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Attorneys says transgender bills signed into Idaho law are unconstitutional

One bill stops anyone from changing the sex marker on their birth certificate. The other prevents a transgender woman from playing on a women's sports team.

BOISE, Idaho — Gov. Brad Little signed two bills into law Monday night that have to do with Idaho's transgender population.

The first one, House Bill 500, is a transgender athlete bill, and the second is House Bill 509.

That's the bill that would stop anyone from changing the sex marker on their birth certificate, in essence not allowing transgender people to match their birth certificate with the gender with which they identify.

It's a policy that has already been proven unconstitutional.

In March of 2018, a federal court ruled Idaho was violating the Equal Protection Clause of the 14th Amendment by stopping two transgender women from changing their birth certificate.

However, the Idaho’s Legislature and governor went ahead anyway, flying in the face of a federal judge's decision.

And it will likely be a costly flight when someone decides to challenge it.

It doesn't seem to hold any ground against an already in place injunction.

That's according to Kara Ingelhart with Lambda Legal, the country's leading law firm that represents the LGBTQ community.

She was also co-counsel in the lawsuit against Idaho more than two years ago.

"Their birth certificates didn't match all of their other identity documents able to get corrected, and in some cases, having an inaccurate birth certificate can make it so that you can't get other identity documents that match who you are, because it's an essential foundational document that's used to create new ones, so once we learned about this, we did our research and understood that this was a constitutional violation. We filed a federal lawsuit in the District of Idaho."

"The judge in our case actually noted that there was a very simple procedure for changing the paternity on somebody's birth certificate, yet there was a total ban on correcting a gender marker."

"When a law or policy treats two similarly situated groups differently, that can run in the face of the Constitution. Here, because non-transgender people, or cisgender people could access birth certificates that match their identity, but transgender people didn't have access to birth certificates that matched their identity, that would be a violation of the Equal Protection Clause of the Constitution, so those two similarly situated groups didn't have access to the same things, so a trans woman, could not have the right birth certificate, but a cis woman could, and that's why it was unconstitutional."

"Since we won the permanent injunction back in 2018, there's been a rule in place that allows transfolks to get an accurate birth certificate since I think April of 2018. So since that time, there have been multiple efforts to roll back the current good temporary rule, and to try and roll back our win. And this is just the latest example and unfortunately, it's pushed the furthest so far. So we have actively been following this legislation since it was introduced. 

Lambda Legal has provided testimony against it, we have explained to the Legislature as well as to the governor that we have been voicing that concern, along with many of our allies, including the Idaho Attorney General's Office themselves, who wrote a letter to the governor explaining that this law could incur costs of towards a million dollars in legal fees because of the violation of the court order."

The birth certificate bill is slated to go into effect July first. And it still can.

Ingelhart says the federal court ruling applies only to Idaho Department of Health and Welfare workers.

Should anyone in that office decide to follow the law Idaho has just passed, and deny someone who wants to change the gender on their birth certificate, they personally would be held in contempt of court.

Should be interesting to see how that plays out over the next several months.

RELATED: Idaho governor signs into law anti-transgender legislation

RELATED: Transgender athlete bill heads to Idaho Senate for possible amendments

Meanwhile, House Bill 500, the transgender athlete bill, is also expected to play out in a court of law.

Gov. Little also signed that one into law. That would prevent a transgender woman from playing on a women's team.

Idaho became the first state ever to pass such a law.

Transgender athletes is something that's never been considered yet in idaho. And there are already strict rules in place if someone should consider doing that.

But that didn't stop Rep. Barbara Ehardt's bill from making it into law despite Idaho's attorney general sending a letter to Idaho's House of Representatives questioning its legality.

And five former attorneys general writing a letter to Gov. Little saying the same thing.

It read in part...

"The Attorney General has raised serious concerns about the legal viability and timing of this legislation, which will have a difficult time withstanding a court challenge. Our State has been in this position a number of times during our respective tenures as Attorney General and rather more so during the incumbent's tenure.

He has frequently cautioned against passage of legally suspect legislation and has a good record of being correct. Disregarding his sound advice has been costly for our State. It could well be with regard to House Bill 500."

Boise attorney David Leroy was one of those former AG's who wrote this letter. He told us why he and the others did that and what he thinks will happen next.

"We wanted to try and encourage the governor to veto the bill because it's good public policy when the attorney general predicts it's an unfortunate outcome for the taxpayers and the federal courts that the bill was challenged. That's the policy and that opinion should be listened to more often than not."

"What did you see that raised alarms for you?" asked KTVB. 

"Number one, this is an area of constitutional law where the outcomes are very unsettled. Secondly, a case on transgender status, and whether it's protected under the Constitution was argued back in October of this year and a decision is likely to come out very soon. Third of course, we did not prefer the public policy, embraced by this statute."

"So how do you feel knowing that Governor Little just ignored your opinion and your letter?" asked KTVB.

"Well, it's entirely appropriate to ignore former attorney generals' opinions, we hope for the taxpayers that the outcome will either not be challenged or it won't be a million dollar loss, but we understand the governor and the Legislature have the right to dictate policy.  As former attorney generals we have the right to hold opinions. We hope this won't be an unfortunate exercise for the taxpayer, but it very well could be." 

"What's Idaho's track record when it comes to bills like this and lawsuits in general?" asked KTVB. 

"We've lost some big ones. The taxpayers are at a gross disadvantage to the ACLU and private attorneys. And when you can see these kinds of things coming, it's best, as we suggested, in our opinion to the governor, to avoid the disaster by deferring the legislation, as the Legislature could have, at least until the Supreme Court outcome or vetoing the bill as the governor could have, had he chosen to do so. These things can be very problematic for public policy and they can be very difficult for taxpayers, especially in a time of downturn." 

"Yeah, it sounds like it's going to be an expensive fight if there is one?" asked KTVB.

"Well, we do have established in Idaho a constitutional defense fund, annually it gets about a million dollars in it. But I'd prefer to keep it in there rather than spend it on private counsel who winning cases against the state of Idaho. Our attorney general's opinion should be largely regarded vigorously when he predicts a disastrous outcome." 

There is a case being considered in the Supreme Court right now that is challenging the 1964 Civil Rights Act, which bans discrimination based on sex. And that could have an affect on how House Bill 500 plays out in Idaho.

For the time being, expect court challenges.

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