Federal Court Weighs Challenges To Two Idaho Laws Targeting Transgender Rights

Jul 23, 2020

Arguments against two new Idaho laws that roll back transgender rights were heard in federal court Wednesday, as LGBTQ groups tried to block their enforcement.

One law bans transgender girls and women from playing on sports teams that align with their gender identity, while another blocks transgender people from changing the sex on their birth certificates.

The state argues that the new trans athlete ban law – the first of its kind in the country – isn’t discriminatory. 

Instead, it said transgender girls and women could play on teams with boys or men. “I understand that that’s not her preferred option, but we haven’t said you can’t play anywhere,” said Scott Danzig, a deputy attorney general.

That’s unacceptable to advocacy groups representing Lindsay Hecox, a transgender woman who hopes to join Boise State University’s cross country team this school year.

“It would be like hanging a sign around her neck that she wasn’t a woman” if she had to join the men’s team, said Elizabeth Preloger, an attorney representing Hecox. The law also only applies to transgender girls and women, something Preloger argues is sex discrimination.

The state also claims that anyone would be allowed to participate in women’s sports as long as they simply had a note from their doctor verifying their gender – with or without an invasive physical exam or expensive genetic testing.

That’s not how the law was proposed at the state legislature earlier this year, where lawmakers made it clear they wanted to ban trans girls and women from playing for those respective teams.

Lawyers from pro-LGBTQ organizations who brought the lawsuit, like the ACLU, said they’re skeptical about that explanation. If that’s the case, they said they’d be OK with the law remaining in effect for now, as long as there was a court order saying it couldn’t be enforced if a trans athlete had the required note.

In the meantime, the state wants the lawsuit dismissed, while the plaintiffs want the law blocked. Idaho District Court Judge David Nye says he’ll try to rule on these issues by August 10.

In a separate virtual hearing Wednesday afternoon regarding the birth certificate law, the state reiterated arguments it’s made in the past: the court cannot extend an injunction ordered by a judge two years ago that blocks automatic bans on birth certificate changes without considering a new case.

Lambda Legal, an LGBTQ advocacy group, sued Idaho in 2017 over a similar policy and won. Idaho District Court Judge Candy Dale issued a permanent order in 2018 forcing the state to allow transgender residents to somehow alter the sex listed on their birth certificates.

Lambda Legal said this new law is still a categorical ban that violates Dale’s injunction and should be squelched.

The state claims that there is a way for someone to change the gender marker on a birth certificate, though, but only if it matches their sex assigned at birth.

By definition, that person would not be transgender.

The state also said Dale can’t extend her injunction to include this new law until it’s been found unconstitutional in a separate case.

Dale said she’ll make a decision in the case in the near future.