As of Tuesday morning, Idaho Gov. Brad Little had declared a state of emergency in the state over the coronavirus outbreak. Some school districts have closed. But the state legislature hadn’t yet taken action to mitigate the effects of the pandemic.
It has, though, passed two anti-transgender bills.
Monday evening, the state Senate passed a bill banning gender changes on birth certificates issued in the state. The bill had already passed the state House of Representatives and will now head to Little’s desk for either a signature or a veto.
The bill is one of three anti-trans proposals under consideration in the state, including a ban on allowing trans girls to compete in girls’ sports passed Monday and a proposal to make treating trans youth for gender dysphoria a felony that is under consideration in the legislature.
“Boys are boys and girls are girls,” Republican state Sen. Lee Heider said Monday. “No doctor, no judge, no Department of Health and Welfare is going to change that reality.”
Five former Idaho state attorneys general recommended that the governor veto both the birth certificate bill and the trans girl sports ban to avoid lengthy and costly legal battles in federal courts — particularly given that a measure similar to the new birth certificate bill has already been declared unconstitutional.
In 2018, a federal court ruled that Idaho’s then-ban on birth certificate gender changes was unconstitutional, ordering that the state create a process to do so containing no “onerous burdens.” The state Department of Health and Welfare soon adopted rules to facilitate that process.
The new bill attempts to skirt the federal ruling by establishing a “biological basis” for sex markers on birth certificates, citing a government need for accurate record-keeping. But the courts aren’t likely to accept this distinction. Because the state allows changes for other data fields on birth certificates, the court is likely to take a close look at equal protection implications of the potential new law because of the way it singles out transgender people but not others.
Lambda Legal, the LGBTQ legal group that won its lawsuit challenging the original ban, has promised to sue the state again over the bill — and the state attorney general’s office has made it clear it isn’t confident it could successfully defend the new legislation.
The bill “appears to try to thread the rapidly shrinking constitutional eye of a needle,” Deputy Attorney General Brian Kane recently wrote in an opinion. “This office cannot determine at this point whether that eye can be threaded with [the bill], but notes that based on the existent case law it will likely require the State to litigate this matter to the United States Supreme Court.”
Beyond the fact that signing the bill would task the attorney general’s office with fighting a case it feels it might lose, legal experts estimate it could cost the state $1 million to defend the bill if Little signs it into law. That’s a cost Republican lawmakers in the state appear ready to pay. “I think we all understand what the costs and what the risks are in making the decision to go forward,” said Republican state Sen. Jim Rice.
It remains to be seen whether Idaho Republicans’ gamble will pay off, or if voters will look back on these last few days of the state legislative calendar as a missed opportunity to mitigate a pandemic in the state.
Fighting the culture war in the age of coronavirus
The Idaho anti-trans bills are part of a larger conservative effort to use trans people and their needs as an electoral wedge issue. Their assumption is that working-class voters will turn on any Democrats defending trans people at the ballot box this fall — and it is a strategy that has paid dividends for Republicans in the past, albeit one that has grown much less effective over time.
For instance, in 2016 and again in 2018, conservative-led states attempted to enact discriminatory “bathroom bills,” assuming it would turn into a winning issue, but as of today, not a single state has a bathroom bill on the books, and efforts to ban trans athletes and puberty blockers for trans kids have failed everywhere outside of Idaho.
Despite this, anti-trans sentiment appears to still be strong among certain conservatives. Articles have racked up views on conservative news sites for months, and it appears Republican legislators in multiple states are trying to ride the wave of this sentiment through legislative action, such as by focusing on banning puberty blockers for trans kids, as I explained in late January:
Eight state legislatures —including Missouri, Florida, Illinois, Oklahoma, Colorado, South Carolina, Kentucky, and South Dakota — have already introduced bills this year that would criminally punish doctors who follow best practices for treating adolescents with gender dysphoria. In South Dakota, for example, doctors who prescribe puberty blockers or cross-sex hormones could face a $2,000 fine and a year in prison under the proposed law. South Dakota’s version of the bill was even prioritized and became the first bill of the decade to pass out of committee. On Wednesday, it passed the House in a 46-23 vote.
Lawmakers in Texas, Utah, and Georgia have promised to introduce similar bills once their legislative sessions begin. And while a New Hampshire bill wouldn’t criminalize doctors, it would classify gender-affirming care for minors as child abuse.
This trend has long been evident in Idaho, which was one of the last states to have a birth certificate gender change ban on its books before it was overturned in court two years ago.
While a state passing legislation that would seem to be unconstitutional is worrying in the best of times, Idaho lawmakers’ focus on this issue — again, it has passed two anti-trans bills in two days — amid the coronavirus pandemic is a matter of concern.
Although the state only has a handful of coronavirus cases so far, Idahoans are still allowed to congregate in bars and restaurants without restrictions, something at odds with guidelines from both the Centers for Disease Control and Prevention and the White House.
In a time when people are concerned for their own health, and as the US — and Idaho — sees a growing number of confirmed coronavirus cases, the state’s focus on further marginalizing a tiny community with little political power comes across as increasingly petty and small.
Correction: An earlier version of this article mischaracterized the views of Idaho Attorney General Lawrence Wasden, whose office has indicated the two Idaho bills may face legal challenges. Wasden has not recommended vetoes of the bills.