Two bills restricting the rights of transgender people in Idaho were sent to Governor Brad Little for signature this week. HB 509 prevents transgender people from changing the sex listed on their birth certificates. HB 500 bans transgender women and girls from competing on female sports teams.
Idaho’s government has been warned that both bills will face lawsuits in federal courts as they violate the Constitution’s equal protection clause. In 2018 the US District Court for the District of Idaho struck down an almost identical law to HB 509. The court held that the prior law unconstitutionally discriminated against transgender people. Idaho did not appeal the ruling. Lambda Legal, the law firm that represented the plaintiffs, issued a press release calling for Little to veto the law on Thursday.
Supporters of HB 509 say it is necessary to ensure the health and safety of Idahoans and for the accuracy of government records. Opponents say the bill flouts a court order and disregards the rule of law, in addition to being inherently discriminatory. Deputy Attorney General Brian Kane outlined a number of concerns and potential issues in a letter sent to the Idaho Legislature. Among other things, he called the law inconsistent with court precedent and said that the bill would face higher scrutiny when reviewed by judges.
Similar concerns have been raised regarding HB 500. Five former Attorneys Generalsfrom Idaho have called for Little to veto the bill, citing the law’s unconstitutionality and the inevitable lengthy and costly legal battles. HB 500 prohibits transgender women and girls from competing on female sports teams sponsored by public schools, colleges or universities. Supporters claim the law will protect the advances gained for female athletes by Title IX, and that transgender women would have advantages over their teammates and opponents. Opponents say the law is discriminatory and would subject female athletes to invasive testing in order to prove their gender. This, they argue, could discourage women from participating in sports.
The law requires proof of the athlete’s gender if it is disputed. Critics worry that athletes could be subjected to humiliating tests solely because someone has a grudge against them. In response to these concerns, supporters of the bill added an amendment that gave any athlete who loses an opportunity, or is forced to prove their gender due to a false claim a cause of action against their accuser. The amendment has not mollified opponents of the bill.
Further, despite what supporters of the bill claim, the issue of whether transgender women would have an advantage due to their inherently higher testosterone levels has not been resolved. The International Olympic Committee permits transgender women who have been on hormone therapy for a year and have testosterone levels under a certain threshold to compete on against other women.