Metro Weekly

Idaho nixes restrictions on birth certificate gender marker changes for trans minors

Department of Health and Welfare says temporary rule did not receive enough votes to go into effect

Photo: Idaho State Capitol. Credit: Kevin Rank/flickr.

The Idaho State Board of Health and Welfare scuttled a temporary rule requiring transgender minors to get a doctor’s approval before changing the gender marker on their birth certificates.

For years, Idaho was one of a handful of states that would not allow people to change the gender marker on their birth certificate for any reason, even if they had testimony from their medical providers asserting that they had transitioned.

Last year, a federal judge ruled the state’s policy barring such changes was unconstitutional, and ordered the state to begin issuing certificates with accurate gender markers.

But in May, the Idaho Department of Health and Welfare’s board of directors approved a temporary rule requiring those under the age of 18 to get approval from medical and mental health professionals before requesting a gender marker change.

The department claimed the restriction for minors was necessary to ensure that a youth’s transition was “informed and supported by independent professional judgment.”

Related: Idaho makes it harder for transgender minors to change gender on their birth certificates

At the time, the rule passed with three “yes” votes, one “no” vote, and one abstention, reports The Idaho Press.

However, last week, board chairman Darrell Kerby announced the rule would be vacated because they received word from attorneys that the temporary rule, which the state began enforcing in July, required four votes to go into effect.

Going forward, minors wishing to change their birth certificates to reflect their gender identity only need to obtain parental permission, as was required prior to the adoption of the temporary rule.

Under Idaho’s rule-making process, the state legislature must sign off on rules promulgated by the executive branch, meaning that lawmakers would have had to vote on the restriction when the legislature reconvenes in early 2020.

But Sen. Fred Martin (R-Boise), the chair of the Senate Health and Welfare Committee, says that with rule being scrapped, it opens the floodgates for lawmakers to introduce all sorts of legislation targeting transgender individuals.

Martin, a non-voting member of the state board of Health and Welfare, says he had supported the restriction for minors because it was a compromise that state lawmakers could accept.

With no restriction other than parental permission in place, Martin warns that Idaho lawmakers will introduce a host of bills that “would be problematic,” including one proposal that would require DNA or chromosome tests to determine a person’s biological sex — which would then be the only sex allowed on the birth certificate in perpetuity.

There is likely to be substantial political pressure on lawmakers to engage in such stunts. During an earlier public comment period on the now-defunct restriction, which was opened in order to allow the public to make recommendations to lawmakers, most Idahoans said they wanted the state to return to its old policy prohibiting any changes to birth certificates, despite its unconstitutionality.

But lawyers representing the women who had sued over that policy say that it, and the proposed restriction, would both have violated the federal court’s order. The ACLU of Idaho says that even the alleged “compromise,” as Martin refers to the restriction on minors, would unfairly single out transgender minors.

“A court order has cautioned the state from creating any new rule that would ‘subject one class of people to any more onerous burdens than the burdens placed on others without constitutionally-appropriate justification,’ including the need to provide medical evidence,” the ACLU of Idaho wrote in a blog post on its website. “Also, despite DHW’s rationale for the inclusion of this amendment, stating that it ensures the veracity of information and ‘advances the public health, safety and welfare of minors…’, there have been no known issues since the rule was implemented on April 6, 2018.”

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