Story at a glance
- Idaho’s governor signed two bills into law that limit the rights of transgender people.
- Advocates for the transgender community allege that the laws are unconstitutional.
- One of the laws ignores a 2018 federal court ruling that said banning birth certificate sex changes violates the Equal Protection Clause in the constitution.
LGBTQ+ advocates are disputing the constitutionality of two laws signed by Idaho Gov. Brad Little that prohibit sex changes on birth certificates and ban transgender girls and women from competing in women’s sports leagues.
“The ACLU of Idaho condemns Governor Brad Little’s decision to sign discriminatory, unconstitutional, and deeply hurtful anti-transgender bills into law. Leaders from the business, faith, medical, education and athletics communities will not forget this decision or what it says about the governor’s priorities during a global pandemic. The ACLU will see the governor in court,” said the American Civil Liberties Union (ACLU) of Idaho in a statement.
Passed by both houses, the deadline for both bills to be vetoed was March 31, which is also on the International Transgender Day of Visibility.
“While the rest of the world is trying to solve our public health crisis, Idaho has prioritized creating a new public health problem for transgender people,” Lambda Legal Staff Attorney Kara Ingelhart said in a release.
One bill, HB 509, is based on the premise that “biological distinctions between male and female are a matter of scientific fact, and biological sex is an objectively defined category that has obvious, immutable, and distinguishable characteristics.” The law makes Idaho one of three states that do not allow for such a change, along with Ohio and Tennessee.
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Advocates argue that this is not only invalidating to transgender people, but also potentially dangerous. The 2015 U.S. Transgender Survey reported almost one-third of transgender individuals who showed an identity document with a name or gender marker that conflicted with their perceived gender were harassed, denied benefits or services, discriminated against or assaulted.
By passing the legislation, Little is also ignoring a 2018 federal court ruling in response to a suit brought by Lambda Legal against the state for refusing to allow transgender people to correct the gender on their birth certificates.
“The court could not have been clearer: this policy was unconstitutional two years ago, and it is still unconstitutional today. Idaho has deliberately set itself on a collision course with the federal courts. It is in open rebellion against the rule of law,” Ingelhart said.
In the decision, Judge Candy Dale said the state was in violation of the Equal Protection Clause as they had failed to provide an avenue for transgender people to amend the sex listed on their birth certificates.
“A rule providing an avenue to obtain a birth certificate with a listed sex that aligns with an individual’s gender identity promotes the health, well-being, and safety of transgender people without impacting the rights of others,” Dale wrote.
The new bill prevents a person from changing the sex assigned to them on their birth certificate short of a notarized affidavit of a correction based on a clerical error or specific medical circumstances, which must be proven through the courts.
A second bill, HB 500, is intended to “ensure that opportunities continue for girls and women competing in athletics,” according to the statement of purpose by bill sponsor Rep. Barbara Ehardt (R) and Sen. Mary Souza (R). The bill cites “inherent differences” between men and women, biological differences that “suggest women’s performances at the high level will never match those of men.” Even after taking puberty blockers and hormonal therapy, the bill claims transgender women still maintain an advantage over cisgender women.
Under the new legislation, a student whose sex is disputed would have to produce a signed physician’s statement indicating their sex based on internal and external reproductive anatomy, levels of testosterone and an analysis of their genetic makeup.
Across the U.S., more than 40 bills were introduced this year targeting transgender youth, reported NBC, with about half of them seeking to ban transgender girls from competing at various levels of girls’ sports. None of these bills have been enacted, and most have died, while others are considered unlikely to pass.
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