Alaska Beacon

The Matanuska-Susitna Borough School District board on Wednesday approved an activities policy that would prohibit transgender girls from competing in girls sports. The action comes as federal agencies continue to affirm legal protection for people discriminated against based on gender identity.

Attempting to ban transgender girls from playing on girls’ teams constitutes illegal discrimination under the federal law known as Title IX, according to the ACLU of Alaska. Title IX prohibits sex-based discrimination in any education program or activity offered by a school that receives federal funding.

“The Mat-Su, and any other school board or district that’s considering this, is putting themselves in legal peril, and this kind of litigation has ended up being very, very costly in other states,” said Stephen Koteff, the ACLU of Alaska’s legal director.

“Rather than engage in this kind of legal showdown, I think that school districts should look seriously at what the costs are for this kind of exclusion when the real impacts just aren’t there. The fears and the myths that surround this kind of discrimination do not at all surface to the level of fact, and that’s unfortunate that we’re dealing with this kind of legislation when there’s no real problem to be addressed,” he said.

Last June, the U.S. Department of Education announced it would extend Title IX prohibitions on sex-based discrimination to include discrimination based on sexual orientation and gender identity. The action stemmed from the U.S. Supreme Court decision in Bostock v. Clayton County.

“Title IX prevents discrimination on the basis of sex,” Koteff said. “Bostock found that the term sex includes sexual orientation and gender identity.”

More recently, the United States Department of Agriculture’s Food and Nutrition Service issued guidance last month that affirms the Department of Education’s conclusion that Title IX’s prohibition on sex discrimination includes a prohibition on discrimination based on gender identity and sexual orientation.

Pushing back on legal protections for transgender individuals, Alaska Attorney General Treg Taylor on June 14 signed onto a letter from attorneys general of 26 states asking the federal guidance to withdraw the USDA guidance.

Koteff isn’t surprised. “This state’s administration is continuing to persist in its opinion that trans youth are not protected by the provisions of Title IX,” he said. “But even without Title IX, these bans would still be illegal under both the U.S. and certainly the Alaska Constitution.”

Department of Law Communications Director Patty Sullivan wrote in an email the Alaska Department of Law is not aware of any law specifically addressing transgender individuals in Alaska.

“The reason the Attorney General signed on to this letter is we believe the federal government is taking the Bostock decision and applying it outside of the specific context in which it was decided and extending it in an unwarranted manner that attempts to tie states’ hands. We hope the USDA reverses course and stays within its lane.”

President Biden has issued two executive orders last year and on Wednesday that affirm rights of transgender people to not be discriminated against.

Most spoke against the policy change

The Mat-Su school board voted 6-1 to approve the activities policy revision, which states, “A student who participates in an athletic team or sport designated female, women, or girls must be female, based on the participant’s biological sex as either female or male, as designated at the participant’s birth.”

The revised policy prohibits transgender girl students from participating in girls sports and teams. The policy would impact teams and sports within the Mat-Su Borough School District; it would not apply to teams from other districts competing within the Mat-Su school district.

The decision followed testimony from about 35 individuals — around 20 spoke out against what most called a discriminatory policy, while 15 testified in support of it. A couple testifiers said they’d sue the district if it passed.

Alex Squires, a Mat-Su student going into 12th grade, said the school board should focus on “actual problems” rather than focusing on “made up ones.”

“We have many problems in our school right now – bullying, drugs, mental health problems, staff shortages, students not getting quality education. I see it every day. And many more problems. The school decides that it wants to promote sex equality, but this cannot be done by discriminating against transgender athletes,” Squires said. “Trans athletes deserve to have access to the same resources as other students in a way that they can be comfortable and safe in their environment.”

Declan Farley, a 2021 Palmer High School graduate and transgender athlete, noted the high rates of suicide rates for transgender individuals.

