Idaho is facing a pair of lawsuits after its governor signed two of the nation’s harshest anti-transgender bills into law.
On Monday, Republican Gov. Brad Little approved two bills that had been met with widespread opposition. House Bill 500 bans transgender girls from playing on school sports teams in alignment with their gender identity, while House Bill 509 blocks trans people from correcting their birth certificates to match the person they know themselves to be. Forty local and national businesses, including Hewlett-Packard and Verizon, signed onto an open letter opposing the legislation, while Idaho’s own attorney general warned their passage could open up the state to costly litigation.
That is precisely what Idaho can now expect, according to Lambda Legal. Peter Renn, an attorney with the legal advocacy group, said that HB 509 is in direct violation of a 2018 court order which said the state cannot “automatically and categorically” prevent trans people from updating their birth documents.
“We absolutely intend to defend the victory that we obtained for transgender people in court,” Renn told VICE. “HB 509 has, in essence, already been adjudicated as unconstitutional by a court. You don't have to guess about whether or not this law is unconstitutional. You already have a ruling from a federal judge saying that it is, and to nevertheless go forward shows a lot of contempt for the rule of law.”
Kathy Griesmyer, the American Civil Liberties Union of Idaho’s policy director, said her organization is also preparing a legal challenge to HB 500, saying it was “no secret” that the organization “would be willing to sue if it came to that.” In fact, Griesmyer said the ACLU warned Little’s office that a legal battle could cost the state “millions” at a time when states across the country are struggling to effectively allocate resources to fight off the spread of COVID-19, also known as the novel coronavirus.
“We’re in the midst of a health crisis,” Griesmyer told VICE, noting that Little ordered a 1 percent budget cut for all state government agencies. “But he’s willing to risk taxpayer dollars from people who might be losing their jobs, who are stuck at home battling a really severe crisis, to use it to defend blatantly unconstitutional legislation. It just doesn't make sense.”
While these battles are fought in the courts, advocates are concerned that the passage of these laws could be extremely harmful for trans people in Idaho at a time when people are fighting for their daily survival. As the number of deaths from COVID-19 approaches 3,000 in the United States as of Tuesday afternoon, Little issued a statewide lockdown last Wednesday. This decision followed weeks of inaction on the part of government leaders.
Megan Carter, vice chair of the local LGBTQ group Add the Words, said the passage of these bills is especially dangerous because trans people already don’t have statewide protections in areas like health care or any other form of public accommodation.
“For instance, if a trans person were to get sick with COVID-19 and go to a health care provider, they could be turned away and denied service,” Carter told VICE. “There is a lot of fear already in our community and then you add this extra layer of this pandemic.
It really just shows trans folks in Idaho that we're not welcome here. We are not seen as human.”
Little has not released a public statement regarding his reasoning for signing HB 500 and HB 509 into law, but advocates worried their enactment could be a green light for other states looking for an excuse to discriminate against trans people. Of the estimated 60 anti-trans bills under consideration by state legislatures in 2020, 12 are still active. That includes an Alabama bill that would prevent transgender minors from receiving medication or surgery intended to help their bodies align with their gender identity.
Sam Brinton, head of advocacy and government affairs for The Trevor Project, said the Idaho laws could open a “Pandora’s box,” whether it’s signing bills like Alabama’s into law or other anti-trans proposals that could be tabled in subsequent years.
“This could be just the impetus that these other states needed to say, ‘Well, if they can do it in Idaho, we can do it here,’” Brinton told VICE, noting that Idaho’s bills were the first anti-trans bills to be signed into law in 2020. “We are lucky that these were the first and we will continue to fight the rest, but everything bad can come out. Our hope now can only be to keep as much in as possible.”
Others weren’t convinced that additional states would feel the ripple effect of Idaho’s laws, especially given the myriad legal issues they pose. In his analysis of HB 500, Idaho Assistant Chief Deputy Attorney General Brian Kane warned that the law would likely violate the Equal Protection Clause under the 14th Amendment, which forbids the government from singling out particular groups for undue scrutiny, as well as Title IX laws that ban discrimination on the basis of sex.
Kate Oakley, state legislative director and senior counsel at the Human Rights Campaign, added that HB 500 could also be used to target any female student who wishes to play sports in K-12 schools or at the college level. Because the law is extremely vague about the process by which athletes, parents, and coaches can bring forward complaints, she said it could be used to discriminate against any player accused of being “too good” to be a “real” girl. Theat student would then be subject to invasive physical exams and DNA testing to prove their “biological sex.”
Oakley said these kinds of regulations are “outrageous” and “discriminatory” but also predicted they would prove an “outlier.”
“It is despicable that the governor signed these laws, but I suspect that other state legislatures are not going to be that heartened by this choice,” she told VICE. “In the greater context of everything that's going on, the silliness of these and the hurt that they impose without any conceivable benefit, I think that is going to become apparent.”
It remains to be seen—for now—whether other states will follow in the footsteps of Idaho and pass laws limiting the ability of trans people to play school sports, have identity documents that match their gender identity, or participate fully in public life. A 2015 survey from the National Center for Trans Equality found that a third of individuals who presented a birth certificate or ID that didn’t conform to their physical presentation had faced harassment or even violence.
For transgender Idahoans who fear the passage of these laws could lead to greater discrimination in their daily lives, there is a small silver lining. According to Lambda Legal, HB 509 is currently unenforceable because of the aforementioned 2018 federal court ruling. In order to stop trans people from correcting their birth documents, which they have now been able to do for two years, the state of Idaho must petition the court to reverse the existing injunction. The government will have until July 1 to do so, which is when the new law is scheduled to take effect.
Renn said he did not believe the courts would accommodate that request. “If the government wants to enforce this law, they need to get that injunction lifted, and I don't think they will be successful in doing so,” he said. “It is incredibly disappointing that during this time of a global pandemic, Idaho has chosen to take up this fight.”
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