Metro Weekly

Federal judge says Idaho cannot ban transgender people from amending their birth certificates

Magistrate Judge Candy Dale says "serious and formidable questions" surround new law's constitutionality

idaho, transgender, trans, birth certificates

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

A federal judge warned the state of Idaho that the permanent injunction she previously issued two years ago to block the state from preventing transgender people from correcting the gender markers on their birth certificates to match their gender identity continues to remain in effect.

U.S. Magistrate Judge Candy Dale noted in her opinion that her 2018 ruling overturning the state’s categorical ban on amending birth certificates remains in effect, despite a new law, slated to go into effect on July 1, that prohibits any gender-marker changes to birth certificates for any reason other than clerical error, and only for up to a period after the certificate has been issued.

“[T]he plain language and objective of the Order and Judgment entered in this case permanently enjoin [the Idaho Department of Health and Welfare] 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,” Dale wrote.

Dale declined to weigh in on the constitutionality of HB 509, or whether implementing the law would violate the permanent injunction, saying only that “serious and formidable questions” exist with respect to those issues.

However, she outright rejected arguments made in court last month by Idaho Deputy Attorney General Steven Olsen, who had claimed that the injunction would not apply to the new prohibition on amending birth certificates when HB 509 takes effect, and that the new prohibition is not a “categorical ban.”

Related: Will Idaho’s governor sign anti-transgender birth certificate bill, in violation of court order?

“The Injunction is not constrained to any particular policy, rule, or statute as Defendants argue. The plain terms and clear objective of the Injunction permanently prohibit IDHW from implementing or enforcing any policy, rule, or the like that automatically rejects applications from transgender people to change the sex listed on their birth certificates,” Dale wrote.

“HB 509 does not absolve IDHW from accepting, considering, and processing applications from individuals, transgender or otherwise, seeking to change the sex listed on their birth certificate to match their gender identity,” Dale added. “To conclude otherwise invites ‘experimentation with disobedience of the law.'”

Idaho officials had previously warned lawmakers and Gov. Brad Little, who signed HB 509 into law, that it might not pass constitutional muster, and that their fight to block transgender people from amending their birth certificates might ultimately be unsuccessful.

Assistant Chief Deputy Brian Kane said, at the time the law passed, that attempting to defend the law could cost taxpayers more than $1 million.

A spokesman for the attorney general’s office told Boise State Public Radio that the office is currently reviewing the ruling, but declined to say whether it would appeal.

“The court has confirmed that its injunction continues to apply, in full force and effect, and it has now expressly cautioned that HB 509 does not whatsoever absolve state officials from their obligation to comply with the federal injunction,” Lambda Legal Counsel Peter Renn said in a statement. “Like obeying speed limits and paying your taxes, Idaho state officials are not exempt from the duty to follow a court order.”

“It is remarkable that we were even back in court on this issue, as a direct result of efforts by the Idaho legislature and Governor Little to turn back the clock on equality,” Lambda Legal Staff Attorney Kara Inglehart said in a statement. “To force this law through, even as the country grapples with the COVID-19 pandemic, is even more inexcusable.

“We will continue to protect against efforts to roll back the rights of transgender people born in Idaho,” she added. “Accurate identity documents are not only necessary to navigate everyday life, they are also critical to protecting transgender people from harassment and even violence, which is why 47 states have rejected the archaic policy that some seek to restore.”

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John Riley is the local news reporter for Metro Weekly. He can be reached at

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