“Excluding these students from the joy of the things that they love most, such as sports, puts them at a higher risk of suicide,” he said. “I cannot change the way that I was born, but you can all change the way that you treat those different around you. Transgender people, such as myself, want to be treated with the same respect as everyone else.”

Supporters of the policy spoke about biological differences between male and females, and the rights of athletes whose biological sex at birth was female.

Keri Anderson told the board “I’m here to applaud you” for bringing forward the policy.

“Sports are such a blessing in the lives of girls. We must protect these opportunities for girls by not allowing male-bodied athletes the physical advantage that they do have to ever take their place,” Anderson said. “Please do not allow even one girl to experience exclusion on her playing fields and let a male-bodied athlete take her spot.”

During board discussion, board President Ryan Ponder said the policy is meant to “maintain fairness in athletic opportunities for women” and “ensure discrimination against girls and women does not occur.” He added the policy is supported by federal law and federal case law.

Of the 7-member board, member Dwight Probasco was the only no vote.

The new policy was first introduced June 1. It mirrors Alaska Senate Bill 140, which the Legislature failed to pass after it was tabled twice during the final days of the session.

James Brooks contributed to this report.

Nearly 2,000 more people died in Alaska than was expected in 2020 and 2021, according to a new report by the Alaska Department of Health and Social Services. COVID-19 played a direct role in a large proportion of those. While the other unexpected deaths may not be directly related to individuals being infected with COVID, the secondary effects of COVID-19 and the pandemic — like a strained medical system or a decrease in preventive care measures — may be factors.

The 2020-2021 Excess Death Report says “the pandemic significantly impacted Alaska’s mortality rates, which disparately affected populations by sex, race, region, and age.”

“Excess,” or unexpected, deaths is the difference between how many deaths actually occurred and how many deaths were expected to occur based on model predictions.

In total, 1,933 more people died than was predicted in 2020 and 2021. Of those, 1,097 were reported as COVID-19-related deaths. Unexpected deaths spiked in October 2021 when the spread of the highly infectious SARS-COV-2 delta variant was common. In that month, 741 Alaska residents died, 324 more than expected.

Although more elderly Alaskans have a higher risk of dying from COVID-19, the pandemic increased premature deaths among non-elderly adults as well. Rosa Avila, deputy chief of health analytics and vital records with the Alaska Department of Health and Social Services, said that was striking to her. She co-authored the report.

“Since elderly were high-risk for severe outcomes from COVID-19, a lot of people expected we would have excess deaths in those age groups, but we didn’t just see it there. We saw excess deaths between those that were 35 years of age to 64 years of age, so the non-elderly group, and they are quite significant,” Avila said.

Avila was also surprised by the regional nuances.

“In terms of Anchorage being a more dense population, I was at first expecting that excess deaths would be higher in Anchorage, but they were actually, in terms of the rate, higher in the Mat-Su area followed by Gulf Coast. And so those were statistically significant,” she said. The public health Gulf Coast region includes the Kenai Peninsula Borough, the Kodiak Island Borough and the Valdez-Cordova Census Area.

Avila said the impact of COVID-19 is larger than what many may believe.

“Even though you might not consider yourself that at-risk, there are demographics in here that show that people in age groups that we didn’t really consider very high risk are still having excess deaths. And it might not just be specifically because of COVID. It could be also from the strained health care system. So, the impact, I think, is larger than what might have been presented in some people’s minds,” she said.

“We’ve been tracking the number of COVID deaths all along but we forget about how much of a mortality impact there is on people who don’t think that they’re high-risk just because of the indirect impacts from a pandemic in general, and I think that’s what this report helps highlight.”

So far in 2022, 170 Alaska residents have been reported to have died from COVID-19.

Read the Alaska Department of Health and Social Services 2020-2021 Excess Death Report here.

In his 26 years of being incarcerated, Sylvester Byrd Jr. never had access to the internet. “I went to prison in 1995, like, right as the internet started.” When he got out in 2021, Byrd said he felt like he had missed “the whole entire thing.”

