'It seems strange to waste resources on discrimination against transgender people when so many people's safety and livelihoods are threatened.'
A civil rights group this week asked a federal judge to confirm that an Idaho law barring transgender people from changing their gender on their birth certificates violates their constitutional rights.
Lambda Legal, a nonprofit group that advocates on behalf of LGBTQ people, has argued that the new law should be subject to a 2018 order that labeled similar policies unconstitutional.
Idaho passed a law in March that allows changes to birth certificates only to correct "a clerical or data entry error." It specifically prohibits any changes to a person's 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."
Lambda Legal says that law is at odds with a 2018 decision that ruled a separate policy allowing the Idaho Department of Health and Welfare to effectively bar transgender people from changing the sex listed on their birth certificates was similarly unconstitutional.
Dale, who also served as the judge in that case, said the 2018 policy violated the Equal Protection Clause and endangered those forced to show inaccurate official documents by opening them up to discrimination.
The judge said at the time that there had been "significant changes in the medical understanding of gender identity" which "call for a reexamination of its place in the equal protection context in relation to sex-based discrimination."
Dale ruled that, in that instance, transgender people were experiencing sex-based discrimination.
Lambda Legal was behind the 2018 lawsuit as well.
During a court hearing on Tuesday, the group asked the judge to confirm that her 2018 ruling applied to the new law, and that the government should not enforce it.
It brought the lawsuit on behalf of two transgender women who said they had experienced harassment at government offices and grocery stores because they had to show inaccurate identification.
During the hearing, Steven Olsen, chief of civil litigation for the Idaho attorney general's office, argued that the previous judge's ruling only applied to the 2018 case and did not apply to the current law. He claimed the more recent law was not a categorical ban because it allowed for someone to change their gender marker in cases of fraud, duress, or mistaken fact.
The judge pushed back on that claim, 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.
"I agree the words don't find themselves within statute but they are encompassed within statute," Olsen claimed. He suggested a transgender person could go to court if they wanted to change their gender marker, arguing that Lambda Legal was asking the court to "speculate" on the issue instead by allowing trans people to change it themselves.
Peter Renn, a lawyer with Lambda Legal's Western Regional Office, rejected that argument, saying the state's position essentially forced transgender people to wait "to be irreparably harmed."
The law is set to go into effect on July 1 if it is not blocked by a federal judge before then.
Nora Huppert, a Renberg fellow at Lambda Legal and one of the lawyers working on the case, said in an interview this week that the law would put transgender people's safety at risk.
"We know that when identity documents out trans people, the community knows these stories of people being harassed, discriminated against, and threatened with violence in those situations," Huppert said. "I think a big fear for people is having information revealed about them at work, to their coworkers, accessing benefits, which is a common theme with birth certificates because of the role they play in accessing medical care."
And despite the raging pandemic, Idaho has already passed two laws this year that target transgender people, the current case being one of them.
In March, Idaho Gov. Brad Little, a Republican, also signed a ban on transgender women competing in girls and women's sports. The law applies to sports teams that are sponsored by public schools, colleges, and universities.
The American Civil Liberties Union and Legal Voice filed a lawsuit challenging it in April, arguing that the law is unconstitutional and violates the federal civil rights law Title IX.
Huppert 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."
Idaho is not alone in its efforts to block trans people from changing their birth certificates, of course.
According to the Movement Advancement Project, Ohio and Tennessee have banned people from changing their gender marker at all.
Fifteen other states, including Arizona, North Dakota, Nebraska, Iowa, Maine, and Arkansas, require proof of sex reassignment surgery, something not all transgender people want or can afford.
Published with permission of The American Independent Foundation.