A step toward enjoining Idaho’s trans birth certificate ban

Kudos to Lambda Legal, who in 2018 got Idaho’s administrative policy barring all birth certificate changes for transgender people enjoined by a federal court. When Idaho lawmakers and Governor Brad Little sought to flout that court order this spring passing a law, HB509, that reinstates the old ban, Lambda Legal sued to enforce the 2018 court order.

The federal district court for Idaho issued an initial ruling yesterday, stating:

The Court clarifies that the plain language and objective of the Order and Judgment entered in this case permanently enjoin IDHW from infringing on the constitutional rights of transgender individuals by automatically rejecting applications to change the sex listed on their birth certificates to match their gender identity. The Injunction requires IDHW to institute a meaningful and constitutionally-sound process for accepting, reviewing, and considering applications from transgender individuals to amend the gender listed on their birth certificates.

The court noted it had previously found that “the categorical and automatic denial of applications submitted by transgender people to change the sex listed on their birth certificates was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.” (The court did not address the claims that such a ban infringes the constitutional right to informational privacy or the right to free speech and against compelled speech. Courts have previously held that transgender people have a constitutional right both to express their gender identity and not to be forced to disclose their transgender status.)

But the court did not, yet, specifically enjoin HB509, which is set to go into effect July 1, 2020. It said: “While serious and formidable questions exist over the constitutionality of HB 509, whether HB 509 can pass constitutional muster is not yet before the Court and not decided here,” partly because the state hasn't yet adopted final rules to implement the law. As a result, “"It is not known at this time...how IDHW will interpret and implement HB 509.”

A footnote observed: "It is not lost on the Court that HB 509 was drafted, at least in part, in response to and for the purpose of circumventing the Order and Judgment in this case." Nevertheless, without implementing rules from the state, ruling on HB509 would be premature.

But this only delays matters for a few weeks. It’s essentially impossible for the state to issue implementing rules that comply both with HB509 and with the court’s orders. The state can, perhaps, try to find some saving construction that the court will permit; it could explicitly admit defeat by announcing it won’t do anything to implement HB509 in light of the court’s orders; or it could tacitly admit defeat by implementing rules that straightforwardly implement HB509 and are sure to be enjoined.

Given that the Ninth Circuit has already held (in the military ban cases) that heightened scrutiny applies to anti-transgender discrimination, and that the Idaho Attorney General expressed serious concerns about the lawfulness of HB509 before its passage, HB 509 appears doomed. One can hope that, like North Carolina HB 2, it will stand out as an anomaly other states have little appetite to repeat. But it is also likely to be overshadowed by the litigation of its higher profile sibling bill, HB 500, which would bar trans girls from school sports in Idaho and is being challenged by the ACLU and Legal Voice