Idaho Passes Two Anti-Transgender Bills in One Week

"You cannot legislate people out of existence."

Idaho could become the first state in 2020 to sign an anti-trans bill into law after its legislature advanced two bills targeting the community within hours of each other.

On Wednesday, Republicans in the Idaho House of Representatives voted overwhelmingly in favor of House Bill 500, which would force transgender student athletes to play on sports teams that correspond with the sex they were assigned at birth, rather than their gender identity. Also known as the Fairness in Women’s Sports Act, bill sponsor state Rep. Barbara Ehardt claimed it is intended to preserve “opportunities for girls and women” in student athletics.

“Letting boys and men compete against girls and women [takes away] those opportunities and shatters our dreams,” Ehardt told fellow lawmakers during debate.

After the Idaho House voted 52-17 to send HB 500 to the Senate, lawmakers passed a second piece of anti-trans legislation the following day: HB 509, which would prevent transgender people from correcting their birth certificates to match their lived gender. If passed, the bill would stipulate that an individual’s records can only be corrected within one year of their birth or through a legal challenge “on the basis of fraud, duress, or material mistake of fact.”

State Rep. Julianne Young claimed a “biological definition of sex” is necessary to ensure the state is able to keep accurate records for vital statistics and that schools are able to maintain gender-segregated bathrooms. “Biological sex is a real scientific fact, and it never goes away,” she told the Associated Press. “No amount of surgery, hormones or other procedures can change a person’s biological sex.”

HB 500 and HB 509 are headed to the Idaho Senate State Affairs Committee, where they could receive a hearing as soon as next week. The bills stand a strong chance at passage. Should they make it to the Senate floor, Republicans command a supermajority in the chambers, controlling 80% of seats.

LGBTQ advocates in Idaho emphatically oppose the legislation. Chelsea Gaona-Lincoln, chair of the anti-discrimination lobby group Add the Words, says the bills are “discriminatory and very harmful to members of our community.”

“In a state that claims to pride itself on personal freedom and personal responsibility, a very important component to that is allowing people to thrive and live their authentic lives,” Gaona-Lincoln tells NewNowNext. “These bills that are specifically targeting our trans friends, family, and neighbors are doing the exact opposite of that. You cannot legislate people out of existence, and we feel these bills are trying to work with each other to orchestrate that exact scenario.”

Idaho Gov. Brad Little, who is also a Republican, signaled he is likely to veto HB 500 and HB 509, recently telling local press he is “not a big discrimination guy.” But should Little choose to sign either bill into law, they are likely to be met with an immediate legal challenge.

Advocates say HB 509, for instance, would directly violate a March 2018 court order allowing trans Idahoans to correct their birth certificates for the first time. Prior to that ruling, Idaho was one of three U.S. states that did not allow transgender people to change the gender listed on their birth documents, and U.S. District Court Magistrate Judge Candy W. Dale ruled that the state’s decision to “automatically and categorically” deny those requests was unconstitutional.

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WASHINGTON, DC - DECEMBER 16: U.S. President Donald Trump (C) listens as Governor of Idaho Brad Little (2 from R) speaks during a meeting about the Governors Initiative on Regulatory Innovation in the Cabinet Room of the White House on December 16, 2019 in Washington, DC. President Trump encouraged further action to reduce unnecessary regulations that the administration says are holding back American businesses. (Photo by Drew Angerer/Getty Images)

Idaho Gov. Brad Little (second from right) in conversation with President Donald Trump last December.

Kara Inglehart, a staff attorney for Lambda Legal, says the passage of HB 509 could “subject state officials to being held in contempt of court and expose taxpayers to footing the bill for significant financial sanctions, all while putting transgender people back in harm’s way for harassment and even violence.”

“Transgender people, like everyone else, need accurate identity documents to move about daily life,” Inglehart tells NewNowNext. “If your identity documents match your gender expression, you may not think twice about how often you use them or how essential they are. Birth certificates are the fundamental identity document—you use them to obtain other forms of identity documents like driver’s licenses or passports.”

The passage of HB 509 could, thus, prevent transgender people from receiving any form of documentation matching their gender identity, as Inglehart says birth certificates “are often used as proof of identity for obtaining state IDs and driver’s licenses.”

According to the ACLU of Idaho, HB 500 would also place potentially unconstitutional burdens on transgender people. While the bill does not define “biological sex,” it claims that a student’s eligibility to participate in school athletics could be determined by an “an analysis of the student's genetic makeup” conducted by a medical professional. If passed, the legislation could then open up both trans and cisgender students to being subjected to invasive DNA testing.

“It certainly raises some privacy concerns in soliciting private medical testing for any young person whose gender is questioned, whether that be a cisgender girl or a transgender girl, based on how she presents or is perceived by others,” Kathy Griesmyer, policy director for ACLU of Idaho, tells NewNowNext, adding that “invasive medical exams or testing” would violate students’ “basic civil right to privacy.”

The Idaho Attorney General’s Office agreed that HB 500 could open up a legal can of worms for the state. In a February 25 analysis of the bill, Assistant Chief Deputy Brian Kane cited concerns it violates the Equal Protection Clause under the 14th Amendment and would result in “disparate treatment” of trans and cisgender students.

“The draft legislation requires some, but not all, student athletes to ‘establish’ their sex,” Kane said. “[...] It is much more likely that a transgender or intersex athlete could be subject to harassment and invasive procedures to establish their sex than others.”

But as Idaho lawmakers and government officials weigh the implications of HB 500 and HB 509, the local LGBTQ community is working day and night to prevent these bills from becoming law. On Friday, more than 100 students gathered in the rotunda of the Idaho State Capitol Building with signs reading “Stop the Slate of Hate” and “Represent All of Us.” Over the weekend, volunteers will be writing emails and making calls to their state Senators to urge them to vote against the legislation.

Gaona-Lincoln says the organizing effort is “doing full court press [in anticipation] that these could very well get to the governor’s desk.” There is reason to hope these efforts will be successful, too. Earlier this week, lawmakers killed a bill that would have banned trans youth from receiving medical care that affirms their gender identity.

Advocates are urging Idaho lawmakers to cast their votes on the right side of history once more. “This bill is such a gruesome overstep and overreach of government, putting people in the position to have physical examinations of their genitalia,” Gaona-Lincoln adds. “It is so inappropriate. We cannot even believe the obsession representatives are having with our trans youth and our trans friends right now.”

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