Opponents say they will sue

Gov. Brad Little has signed two local lawmakers’ bills to bar transgender people from changing their birth certificates and to ban transgender girls and women from women’s school sports teams.

The bills which Little signed Monday were among the most controversial of the 2020 legislative session and have brought national attention and press coverage to Idaho. Opponents have said they are unconstitutional and have vowed to sue. Peter Renn, a member of the Lambda Legal team that obtained the 2018 federal court ruling letting transgender Idahoans change their birth certificates, called the birth certificate bill “open rebellion against the rule of law.”

“At each step of the legislative process, from this bill’s introduction in the Idaho House, through the Idaho Senate, and on to the governor’s desk, policymakers were fully aware that they were explicitly flouting a binding federal court order,” he said. “And the court could not have been clearer: this policy was unconstitutional two years ago, and it is still unconstitutional today. Idaho has deliberately set itself on a collision course with the federal courts.”

The Fairness in Women’s Sports Act, sponsored by Rep. Barbara Ehardt, R-Idaho Falls, would ban transgender people who were born male from girls’ and women’s teams. It says disputes over a student’s gender will be resolved by a health care provider “verify(ing) the student’s biological sex as part of a routine physical examination, relying on an examination of a student’s reproductive anatomy, genetic makeup or the levels of testosterone their body produces.” The Idaho Vital Statistics Act, sponsored by Rep. Julianne Young, R-Blackfoot, would forbid most changes to a birth certificate after one year, effectively blocking transgender people from changing the sex on their birth certificates to match their gender identities.

Supporters of Young’s bill say the government has an interest in recording information that accurately reflects the facts at the time of birth, while backers of Ehardt’s say it will protect girls and women from unfair competition. Republican lawmakers have introduced bills similar to Ehardt’s in numerous states this year, although hers is the first such to become law.

“As a former Division I athlete and coach for 15 years, I am grateful to know that Idaho will continue to protect opportunities for girls and women in sports,” Ehardt said in an email. “I know firsthand that we simply cannot compete against the inherent physiological and scientifically proven advantages that boys and men possess, regardless of hormone usage. I have been working on this bill for over 20 months. I know that Governor Little has had over a hundred bills on his desk these past 10 days so I am grateful that he joined with most all Republican legislators in supporting Title IX and protecting opportunities for girls and women in sports.”

Ehardt worked with the Alliance Defending Freedom, an Arizona-based conservative group that is behind a lawsuit in Connecticut to block transgender girls from competing on girls’ high school teams, in crafting the bill. Senate sponsor Mary Souza, R-Coeur d’Alene, has said the group has offered to cover the state’s legal defense fees. Chelsea Mitchell, one of the plaintiffs in the Connecticut case, praised the new Idaho law.

“I have lost four state championships because my state’s policy ignores the physical advantages males have over females in sports and allows males to compete in the girls’ category,” she said. “Four times I was the fastest female in my race, but I didn’t get the gold medal or the state title; the males in my race took that honor. I have watched this happen over and over again in my sport in Connecticut, as so many girls have been impacted.”

Both bills passed after often emotional public hearings where representatives of civil rights groups and members of the transgender community argued unsuccessfully against them. These same groups, as well as major employers such as Micron, Chobani, Clif Bar and HP, had been urging Little to veto the bills and waiting to see if he would — Tuesday was the bill signing deadline for all the legislation on Little’s desk. Republican lawmakers supported the bills almost unanimously, and the House even stayed in session a day longer than the Senate to preserve the ability to override a veto before voting narrowly to adjourn for the year on March 20 and leave the decision in Little’s hands.

The criticism rolled in quickly Monday evening and Tuesday from the bills’ opponents. Some noted that Little’s signing the bills almost coincided with International Transgender Day of Visibility on Tuesday. Others highlighted a comment Little made, when asked about the bills at an Idaho Press Club lunch in February, that he is “not a big discrimination guy.”

“Idaho is much worse off because of (Little’s) failure to lead, and today, we must all come to terms with the fact that Idaho is one of the cruelest states in the country for LGBTQ people, especially transgender people,” said Mistie Tolman, Idaho State Director for Planned Parenthood Votes Northwest and Hawaii. “Governor Little has made a decision that is bad for Idaho communities, bad for Idaho commerce, bad for Idaho’s national image, and will cost taxpayers significantly when this undoubtedly goes to court. We condemn Governor Little’s actions and the actions of dozens of Idaho legislators who are so focused on pleasing their bigoted base instead of doing what is right.”

The Protect Idaho Families Coalition, which consists of the Family Policy Alliance of Idaho, the Roman Catholic Diocese of Boise and the Madison Liberty Institute, thanked Little.

“Biological sex matters and is important to the health and safety of all of us,” said Madison Liberty Institute spokeswoman Amanda Penrod. “When we choose to support accurate vital statistics, we are choosing to support everyone in Idaho, from insurance companies and medical professionals to law enforcement, churches, and sports teams by giving them language to effectively communicate about and enact policy based on biological differences. When facts are changed on birth certificates, then those records would become fraudulent and ‘male’ and ‘female’ become void of meaning.”

The Idaho Attorney General’s office has issued opinions predicting both bills will be challenged in court, and projected the birth certificate bill would likely need to be litigated to the U.S. Supreme Court and could cost more than $1 million to defend. While supporters of the sports bill say it is in the spirit of Title IX, the 1973 federal law banning sex discrimination in school sports, opponents say it does the opposite.

“The bill’s sponsors are claiming this is a way to protect Title IX and women’s sports, (but) current case law around Title IX has very clearly been used to protect transgender people against sex discrimination,” said Kathy Griesmyer, policy director for the American Civil Liberties Union of Idaho.

Griesmyer said the birth certificate bill will present challenges for the state Department of Health and Welfare employees charged with implementing it.

“They’re going to be asked to either comply with state law or violate a court order, and I don’t envy their position,” she said.