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Idaho tells court that its hateful birth certificate law isn’t transphobic, despite overwhelming evidence otherwise

Emma Powys Maurice May 20, 2020
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A person holding a transgender pride flag outside the Stonewall Inn at a 2019 rally. (ANGELA WEISS/AFP/Getty)

The state of Idaho is arguing that a new law that blocks changes to birth certificates is not harmful to trans people, despite a previous court ruling proving it is.

The bill, HB 509, specifically prohibits changes to gender markers, claiming that “biological distinctions between male and female are a matter of scientific fact, and biological sex is an objectively defined category that has obvious, immutable, and distinguishable characteristics.”

It also claims that changing someone’s biological sex on their birth certificate “impacts the health and safety of all individuals.”

If this legislation takes effect on July 1, trans people would only be able to change their birth certificates with a court order that proves the original birth certificate was recorded incorrectly due to “fraud, duress or material mistake of fact.”

The state has tried to implement a similar policy before, but a federal court ruling in 2018 stated that it was unconstitutional.

The policy was found to have violated the Equal Protection Clause and endangered transgender people, who were opened up to discrimination when forced to show inaccurate IDs.

Lambda Legal argued that the latest bill is clearly at odds with the 2018 ruling – but deputy attorney general Steven Olsen suggested that the legislation needed to go into effect before any harm to transgender people could be proven.

Peter Renn, an attorney for the group, pointed out that “there is no difference” between HB 509 and the unconstitutional policy that was overturned.

You can’t “pretend the previous lawsuit never happened” by passing a new law and giving it a different bill number, he warned.

But Olsen claimed that HB 509 violated neither the “the letter or the spirit” of the previous judgement, and that the previous case does not apply here.

He insisted that HB 509 was “not a categorical ban” on changes to gender markers, but the judge pushed back on this, noting there wasn’t a “single use of the word transgender” or other phrasing that might indicate a path for trans people to change their gender marker.

Nora Huppert, a lawyer for Lambda Legal who is working on the case, said it was an “absurd time” to be passing these those kinds of discriminatory laws.

“Idaho has other priorities right now,” she said. “It seems strange to waste resources on discrimination against transgender people when so many people’s safety and livelihoods are threatened.”

More: anti-trans bill, birth certificates, gender markers, HB 509, IDAHO

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