Byrd was lucky to have a “phenomenal support network” when he got out of prison, but he said there are skills he wished he could’ve learned beforehand that would’ve made re-entering easier. Things like online banking, filing taxes online, paying bills online, how to look for a job, how to present yourself over Zoom and interview online, how to identify spam. The list goes on.

“How would you do so many day-to-day things that people take for granted out here because it’s readily available? You know, people grow up with a tablet in hand or a smartphone in hand,” Byrd said. “I don’t think anybody inside understands that a car can park itself now.”

The Alaska Department of Corrections doesn’t allow inmates to access the internet and state law prohibits prisoners to have a computer “of any kind” in their cell. There was a legislative effort this past session to change that — House Bill 118 sponsored by Sitka Democrat Rep. Jonathan Kreiss-Tomkins — but it failed to pass this session.

Still, the Department of Corrections is moving forward with planning to implement tablet use to supplement existing resources and teach inmates some of the skills on Byrd’s list.

“Our goal is to be able to allow them to take these computers or these tablets into their cells,” said Laura Brooks, director of health and rehabilitation services at the Department of Corrections. “Eventually we want to see this bill go through.”

By “tablet,” Brooks is not referring to the common understanding of what a tablet is, like an iPad or a Surface. Rather, she means tablets that are “designed for correctional use and they have a multi-layer security matrix that lets inmates access approved content without being able to access the internet.”

Computer access varies across state

Department of Corrections has 13 facilities around the state. Brooks said each is different when it comes to access to computers, which are preloaded with learning and typing programs, like Microsoft Office.

“Out at Goose Creek, we have probably several dozen computers in the education space. A facility like Ketchikan only has a handful. But we have that available to offenders of every facility,” Brooks said.

“Having tablet access would open up opportunities for a lot more of our inmate population,” she said.

Brooks recognizes there are inmates, like Byrd, who entered the corrections system before devices like smartphones became ubiquitous.

“Part of our focus on rehabilitation is making sure that they’re ready to reenter society, and ready to go to work, ready to apply for jobs online, ready to access Uber — things like that. And so trying to make sure that the resources that we have inside can simulate some of those things for when they get released is a big step towards rehabilitation,” Brooks said.

Other resources that could be made available include computer literacy, GED testing, substance abuse programming, mental health programming, meditation programs, guided learning on depression and anxiety and things like that.

The bill

Kreiss-Tomkins first introduced HB 118 in 2021. It would amend state law to allow prisoners to have and use a computer in their cells for purposes that facilitate their rehabilitation or compliance with a reentry or case plan, including access to legal reference materials, visitation, or health care.

It went through committee hearings in House State Affairs toward the end of the session in 2021. This year, the bill passed the House 31-1 in early February. When it went to the Senate, it got referred to the Senate State Affairs Committee and that’s where it remained for the rest of the regular session.

“There was time for it to pass out and there was one hearing, I think, in the last week of session, but it did not pass out,” Kreiss-Tomkins said.

Sen. Mike Shower, R-Wasilla, said a couple factors contributed to the bill not moving from his committee. They included what Shower described as a lack of a plan by Senate leaders on what bills were supposed to pass. He also said, “Some committee members that weren’t particularly happy” about the bill and still had questions.

Kreiss-Tomkins, who isn’t running for re-election, still wants to see the bill go through. “Something I will do through the course of this year is try to make sure that somebody picks up this bill to try to get it passed next year. I ultimately want to make sure it happens. And I tend to think it’s just a when, not an if.”

Brooks agrees and anticipates the bill, or a version of it, passing eventually.

Cost

Jonathan Pistotnik, coordinator for the Anchorage Reentry Coalition, supported HB 118, but is skeptical about the tablet concept.

“Those of us that were advocating for the bill on the reentry side, we were not talking about tablets, we were talking about computer access,” he said. The bill came with a zero fiscal note, which Pistotnik called “a red flag.”

