The state of Idaho has made it more difficult for transgender minors to change the gender marker on their birth certificates, even though a federal court ruling last year was supposed to lift any such restrictions.
For years, Idaho was one of a handful of states that would not allow people to change the gender marker on their birth certificate, even if they obtained a court order or a doctor’s note confirming they had undergone a gender transition.
But last year, a federal judge overturned that policy, finding that barring transgender people from changing their gender markers violates the Equal Protection Clause of the U.S. Constitution, as well as their freedom from compelled speech.
“Any new rule must not subject one class of people to any more onerous burdens than the burdens placed on others without constitutionally appropriate justification,” U.S. Magistrate Judge Candy Dale wrote on behalf of the court in that case. “…A rule providing an avenue to obtain a birth certificate with a listed sex that aligns with an individual’s gender identity promotes the health, well-being, and safety of transgender people without impacting the rights of others.”
The court also ordered Idaho to pay $75,000 to cover the attorneys’ fees incurred by the two plaintiffs who brought the lawsuit.
Following the court ruling, the Idaho Department of Health and Welfare’s board of directors moved to comply with the ruling. But this past May, the department approved a temporary rule requiring minors under the age of 18 to get approval from medical or mental health professionals before they can request a change of gender marker, reports the Associated Press.
The department justified the rule by claiming that the age-based restriction “advances the public health, safety, and welfare of minors because it ensures the decision to amend the sex designation is informed and supported by independent professional judgment.”
Under Idaho’s rule-making process, the state legislature must approve or reject rules set forth by the executive branch. In April, at the end of this year’s legislative session, lawmakers killed a bill reauthorizing thousands of rules that were set to expire. But Gov. Brad Little (R) used his executive authority to give the rules he wanted to keep temporary status on July 1. The rule on transgender birth certificates was included along with that batch of rules.
When the legislature reconvenes in January, lawmakers will then decide whether or not to approve the restriction on minors wishing to change their gender markers. To provide guidance to legislators, health department officials allowed the public to comment on and offer suggestions regarding the proposed rule. Those comments — most of which said they wanted the state to return to its old policy prohibiting any changes to birth certificates — were made public on Wednesday.
From the time that the court ruling ordering the state to allow gender marker changes was handed down in April 2018 until the end of September 2019, 145 people applied to change their birth certificates, Niki Forbing-Orr, a Health and Welfare Department spokeswoman, told the AP. Twenty of those requests were for minor children, with the youngest being seven years old.
Forbing-Orr said five of those 20 requests from minors came after the temporary rule took effect on July 1, but she didn’t have information on the status of those applications.
Peter Renn, counsel in the Western Regional Office of Lambda Legal, criticized the temporary rule as unnecessary, noting there hasn’t been “a lick of evidence” to suggest that minors are somehow improperly or wantonly changing their gender markers on vital documents. Additionally, parental consent is already required before a minor applies for a change, meaning there was no evidence that the rules previously in place infringed on parental rights.
“What’s particularly troubling here is this is perhaps the epitome of a solution in search of a problem,” says Renn. “Because there’s no evidence or indication that the prior rules that were in place [for more than a year, following the court decision] were somehow inadequate, in any way.”
Renn also says that the onus is on the state government to justify any hurdles it throws up that make it harder for transgender individuals to amend their gender markers. And, should either the executive branch or the legislature take more aggressive moves to restrict that ability, the more likely the state risks future legal action being taken against it.
“The court already made very clear that the government can’t put up senseless roadblocks that prevent transgender people from being able to obtain corrected birth certificates that match their gender identity,” he says. “So the state is taking on a significant amount of risk by straying away from the plain language of the order. The further Idaho gets away from the court order, the greater the risk it incurs of being in violation of that order.”