By Ben Olson
Gov. Brad Little signed two bills into law March 29 that opponents have argued could lead to legal challenges.
Little signed HB 500 and HB 509 after they passed the Idaho House and Senate during 2020 legislative session, making Idaho the first among more than 40 states that have introduced such legislation this year to enact them.
HB 500 will require high school girls to prove their gender to participate in high school sports through a genital exam, a testosterone level test, or a DNA exam. HB 509 will ban all Idahoans from changing the gender marker on their birth certificate.
The ACLU of Idaho immediately issued a statement condemning the decision.
“The ACLU of Idaho condemns Governor Brad Little’s decision to sign discriminatory, unconstitutional, and deeply hurtful anti-transgender bills into law,” the ACLU wrote to the Reader. “Leaders from the business, faith, medical, education and athletics communities will not forget this decision or what it says about the governor’s priorities during a global pandemic. The ACLU will see the governor in court.”
Little’s signature comes after Idaho Attorney General Assistant Chief Deputy Brian Kane released an opinion Feb. 25 outlining “concerns about the defensibility of the proposed legislation” for HB 500.
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 or parent of another student athlete – 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 testosteronse levels as linked to athletic ability.
Proponents of the bill argue that the law was needed because transgender female athletes have physical advantages over their peers.
Little’s signature on HB 509 ignores a 2018 federal court order that a past law barring transgender people from making the birth certificate changes violated the Equal Protection Clause of the U.S. Constitution.
“There’s an injunction that already absolutely forbids this policy, and the government can’t enforce this law without violating a court order,” said Peter Renn of Lambda Legal, the law firm that represented two transgender women whose lawsuit led to the 2018 court ruling.
Renn said the court could impose fines and even hold top officials at the Idaho Department of Health and Welfare responsible should the court order be violated.
Supporters of the legislation said the federal court was wrong, and the law is needed so Idaho has accurate birth records.
“Idaho’s governor can no longer say he’s ‘not a discrimination guy,’” said Jennifer Martinez, campaign manager at ACLU of Idaho. “His actions prove otherwise. Each of these bills do nothing to enhance our communities, but rather they expressly ‘other’ transgender people for different ‘separate but equal’ treatment, which is the very definition of discrimination. That is why these bills will not hold up in the inevitable court challenge.”
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