“The Department of Corrections has found a no cost solution with tablets and I think there are going to be unintended fees and consequences that kind of go along with this. They’re going to pass on the cost to somebody and it’s probably going to be the incarcerated people who don’t have money to begin with, or their families who are already overburdened with, you know, keeping in contact with their loved ones,” Pistotnik said.

Access to tablets could be a positive change as long as there are no associated fees for incarcerated people, he said. They could provide a pathway for inmates to learn needed skills for reentering the community and staying out of prison.

“When somebody gets released, they still need a job, they still need a place to live, they still need food, they’ll still need their ID. And if they can’t get that stuff on the outside, then they’re still in that precarious situation. But if they build up that resiliency and that sort of foundation before they get released, I think it would improve the possibilities that they stay in the community and that they’re successful,” Pistotnik said.

Moving forward

Brooks isn’t sure, at this point, what the costs of implementing tablets are. “It depends on the vendor,” she said. “What I can tell you is, whatever cost there may be for the inmate or their family, there would be exceptions made for folks who are indigent, so they’re not going to be denied access to this if they have no money on their books.”

But, she said, Department of Corrections is moving forward with planning for tablet access. “We’re working on a policy now to determine who would and under what circumstances someone may not be able to access a tablet.”

She doesn’t envision a near future where an inmate is sitting in their cell participating in a college class over Zoom, but the department is considering different options. Even video visitation is “on the table,” she said.

“At this point, we’re focusing on supplementing the programs that we currently have, but if this bill were to go through and we were able to provide tablets, I think it would open up a whole lot of other doors. I think the possibilities are almost endless.”

Byrd, who reached “one year being free” in May, said he’d like to see access to technology in prison expand beyond preloaded tablets. “There are guys with no chance of getting out who are genuinely wanting to better themselves. There’s three guys that I know personally, very good friends of mine, who want to do college classes. However, the only way to do them, especially during COVID, was online.”

As far as the possibility of video visitation, Byrd would’ve liked to have had that when he was in prison. “I could have talked to my mom before she passed.”

Beneath the surface of Alaska’s partially frozen landscape, permafrost is being replaced by what might be considered its opposite: soil that stays unfrozen, even in winter.

Taliks are sections of year-round thawed soil that are wedged in areas with permafrost, generally between the lower layers that remain in freeze and the active surface layers that freeze and thaw with the seasons.

Now talik formation is speeding up, thanks to warmer winters, increased snowfall and the combination of those factors, according to research by permafrost experts at the University of Alaska Fairbanks.

The findings are detailed in a study published this week in the journal Nature Geoscience.

The study uses the temperature readings from long-established permafrost monitoring sites that have been sending data nearly continuously since as early as 1999. The 54 sites chosen for the investigation into talik formation ranged from the Canadian border area in the east to the Seward Peninsula in the west. The sites were both below and above the Arctic Circle and are places where permafrost is classified as discontinuous and where the state of freeze might be considered marginal. None of the sites had any unusual surface disturbance, such as wildfire scarring, that might have hastened thaw.

The state of thaw took a big jump in the winter of 2017-18, when new taliks were found at 24 of the sites, the study found. That coincided with exceptionally snowy and warm conditions that winter.

Warmer winter air temperatures are tied to talik formation, as is thick snow cover, which insulates the ground from the winter cold, said lead author Louise Farquharson, a research assistant professor at UAF’s Geophysical Institute.

The talik expansion is ominous, Farquharson said.

Since the presence of talik enables further thaw, talik expansion has implications for release into the air of carbon long sequestered in permafrost, she said. “This is going to really accelerate the amount of carbon mobilization that happens,” she said.

More talik also likely means more problems for structures and facilities on the ground surface, where thaw is already creating numerous maintenance and repair challenges in Alaska, Farquharson said. And there are yet-to-be determined effects on the flow of water over the landscape, including the possible new movement of contaminants and mercury through groundwater, she said.

