Idaho To Federal Judge: Let New Transgender Birth Certificate Ban Go Into Effect

May 19, 2020

The state of Idaho argues a new law banning transgender people from changing the sex on their birth certificates does not violate a federal court order that barred a similar state policy in 2018.

The state was back before Idaho Federal District Court Judge Candy Dale Tuesday who, two years ago, found Idaho’s policy of outright banning transgender people from changing their birth certificates unconstitutional.

This time, it’s defending a new law passed by the legislature two months ago that allows few opportunities to amend a birth certificate. None of those apply to trans people wanting the document to match their gender identity. 

The new law defines someone’s sex solely by their chromosomes and reproductive organs. Transgender people don’t necessarily base their gender identity on those two characteristics alone.

Deputy Attorney General Steven Olsen, whose own office wrote in February that the state would likely lose any court challenge related to this law and cost taxpayers upwards of $1 million to defend, said Tuesday that the legislation needed to go into effect before any harm could be proven.

Without a new lawsuit, Olsen said the court was being asked to “speculate” as to whether the new law would actually block a transgender person from changing their birth certificate.

If this legislation takes effect July 1, a transgender person would have to get a court order proving that the sex on their original birth certificate was recorded incorrectly due to “fraud, duress or material mistake of fact.”

“It is not a categorical ban,” Olsen said.

“In HB 509 there isn’t a single use of the word transgender or transgender individual or change or the sex indicator to match one’s gender identity,” Judge Dale pointed out shortly thereafter.

Still, Olsen said this new law violated neither the “the letter or the spirit” of Dale’s previous ruling to permanently block such blanket bans.

Lamda Legal, an LGBTQ advocacy group that successfully sued the state three years ago over this issue, said the court doesn’t have to wait for “blood to be spilled” before acting.

“There is no difference” between the unconstitutional state policy that was overturned and one that will be implemented under this law, said Peter Renn, an attorney for the group.

You can’t “pretend the previous lawsuit never happened” by passing a new law and giving it a different bill number, Renn said.

Dale said she’d try to make a decision on whether or not her prior ruling applies to this law by the beginning of June.

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