Anti-transgender bills headed to Idaho governor’s desk. Will he sign or veto?

Two anti-transgender bills are headed to the governor’s desk for his consideration.

If Idaho Gov. Brad Little decides to sign them into law, the legislation’s next likely stop is the court for a lengthy and expensive legal battle.

An Idaho Attorney General’s Office’s analysis of the bills, which was provided to lawmakers, found them possibly unconstitutional and open to legal challenge.

Should the transgender-related bills face a legal challenge, the attorney general’s office, as the state’s legal arm, will have to defend them in court.

Idaho has a constitutional defense fund it uses to pay legal costs for the state to file lawsuits or defend Idaho from lawsuits.

The taxpayer-funded account was created in 1995. It hasn’t funded a winning case since 1996.

The state has spent $3.2 million through the fund since it was created. The fund’s current balance is $1.3 million.

In its legal analysis of the transgender birth certificate bill, which was passed in defiance of a federal court order, the attorney general’s office indicated it could cost up to $1 million to defend that bill in court.

Two Idaho transgender bills

The two transgender-related bills passed the Republican-dominated Senate and House on mostly party-line votes.

House bill 500, sponsored by Rep. Barbara Ehardt, R-Idaho Falls, would ban transgender girls and women from participating in sports that align with their gender identity.

The legislation, dubbed the Fairness in Women’s Sports Act, would apply to all sports teams sponsored by public schools, colleges and universities. A girls’ or women’s team would not be open to students who were born as male, even if they identify as female. The bill does not apply to transgender students wanting to participate in boys’ or men’s sports.

House Bill 509, sponsored by Rep. Julianne Young, R-Blackfoot, makes it illegal for transgender people to change gender markers on their Idaho birth certificates. Under the bill, a birth certificate can be amended only within one year of its filing. After one year, it can be changed only via a court challenge “on the basis of fraud, duress, or material mistake of fact.”

Both bills went through lengthy committee hearings during which committee members heard overwhelming public opposition to the legislation.

In addition to public opposition, the transgender sports bill also received legal opposition, with five former Idaho attorneys general — Tony Park 1971-1975; Wayne Kidwell 1975-1979; David Leroy 1979-1983; Jim Jones 1983-1991; and Al Lance 1995-2003 — jointly sending a letter to Little urging him to, “give great weight to the advice of our successor, incumbent Idaho Attorney General Lawrence Wasden.”

“The Attorney General has opined that the legislation contains a number of legal infirmities, making it subject to invalidation in federal court proceedings. The more serious concern is apparent conflict with the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, but other provisions of federal law are implicated,” the former attorneys general stated.

The letter concludes, “We urge that you exercise your veto on House Bill 500 to keep a legally infirm statute off of the books and to save the State from having to pay out substantial legal fees to those who take it to court. The Attorney General has provided sound advice and fair warning. Please heed it.”

Birth certificate bill passes in defiance of court order

The birth certificate bill was passed in defiance of a federal court order.

U.S. District Court Magistrate Judge Candy W. Dale ruled in March 2018 that Idaho officials can no longer “automatically and categorically” reject transgender individuals’ applications to change the sex listed on their birth certificates.

Dale ruled in favor of two transgender Idaho women who claimed that the Idaho Department of Health and Welfare’s policy of automatic rejection violated their constitutional rights under the Fourteenth Amendment.

Additionally, some of Idaho’s largest companies have called on the Legislature to support the state’s diverse communities and reject divisive legislation.

“Passage of these bills could hurt our ability to attract and retain top talent to Idaho, and it could damage Idaho’s ability to attract new businesses and create new jobs,” states a March 2 letter jointly signed by Chobani, Clif Bar, HP and Micron to the Senate State Affairs Committee.

“With respect, we ask you to support all of Idaho’s diverse communities and reject these measures,” concludes the letter.

In a separate letter sent March 3 to Senate and House leaders from Mark Peters, Idaho National Laboratory director and Battelle Energy president, he states he is “hearing concerns within INL and throughout our community about the substance and tone of discussions taking place this legislative session and how those negatively impact the way Idaho is perceived outside our borders.”

Three options

The governor has three options for every bill passed through the House and Senate and sent to him for consideration: sign it into law, allow it to become law without his approval by not signing it or veto it.

The governor has five days, excluding Sundays, to take action on a bill once he receives it.

Little should officially receive the two transgender bills Wednesday or Thursday.

Little has not publicly commented on either bill, per his policy not to comment on specific pending bills.

During a Feb. 19 event with Idaho Press Club members, Little was asked about the flurry of legislation that would impact Idaho’s LGBTQ community and transgender girls in particular.

Little said many of the bills seem to be based on things that have happened in other states, but may not be relevant to Idaho yet.

“I don’t think we ought to be sending signals that we’re intolerant in Idaho,” Little said. “That’s my personal position.”

This story was originally published March 18, 2020 at 11:46 AM.