Farquharson and her colleague calculated that a decade from now, if carbon emissions and warming continue at present rates, talik formation will be happening in up to 70% of the zone considered to be discontinuous permafrost — and by 2090, talik layers in some parts of the black spruce forest and other ecosystems will be nearly 40 feet thick.

Unlike the abrupt permafrost collapses found at eroding coastal bluffs, at areas of intense wildfire or at sinkholes in ice-rich areas of tundra landscapes, talik development is not obvious to the casual observer.

But it affects a lot more territory, Farquharson said.

“If we look at talik development, it’s a slower process but it’s much more widespread,” she said. “The taliks are going to form across the whole landscape.”

In time, that will include higher-latitude areas where the permafrost layers are, for now, unbroken. “This is going to expand northward into continuous permafrost,” she said.

Taliks can sometimes refreeze, if air temperatures are cold enough and snow is sparse enough. Farquharson and her colleagues actually found two examples of refreeze in their study, at Healy near Denali National Park and near Tanacross in the eastern part of Interior Alaska.

But do not expect any such refreezing after about 2030, according to the study. By then, if warming trends continue as expected, conditions will no longer allow refreezing, no matter how little snow falls.

“We’re kind of in a flickering-light phase right now,” Farquharson said.

The pattern of snow-linked talik formation persisted last winter, which featured record or near-record early winter snowfall in Interior Alaska. In Fairbanks, winter rain that created a durable coating of ice was followed by heavy snow, all creating havoc for drivers and for utilities. At Denali National Park, it was the snowiest December on record, according to the National Weather Service. Heavy snow collapsed the roof of the only grocery store in Delta Junction, about 90 miles southeast of Fairbanks.

Soil temperatures over the past winter were “significantly warmer” than the previous winter, Farquharson said. “That snowfall wasn’t good for permafrost,” she said.

For Fairbanks and the area around it, patterns of snow and winter precipitation have changed in the past decades, but in somewhat complicated ways, said Rick Thoman, a scientist with the Alaska Center for Climate Assessment and Policy at UAF.

Total winter snowfall in the region hasn’t increased or decreased, but the snow season has become compressed, Thoman said. “We’re getting more snow in a shorter period of time,” he said. Meanwhile, winter rain events, such as the one that drenched Fairbanks last winter, have become more frequent, he said.

There is a climate-change link to that precipitation pattern. The Bering Sea has become, over time, less icy, allowing more evaporation from open water later in the year, he said. “In Interior Alaska, that’s the primary source of moisture in the wintertime,” he said.

An Anchorage Superior Court judge is considering when and if it is legal for a state legislator to ban a constituent from the lawmaker’s legislative Facebook page.

On Wednesday afternoon, Judge Thomas Matthews heard oral arguments in a lawsuit brought by an Eagle River woman against Sen. Lora Reinbold, R-Eagle River. After hearing arguments, Matthews took the case under advisement, with a decision to be issued soon.

Bobbie McDow, the plaintiff, is asking for an injunction against Reinbold, plus financial damages and attorney fees. 

The verdict could determine how Alaska state legislators conduct themselves on the internet in the future, and it’s already having an effect on Alaska politics.

In a video published on Facebook, Reinbold said she will not be seeking reelection. Explaining her decision, she cited the demands of the lawsuit against her and said she had spent more than $60,000 on her defense.

The lawsuit, filed in 2021, is one of several across the country that is attempting to determine whether an elected official’s actions on social media can violate a constituent’s constitutional right to free speech and association.

“This may be a novel question for the Alaska courts, but at least there are some courts around the country that have addressed these issues,” Matthews said.

Those other courts have split on the topic, and the verdict in this case could set a precedent for interpreting the Alaska Constitution online. At least one similar lawsuit has already been filed. On June 1, a constituent of Rep. Kevin McCabe, R-Big Lake, sued that legislator after being blocked from McCabe’s Facebook page.

