Idaho AG’s office questions transgender athlete bill

By Lyndsie Kiebert
Reader Staff

A bill that would ban transgender women from participating on female public school sports teams in Idaho passed the House Feb. 26 with a 52-17-1 vote, marking the latest step forward for a piece of legislation that the Idaho Office of the Attorney General warned is likely unconstitutional.

House Bill 500 would require sports teams at all public Idaho institutions — including high schools and members of the NCAA, NAIA or NJCCA — be designated as male, female or coed “based on biological sex.” If there is a dispute regarding to which team a student belongs, that student could establish their sex with a signed physician’s note detailing “internal and external reproductive anatomy,” testosterone levels and genetic makeup.

Bill sponsor Rep. Barbara Ehardt, R-Idaho Falls, told the Idaho Falls Post Register that she doesn’t see HB 500 as anti-trans, but instead an effort to keep sports fair for cisgendered — or non-transgender — females.

While sponsors refer to the bill as the “Fairness in Women’s Sports Act,” the Idaho Joint Democratic Caucus has taken to referring to it as “Child Genital Exploration Legislation.”

Idaho Attorney General Assistant Chief Deputy Brian Kane released an opinion Feb. 25 on the draft bill in response to a request from Rep. Ilana Rubel, D-Boise. Kane said he had “concerns about the defensibility of the proposed legislation.”

Kane detailed several points of weakness in the measure, including the fact that it never addresses whether transgender females — should they be excluded from women’s sports — would have an opportunity to participate on men’s or coed sports teams. He also wrote that the draft bill failed to define “biological sex” or who is qualified to “dispute” that student’s sex, leaving student athletes open to invasive examinations on the grounds that anyone — even a peer — could dispute their gender.

Kane added that requiring gender identification for only some athletes, not all, is “constitutionally problematic,” and that methods for establishing the athlete’s sex — including analysis of the student’s genitalia — do not match up with the legislative findings, which list only testosterone levels as linked to athletic ability. 

Kane noted that it is unclear whether the draft of HB 500 would implicate Title IX, or whether the Legislature’s interests in ensuring fair competition would justify the invasion of privacy required to establish an athlete’s gender. Further, he said that attempting to regulate athletic participation at the national level through higher education institutions could raise concerns under the Commerce Clause.

The ACLU of Idaho has been a vocal opponent of the legislation, characterizing it as discriminatory and “a lawsuit waiting to happen.”

“Elite athletes often do have a competitive advantage as a result of physical characteristics, like above-average heart or lung capacity. Transgender people do not gain an inherenet competitive advantage in sports by virtue of transition,” the organization stated in a Feb. 20 press release. “This is another example of the Idaho Legislature attempting to solve problems that do not exist, and are going to result in more expensive lawsuits for the state to defend.”

Several legislators have also come out opposed to the bill, including Rep. Brooke Green, D-Boise.

“This type of legislation is dangerous,” Green said Feb. 20. “Transgender people are already at a higher risk of suicide than their peers and [to] prevent them from participating in the sport of their identified gender puts them at further risk. The [Legislature] has an obligation to keep the safety and well-being of all Idahoans at the forefront of our decision making, and House Bill 500 does not honor that commitment.”

When asked about the bill at a Feb. 19 press event, the Lewiston Tribune reports that Governor Brad Little said he doesn’t “think we ought to be sending signals that we’re intolerant in Idaho,” and that the legislation has “quite a ways to go” before reaching his desk.

With passage in the House, the bill is headed for a hearing in the Senate State Affairs Committee, though when that will happen is up to the chairman.