Judge: Idaho Still Cannot Automatically Bar Transgender People Changing Birth Certificates

Jun 1, 2020

A federal judge says her ruling from two years ago barring the automatic denial of a transgender person wanting to change their birth certificate still stands.

That’s despite a new law slated to go into effect July 1 that gives transgender people no opportunity to have their birth certificate accurately reflect their gender identity.

“…the plain language and objective of the Order and Judgment entered in this case permanently enjoin [the Idaho Department of Health and Welfare] from infringing on the constitutional rights of transgender individuals…” Judge Candy Dale wrote in an order Monday.

“Like obeying speed limits and paying your taxes, Idaho state officials are not exempt from the duty to follow a court order,” said Peter Renn, an attorney for Lambda Legal. The legal advocacy group filed the original lawsuit three years ago.

The only way to change a birth certificate, under the new law, is to prove to a court that it was incorrectly recorded due to “fraud, duress or material mistake of fact.”

It  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.

“It is not a categorical ban,” Deputy Attorney General Steven Olsen argued in court last month.

Olsen also said the injunction only applies to a former Idaho Department of Health and Welfare policy that Dale ruled unconstitutional in 2018 -- and that the current rule related to that decision would no longer exist once House Bill 509 is implemented next month.

“…the Court finds both arguments are unavailing in light of the unequivocal language and objective of the Injunction,” Dale wrote.

“HB 509 does not absolve IDHW from accepting, considering, and processing applications from individuals, transgender or otherwise, seeking to change the sex listed on their birth certificate to match their gender identity. To conclude otherwise invites ‘experimentation with disobedience of the law.’” 

But Dale declined to rule on whether implementing the law would violate the terms of her permanent injunction.

“While serious and formidable questions exist over the constitutionality of HB 509, whether HB 509 can pass constitutional muster is not yet before the Court and not decided here,” she wrote.

The bill passed by veto-proof majorities in the Idaho House and Senate before Gov. Brad Little signed it into law.

It was one of three proposals aimed at rolling back transgender rights -- two of which are set to take effect next month. The other law, which is also being litigated in federal court, would ban transgender girls and women from playing on sports teams that align with their gender identity.

Opinions from the Idaho Attorney General’s Office said both that law and the one concerning birth certificates were constitutionally problematic. 

A potential legal fight surrounding birth certificates would likely be unsuccessful, Assistant Chief Deputy Attorney General Brian Kane wrote, and could cost taxpayers more than $1 million to defend in court.

A spokesman for the attorney general said the office is currently reviewing the ruling, but declined to say whether it would appeal. 

A spokeswoman for the state department of health and welfare also didn’t immediately say how the agency would implement the new law to avoid violating Judge Dale’s order.

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