A bill that would bar transgender people from changing the gender marker on their birth certificates would cost taxpayers more than $1 million to defend in court, and a case they’d likely lose, according to the state attorney general’s office.
The six-page opinion from Assistant Chief Deputy Attorney General Brian Kane said the proposal from Rep. Julianne Young (R-Blackfoot) is directly in conflict with a federal court order that found a similar state policy to be unconstitutional in 2018.
You can read the entire opinion here.
“[The bill] appears to try to thread the rapidly shrinking constitutional eye of a needle,” Kane wrote, noting that since the bill treats transgender people differently, it’ll need to clear a high bar to not violate the 14th Amendment.
“This office cannot determine at this point whether that eye can be threaded [with this legislation],” but that it would likely force Idaho to take it all the way to the U.S. Supreme Court.
Such a lengthy and expensive process would cost taxpayers more than $1 million, Kane wrote.
Young has repeatedly tried to assure fellow lawmakers, both during a public hearing for the bill and in debate on the House floor this week, that her bill would hold up in court.
But Kane said the likely strategy to defend it would largely rely on a dissenting U.S. Supreme Court decision written by Justice Neil Gorsuch in a case involving an Arkansas law that blocked same-sex couples from including the names of both spouses on a child’s birth certificate.
Gorsuch argued that Arksansas had “rational reasons” for limiting who can be listed on a birth certificate, like ensuring the government could spot public health trends — all points Young has made in the past.
But Gorsuch was on the losing side in that case. Six of the nine justices overruled him. Because of that, Kane said Idaho would be “unlikely to prevail” if this proposal reached the nation’s highest court.
His opinion also outlines several other problems with the bill. Kane said that the proposal’s definitions of sex – “immutable biological and physiological characteristics” and “generally recognized at birth” – are “vague.”
“If your intent is that only a woman has ovaries, a vagina, a uterus, and breasts, and only a man has testes, a penis, and facial hair, then the legislation should state that,” he wrote.
Democrats have argued for weeks that Young’s bill is unconstitutional and will only end up foisting significant legal fees on the backs of taxpayers.
Lambda Legal, the group who successfully blocked the state’s policy in 2018, joined with lawyers from the ACLU of Idaho in telling legislators earlier this week that this measure could subject state employees to being held in contempt of court.
The bill is currently awaiting consideration in a Senate committee.
This is the second bill that LGBTQ advocates have railed against as an assault on transgender rights that's been found problematic to defend in court. Kane wrote another opinion calling a bill to ban transgender girls and women from competing on sports teams that align with their gender identity "constitutionally problematic" earlier this week.
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