering the physical 277 characteristic when making an assessment of an individual student's eligibility under 278 Section 53G-6-1004. 279 (9) [Any record of the commission, including any communication between an athletic 280 association and the commission, that relates to] The following records that relate to the 281 application or analysis of or determination under this part regarding the eligibility of a 282 specific student shall be classified as a protected record under Title 63G, Chapter 2, 283 Government Records Access and Management Act[.] : 284 (a) any record of the commission, including any communication between an athletic 285 association and the commission; and 286 (b) any record that a school or LEA possesses. 287 (10) Members of the commission are immune from suit with respect to all acts done and 288 actions taken in good faith in carrying out the purposes of this part. 289 (11) The commission has no authority in relation to eligibility questions other than 290 participation in a gender-designated interscholastic activity under this part. 291 Section 4. Section 53G-6-1004 is amended to read: 292 53G-6-1004 . Eligibility for interscholastic activities. 293 (1) (a) Notwithstanding any state board rule or policy of an athletic association, and 294 except as provided in Subsections (1)(b) and (c): 295 (i) once a student has obtained the eligibility approval of the commission under 296 Subsection (2), the student may participate in a gender-designated interscholastic 297 activity that does not correspond with the sex designation on the student's birth 298 certificate; and 299 (ii) if a student does not obtain the eligibility approval of the commission under - 9 - S.B. 219 Enrolled Copy 300 Subsection (2), the student may not participate in a gender-designated 301 interscholastic activity that does not correspond with the sex designation on the 302 student's birth certificate. 303 (b) A student who has undergone or is undergoing a gender transition shall obtain the 304 eligibility approval of the commission under Subsection (2) to participate in a 305 gender-designated interscholastic activity that corresponds with the student's gender 306 identity. 307 (c) Nothing in this subsection prohibits a student from participating in a 308 gender-designated interscholastic activity in accordance with 34 C.F.R. Sec. 309 106.41(b). 310 (2) (a) When a student registers with an athletic association to participate in a 311 gender-designated interscholastic activity: 312 (i) a student who has undergone or is undergoing a gender transition shall notify the 313 athletic association of the student's transition and the need for the commission's 314 eligibility approval as described in Subsection (1)(b); 315 (ii) the athletic association shall notify the commission of: 316 (A) a student for whom an eligibility determination of the commission is required 317 due to the sex designation on the student's birth certificate not corresponding 318 with the gender designation of the gender-designated interscholastic activity in 319 which the student seeks to participate or the student's notice of a gender 320 transition under Subsection (1)(a)(ii); and 321 (B) the association's ad hoc appointment to the commission described in 322 Subsection 53G-6-1003(2)(a)(iv); and 323 (iii) the [commission] athletic association shall notify the student described in 324 Subsection (2)(a) regarding the process for determining the student's eligibility for 325 the activity under this section. 326 (b) The commission shall: 327 (i) schedule a [closed] non-public meeting to consider a student's eligibility to be held 328 within 30 days after the day on which the commission receives the notification 329 described in Subsection (2)(a); and 330 (ii) notify the relevant athletic association and the student's parents or legal guardians 331 of the scheduled meeting. 332 (c) Before the meeting described in Subsection (2)(b): 333 (i) the student for whom the commission has scheduled the meeting or the student's - 10 - Enrolled Copy S.B. 219 334 parent or guardian is not required but may submit to the commission any 335 information the student wishes to disclose to the commission that may be relevant 336 to the commission's eligibility determination, including information regarding: 337 (A) the gender-designated interscholastic activities for which the student seeks 338 eligibility; 339 (B) the gender-designated interscholastic activities in which the student has 340 previously participated; and 341 (C) the student's physical characteristics or medical treatments that support the 342 student's eligibility for the specific gender-designated interscholastic activity; 343 (ii) the commission may request additional evidence from the student that is: 344 (A) limited to the extent possible to protect the student's privacy; and 345 (B) only directly relevant to the commission's eligibility determination; and 346 (iii) the commission may offer the student a voucher to cover the cost of a diagnostic 347 assessment if the commission makes a request for medical information under 348 Subsection (2)(c)(ii) for which the student's insurance does not provide coverage 349 or reimbursement for the diagnostic that: 350 (A) would provide the requested information; and 351 (B) is not free or otherwise readily available to the student. 