Attorneys representing McDow and Reinbold agree on the basic facts: In 2021, McDow commented disparagingly on several of Reinbold’s posts on her “Senator Lora Reinbold” Facebook page. She also criticized the words of other commenters.

From 2020 through this year, Reinbold has repeatedly criticized Alaska’s response to the COVID-19 pandemic and has repeatedly written and spoken against anti-pandemic precautions and the COVID-19 vaccine. 

McDow criticized Reinbold’s remarks, saying in part that “Reinbold is attracting a lot of conspiracy theorists,” and told her to “stop whining and do her job.”

Reinbold deleted several of McDow’s comments and on April 29, 2021, banned her from commenting altogether for 24 hours. 

McDow and her attorneys say that amounts to a violation of her free-speech rights because Reinbold was acting as a member of the state government, in a public forum, and discriminated against McDow because of her viewpoint.

One of McDow’s attorneys, Nicolas Feronti, told Matthews that the three-part test — action by a government employee, in a public setting, and viewpoint discrimination — is key to establishing whether Reinbold violated the free-speech rights guaranteed by the Alaska Constitution.

“It is important,” he said. “This is more than just a quip about Facebook. Our country, our state, our communities, all of our communities in this state — now, more than ever, in this political climate, we need a full and fair exchange of ideas.”

Reinbold is represented by Heather Brown, who presented a different view. Speaking to Matthews, she said Reinbold’s Facebook page is not a public forum and argued that it’s akin to a house leased from someone else.

“Facebook is a house, and she’s just a tenant leasing it,” she said, arguing that Reinbold’s page was not an official government page.

She disputed that Reinbold was acting as an official of the government when Reinbold’s ability to act as an official is limited to her actions within the Legislature. On her own, she cannot pass legislation or enact law.

“I think your honor has more power than she does,” Brown said.

McDow was banned from Reinbold’s page for 24 hours, and Brown said that action was taken because Reinbold believed she was acting simply to incite reactions from other users and not to express a viewpoint.

Feronti argued that there’s no other way to view the ban than as an act against McDow’s viewpoint.

“You can read it 100 times. There’s no other reasonable way to look at it,” he said.

In late 2021, the Legislature’s Select Committee on Legislative Ethics concluded that Reinbold violated state law when she banned a different person, retired biologist Rick Sinnott, from her Facebook page.

The committee recommended no punishment but said the Legislature should update its social media policies to discourage similar future actions. 

That update has not taken place, and days before this week’s hearing, Reinbold filed a lawsuit against the ethics committee and the state, saying the committee acted improperly.

The suit asks a state court to dismiss the ethics case and award Reinbold a financial settlement. Neither the Legislature nor the Alaska Department of Law have formally responded to the suit, which has been assigned to Matthews. 

The chairman of the Alaska State Human Rights Commission filed a lawsuit Wednesday against Lt. Gov. Kevin Meyer and the Alaska Division of Elections, seeking to pause the ongoing special U.S. House primary election.

According to plaintiff Robert Corbisier, the election — Alaska’s first statewide vote conducted entirely by mail — discriminates against “visually impaired voters,” those considered blind or with vision problems.

The Anchorage Daily News first reported the lawsuit.

The suit, filed in Anchorage Superior Court, asks a judge to block the state from certifying the results of the special election “until such time as visually impaired Alaska voters are given a full and fair opportunity to participate in such election.”

Election Day is June 11, final results are expected by June 21, and elections officials have said they expect to certify the results by June 25.

The four candidates who receive the most votes in the primary will advance to a special general election on Aug. 16, where a winner will be chosen in a ranked-choice vote.

The winner of that vote will serve in office until the winner of the November general election is seated in Congress early next year.

The Division of Elections has not yet responded to the lawsuit, and the court system has scheduled it for expedited consideration.