Idaho Republican Governor Brad Little on March 30 unleashed a broad attack on transgender and non-binary residents when he signed a pair of unprecedented bills into law that effectively banned trans girls and women from playing sports and barred individuals from changing the gender marker on their birth certificate.
The sports bill that cleared the State Senate on March 16 states that “athletic teams or sports designated for females, women, or girls shall not be open to students of the male sex.” It includes shocking provisions, including allowing individuals to dispute the gender of a student-athlete. Such a dispute would then trigger a review process that entails subjecting youth to invasive testing to confirm their gender based on “internal and external reproductive anatomy,” their “normal endogenously produced levels of testosterone,” or “an analysis of the student’s genetic makeup.”
An example of the deeply disturbing worldview of some conservative lawmakers in the state was on display during earlier stages of the legislation’s development when Republicans tried to require that all three testing options be deemed necessary to confirm a student’s gender. Notably, the very nature of confirming a student’s gender is rife with inconclusive criteria and disregards the scientific reality of gender fluidity.
Meanwhile, the legislation banning trans people from altering birth certificates contained remarkably bizarre language that went to great lengths to justify outdated perceptions of gender and sex.
“The equal protection clause of the fourteenth amendment to the United States constitution prohibits purposeful discrimination, not facially neutral laws of general applicability, such as a biology-based definition of sex that has been consistently applied since our nation’s founding;” the bill states.
Then, without citing any evidence, the bill appears to suggest that altering birth certificates to reflect a person’s true identity could actually put the safety of society at risk.
“Identification of biological sex on a birth certificate impacts the health and safety of all individuals,” the legislation notes. “For example, the society for evidence based gender medicine has declared that the conflation of sex and gender in health care is alarming, subjects hundreds of thousands of individuals to the risk of unintended medical harm, and will greatly impede medical research.”
While it is not clear who was responsible for crafting the specific language in the bill, ACLU of Idaho policy director Kathy Griesmyer told Gay City News in March that groups lobbying lawmakers included the Madison Liberty Institute, a research organization dedicated to promoting “the founding principles of the American Republic, free-market solutions, and ‘secure the blessings of liberty to ourselves and posterity.’” That mission’s reference to the “founding principles of the American Republic” is unmistakably similar to the bill’s language tying together the “biology-based definition of sex” and “our nation’s founding.”
Other groups that were lobbying conservative lawmakers in the state included the Catholic Church and, unsurprisingly, the anti-LGBTQ legal group Alliance Defending Freedom, Griesmyer said.
The bills, which were the subject of intense criticism and aggressive resistance by civil rights groups, were resting on the governor’s desk as the coronavirus pandemic blanketed the nation and the world. Despite the crisis, Little made his priorities clear when he signed the bills just weeks after he said on the record that he was “not a big discrimination guy.”
The birth certificate law represents a setback just two years after Lambda Legal filed a lawsuit in 2017 arguing that preventing trans people in the state from receiving accurate birth certificates amounts to discrimination and violates the US Constitution. In March of 2018, the US District Court for the District of Idaho issued a permanent injunction against state officials and ruled that such a restrictive birth certificate policy was unconstitutional and discriminated against trans people. In accordance with the judge’s order, state officials were ordered to allow trans people born in the state to correct the gender markers on their birth certificates.
Civil rights groups are vowing to fight back, noting that the birth certificate bill, in particular, is clearly at odds with the 2018 federal court injunction.
“The ACLU of Idaho condemns Governor Brad Little’s decision to sign discriminatory, unconstitutional, and deeply hurtful anti-transgender bills into law,” the ACLU of Idaho said in a written statement. “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. We encourage all Idahoans to email, call, and tweet Gov. Little to express outrage and disappointment at wasting precious taxpayer resources on blatantly anti-transgender bills at a time when we should be coming together for the health and wellbeing of our people.”
Lambda Legal officials, recalling their own recent case in the state, also blasted the governor’s decision to sign the bills into law.
“At each step of the legislative process, from this bill’s introduction in the Idaho House, through the Idaho Senate, and on to the governor’s desk, policymakers were fully aware that they were explicitly flouting a binding federal court order,” Lambda Legal Counsel Peter Renn said in a written statement. “And 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.”