352 (d) During the meeting described in Subsection (2)(b): 353 (i) only the following individuals may be present or participate electronically: 354 (A) the student for whom the commission is meeting to make an eligibility 355 determination; 356 (B) the student's parents or guardians; 357 (C) the members and necessary staff of the commission; and 358 (D) any medical professionals or other witnesses the student chooses to include to 359 support the student's eligibility; 360 (ii) attendees may participate in person or electronically; and 361 (iii) the commission shall: 362 (A) hear the information that supports the student's eligibility; 363 (B) deliberate the facts relevant to the student's physical characteristics and 364 eligibility in camera or otherwise after temporarily excusing from the meeting 365 the student, the student's parents or legal guardians, and any medical 366 professionals or other witnesses whom the student includes; and 367 (C) render the commission's eligibility determination in accordance with - 11 - S.B. 219 Enrolled Copy 368 Subsection (3) or request additional information and schedule an additional 369 commission meeting to be held within 30 days of the meeting and in 370 accordance with this Subsection (2)(d) to discuss the additional information 371 and render the commission's eligibility determination. 372 (e) The commission may not address the commission's application or analysis of or 373 determination under this part regarding the eligibility of a specific student in a public 374 meeting or public communication. 375 (3) (a) In making an eligibility determination, the commission, after considering whether 376 the student's assertion of a gender identity is consistent with the statutory definition 377 of gender identity as that term is defined in Section 34A-5-102, including the 378 implications for the student's mental health of participating in the gender-designated 379 interscholastic activity, shall: 380 [(a)] (i) make a determination regarding whether, when measured against the relevant 381 baseline range described in Subsection 53G-6-1003(8), granting the student's 382 eligibility would: 383 [(i)] (A) present a substantial safety risk to the student or others that is significantly 384 greater than the inherent risks of the given activity; or 385 [(ii)] (B) likely give the student a material competitive advantage when compared 386 to students of the same age competing in the relevant gender-designated 387 activity, including consideration of the student's previous history of 388 participation in gender-designated interscholastic activities; and 389 [(b)] (ii) record the commission's decision and rationale in writing and provide the 390 written decision to the [student] athletic commission within 30 days after the day 391 on which the commission renders an eligibility decision under Subsection (3)(a) in 392 a meeting described in Subsection (2)(b). 393 (b) Upon receipt of the commission's determination and rationale under Subsection 394 (3)(a), the athletic commission shall notify the student and the relevant school or 395 LEA of the commission's determination and rationale. 396 (c) A school or LEA shall comply with the commission's determination under this 397 Subsection (3). 398 (4) (a) Notwithstanding any other provision of law and except as provided in 399 Subsections (3)(b) and (4)(b), the commission may not disclose: 400 (i) the name of a student whose eligibility the commission will consider, is 401 considering, or has considered; or - 12 - Enrolled Copy S.B. 219 402 (ii) the commission's determination regarding a student's eligibility. 403 (b) The commission shall disclose the commission's determination of a student's 404 eligibility for a given gender-designated interscholastic activity to the relevant 405 athletic association, only for the purpose of confirming whether the student is eligible 406 for the interscholastic activity. 407 (c) (i) Notwithstanding any other provision of law, an athletic association may not 408 disclose the information described in Subsections (4)(a)(i) and (ii). 409 (ii) Nothing in this Subsection (4) prohibits an athletic association from affirming 410 that a student is eligible if the eligibility of a student is questioned. 411 Section 5. Section 53G-6-1007 is amended to read: 412 53G-6-1007 . Indemnification -- Enforcement. 413 (1) The [state shall defend, indemnify,] attorney general shall defend and the state shall 414 indemnify and hold harmless a person acting under color of state law to enforce this part 415 for any claims or damages, including court costs and attorney fees, that: 416 (a) are brought or incurred as a result of this part; and 417 (b) are not covered by the person's insurance policies or by any coverage agreement 418 issued by the State Risk Management Fund. 419 (2) An LEA or school within the public education system with a team that competes in an 420 interscholastic athletic activity is responsible for the enforcement of this part in relation 421 to the LEA's or school's teams. 422 Section 6. Effective date. 423 This bill takes effect on May 1, 2024. - 13 -