Gov. Brad Little should veto the two anti-transgender bills now sitting on his desk.
Both bills are very likely to be found unconstitutional, as the Idaho Attorney General’s Office has warned, along with five other former Idaho attorneys general. Both would require expensive litigation. One would likely result in the state being held in contempt of federal court.
House Bill 500 would ban transgender women from competing in women’s sports divisions. The effects of gender transition on athletic performance are not yet well understood, but they are under active scientific investigation. We know that transgender women and girls do have an advantage prior to transition, but evidence will continue to emerge about how long a period of hormone suppression is required to make competition fair, something that may vary from sport to sport.
Rep. Barbara Ehardt’s bill would use state law to preempt sports regulatory groups like the Idaho High School Activities Association and the NCAA from setting the rules for transgender competition in the women’s division of school sports, and importantly, it would prevent them from updating these rules as new evidence emerges. The result will be that transgender women and girls who could compete on a level playing field will be denied that opportunity. The bill likely violates the Equal Protection Clause, Title IX and the Interstate Commerce Clause.
House Bill 509, which would prevent transgender Idahoans from obtaining a birth certificate that matches their gender identity, is even worse. It essentially reinstates the policy that got Idaho sued in federal court, where it lost on Equal Protection Clause grounds. Rep. Julianne Young’s bill would defy a federal court order as well as the U.S. Constitution.
It will not be a defensible position to claim that the state has a compelling interest in accurate vital statistics. Nothing prevents the state from maintaining a record of past birth certificates. The reason the old policy, which would be reinstituted under 509, is unconstitutional is that it subjected transgender citizens to mistreatment when they presented their birth certificate. This is state discrimination, and the state will not be able to prove it has no less harmful method of achieving its stated interest, which will be the standard applied by federal courts.
There could be no worse time to sign these bills.
Idaho is dealing with the developing coronavirus pandemic, though some in the Legislature have seemed at times shockingly oblivious to it. The pandemic will quite likely sap tax revenue and require massive public health expenditures. It would be deeply irresponsible to flush a bunch of tax dollars down the toilet for the purpose of making a culture-warrior statement of exclusion and disapproval about a small, vulnerable minority population — especially now.
We know that you know this, Gov. Little. Please veto these bills.