A Utah judge has granted the state unprecedented access to the private medical records of two transgender minors — including any of their counseling and mental health reports and specifically any documents about when they started puberty.
The minors are both transgender girls suing over Utah’s 2022 ban on athletes like them playing high school sports for girls’ teams. Judge Keith Kelly said the girls’ medical records “go to the issues that are squarely raised in this case.”
Their health, when they started transitioning, what medications and care they’ve received through that and how they’ve been mentally impacted by the ban is the basis of their legal claims, he said. As such, Kelly ruled that the state has a right to review those sensitive records during the discovery process.
“Their physical, mental and emotional conditions are all relevant issues,” he said.
Until Monday’s ordered disclosure, the minors had been granted wide protections to safeguard their privacy — including being anonymous in all filings. Releasing their medical records is the first time the court has required their personal information be shared with the state.
And it raises questions now of what the state will get access to and what it will be able to do with those private records. A decision has not yet been made on whether the medical information will be allowed in the eventual trial in the case, a date for which has not yet been set.
Utah’s case is playing out at the same time other conservative-led states in the nation are similarly trying to institute bans on transgender athletes in high school sports under their preferred gender.
Here, the state has so far faced an uphill battle in fighting to uphold the ban, known as HB11, instituted by lawmakers. Kelly previously ruled last year to grant an injunction that has stopped the ban from being enforced while the lawsuit moves forward.
He based that decision on the “irreparable harm” he said the girls would face if they were banned, including what he feared could be a negative and severe impact on their mental health. And he noted that the female plaintiffs have all taken medication to prevent them from going through male puberty, meaning they shouldn’t have any physical advantages that the state has argued they would from being born boys.
It’s because of that previous ruling, he said, that he had to grant the state access to the medical records. He based his decision for the injunction on the health impacts of the ban — and the girls’ attorneys had argued the same — so that means their health records are pertinent to the arguments going forward.
But Kelly also said that the girls have a right to some privacy. While their medical records will be shared with the state, he ordered that it be done under an updated protected order that keeps the files marked as “attorney’s eyes only.”
That means only the lawyers defending the state’s ban can see the health reports.
They should remain “highly confidential,” Kelly said.
The girls’ arguments
The attorneys for the girls — identified in court records by the pseudonyms Jane Noe and Jill Poe — had conceded to granting the state access to documents about the plaintiffs’ medical transitions and diagnosis of gender dysphoria, a condition of distress where a person does not feel like they were born in the right body with the sex they were assigned at birth.
But the attorneys had argued strongly against releasing their mental health reports.
Kevin Heiner, who is representing the girls, said mental health is complex for any teen to navigate, but especially those who have gender dysphoria. And those records should remain privileged for these girls because there could be private discussions with a therapist that go beyond the girls talking about being transgender.
“Mental health is the holdout for us,” he said.
(Francisco Kjolseth | The Salt Lake Tribune) Attorneys for the American Civil Liberties Union Kevin Heiner and Amy Whelan representing two transgender athletes speak with the judge during oral arguments in the Jenny Roe V. Utah High School Activities case on Monday, Sept. 11, 2023.
Heiner said he worries about the implication of the state getting further medical records for these girls, when their doctors have already confirmed the diagnoses for gender dysphoria, which is the basis for the case.
But Kelly countered by saying, “Mental health records are very relevant” when the plaintiffs have argued the ban has harmed them emotionally.
The girls’ attorneys have already provided documents that show both of them have been undergoing hormone therapy to stop their progression through puberty. But the state’s lawyers wanted more than that.
They’ve now been granted access to the last seven years of mental health records for Jane Noe and Jill Poe, as well as all medical documents related to puberty, medical transition and any gender dysphoria treatment. The girls’ attorneys are required to hand those over in the next month.
They have said the ban violates the Utah Constitution by denying transgender girls an equal opportunity to play based on their identity.
The state’s arguments
Jason Dupree, an attorney with the Utah Attorney General’s Office who is representing the state, argued that counseling is part of the recommended treatment for gender dysphoria and is therefore relevant to the case.
“We are entitled to explore that information,” he said. “… At every step of the way in this case, the plaintiffs have made this about their medical diagnoses. … They have opened the door to their mental health.”
He argued for full access to mental health records, even those that might not seem relevant, so the state can explore whether the ban is really to blame for any distress the girls are experiencing or if there are other issues at play.
He pointed to previous testimony from Jenny Roe. Jenny Roe is no longer part of the case after dropping out, her attorneys said, from the stress of it.
But previous information submitted to the court by her family indicated, Dupree said, that she’d been dealing with issues with her parents for years prior to the ban and that could be the cause for her grades slipping — rather than the fault of the ban.
“The psychological harms the plaintiffs allege could be caused by something else,” Dupree said.
(Francisco Kjolseth | The Salt Lake Tribune) Attorneys for the state David Wolf, left, and Jason Dupree ask a question of the judge during the Jenny Roe V. Utah High School Activities case on Monday, Sept. 11, 2023, that challenges a new law that blocks transgender girls in Utah from competing in high school sports on a girls’ team.
That made the full records relevant, Kelly said, adding he would be wary to approve any redactions of the mental health records for that reason.
The state also argued for all records dealing with transition, including documents from the time the girls started puberty. With Jill Poe, Dupree argued, previous court testimonies have indicated that she started puberty at 11 years old and then transitioned around 14 years old. She is now 15 years old and a 10th grader in Jordan School District.
That gap, Dupree said, shows that Jill Poe could have gained some advantages from going through puberty for a few years as a boy before starting medication to stop the process. The state wants to explore that more, he added.
“So yes, puberty is a relevant condition in this litigation,” he said.
Dupree also said that Jane Noe, who is 14 years old and a student in Granite School District who swims, has won several medals in competitions. So the state has questions about when she started hormone therapy and how that might have impacted her athletic abilities.
The state’s attorneys have argued that the ban from lawmakers is an effort to protect those who were born girls from unfair competition. They say transgender girls have inherent physical advantages by being born boys and going through puberty, such as bigger bodies, hearts and lungs, wingspans and height. That’s why they want to review medical records.
The judge also granted the state access to all photos and videos of the girls in competitions from the past three years, even though the girls’ attorneys had argued that would be unduly burdensome.
The girls’ attorneys will also be required to provide a list of coaches who have worked with the girls and know that they are transgender.
What’s next?
Kelly said he’s anxious “about getting this case done” and moved through the court quickly.
He previously denied the state’s motion to dismiss the case. But he will hear further arguments on that in a Dec. 7 hearing.
Meanwhile, now that the state has access to the medical documents, the discovery process will move forward, with a trial likely in the next year.
And while the injunction on the ban is in place, the state has moved forward with its backup process for vetting transgender girls before they are allowed to compete.
Under that, a commission makes decisions on which transgender female students can compete by evaluating an athlete’s wingspan, weight and height and whether they are taking hormone blockers so they don’t have an “unfair advantage.”
At the same time, though, the state has banned gender affirming care for minors, which would include new prescriptions for hormone blockers (anyone already taking them can continue doing so). So that means players who weren’t previously taking those but want to, won’t be able to; advocates have said that was intentional to further stop transgender athletes from getting the opportunity to play.
