Privacy concerns remain in the transgender sports case after a Utah judge sealed only some health records

SALT LAKE CITY (`) — Transgender teenagers challenging a Utah law that bans trans girls from participating on girls' sports teams can keep parts of their mental health records confidential after a state judge ruled Thursday that some details are irrelevant to the case .

Two student-athletes whose families sued over the 2022 state law were ordered by Judge Keith Kelly in September to give prosecutors access to the last seven years of their mental health records, as well as any documents related to medical transition and puberty.

Kelly temporarily blocked the state from enforcing the ban, which took effect last year after the Republican-controlled Legislature overrode Gov. Spencer Cox's veto while the court continues to consider its legality.

Cox drew national attention for being one of the few Republican governors to push back against state lawmakers' restrictions on transgender youth, warning that such bans target children who are already at high risk of suicide. Utah is one of more than a dozen states that have enacted such bans.

Kelly decided last August to allow transgender girls to compete in sports again after listening to several hours of testimony from students who described how exclusion from sports caused them significant distress. He described the ban as “clearly unfavorable treatment” and said it must be suspended to protect the girls from “irreparable harm” and serious impact on their mental health.

However, because the girls' “physical, mental and emotional circumstances” played a role in his decision to issue the restraining order, he also concluded that their mental health records were relevant to the case.

His ruling Thursday does little to address privacy concerns raised by plaintiffs' lawyers, who argue that the state should not have access to children's deeply personal mental health records beyond their therapist-client privilege have renounced.

Only details about irrelevant third parties, specific individual events and students' deadnames or birth names they no longer use remain redacted, Kelly said Thursday.

“These children should be able to speak freely in their therapy sessions without intruding on the privilege that exists between patients and providers,” Amy Whelan, an attorney for the plaintiffs, told The Associated Press after the hearing. “And the issues they discuss are not actually up for debate in a sports case.”

Whelan said the next step is to work internally with the state's attorneys on how those records might be used in court. Before defense attorneys begin testimony, the families' attorneys will outline what they believe is and is not appropriate to require the minor plaintiffs to attempt to “avoid any potential harm or distress that may result.” , to keep it as low as possible, she said.

Lawyers for the attorney general's office, which represents the state, have argued that they should have full access to the girls' mental health records, including parts that may not appear relevant to the case, so they can assess whether state law is responsible suffering that the girls described. By focusing their arguments on the ban's alleged mental health effects, defense attorney Jason Dupree argued that the plaintiffs had opened the door to a full investigation into their mental health histories.

The attorney general's office did not immediately respond to phone messages seeking comment on the outcome of Thursday's hearing.

The girls' families argue in their lawsuit that categorical bans on transgender athletes result in their daughters being treated worse than other girls. Their lawyers say the law views a student's transgender status as an indicator of athletic ability and does not take individual circumstances into account.

But supporters of the law say transgender athletes have inherent advantages and threaten fairness in girls' sports.

In Utah and other states that have enacted similar bans, there have been few cases of potential competitive advantage in K-12 sports.

With the holding ban, a replacement plan for screening transgender athletes was met with similar criticism.

A commission made up of politically appointed experts from the fields of sports and medicine can now decide on a case-by-case basis whether the participation of a transgender athlete endangers fairness. Republican state lawmakers created the commission in another 2022 law as a backup plan to be implemented in the event of an injunction. The panel can check a child's height and weight and whether he or she is taking puberty blockers or hormones, which some critics say crosses the line.