Little signs GOP’s anti-transgender bills, setting up likely legal challenges

Idaho Gov. Brad Little has signed into law two anti-transgender bills.

One bill would ban transgender girls and women from participating in sports that align with their gender identity. The other bill would make it illegal for transgender people to change gender markers on their Idaho birth certificates.

Little signed the bills Monday afternoon. He didn’t issue signing statements on either bill.

The bills’ next likely stop will be the courts for a lengthy and expensive legal battle. Republican lawmakers passed both bills despite legal warnings of their unconstitutionality.

House Bill 500, dubbed the Fairness in Women’s Sports Act, would apply to all sports teams sponsored by public schools, colleges and universities. A girls or women’s team would not be open to students who were born as male, even if they identify as female. The bill does not apply to transgender students wanting to participate in boys or men’s sports.

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Under House Bill 509 a birth certificate can be amended only within one year of its filing. After one year, it can be changed only via a court challenge “on the basis of fraud, duress, or material mistake of fact.” Lawmakers passed the bill despite a federal court ruling that a previous Idaho ban on changing birth certificates was unconstitutional.

An Idaho Attorney General’s Office’s analysis of the bills, which was provided to lawmakers, found them possibly unconstitutional and open to legal challenge.

Should the transgender-related bills face a legal challenge, the AG’s office, as the state’s legal arm, will have to defend them in court. The ACLU of Idaho issued a statement saying that it would not hesitate to fight the measures:

“The ACLU of Idaho condemns Gov. Brad Little’s decision to sign discriminatory, unconstitutional, and deeply hurtful anti-transgender bills into law. Leaders from the business, faith, medical, education and athletics communities will not forget this decision or what it says about the governor’s priorities during a global pandemic. The ACLU will see the governor in court.”

Idaho has a constitutional defense fund it uses to pay legal costs for the state to file lawsuits or defend Idaho from lawsuits. The taxpayer-funded account was created in 1995, and it hasn’t funded a winning case since 1996.

In that time, the state has spent $3.2 million through the fund. Its current balance is $1.3 million.

In its legal analysis of the transgender birth certificate bill, the AG’s office indicated that it could cost up to $1 million to defend that bill in court, in part because it defied a federal court order.

Vetos from Little

Five other bills received Little’s veto stamp so far this legislative session, which concluded March 20.

House Bill 384, the Idaho Wrongful Conviction Act, would have required the state to compensate for every year spent behind bars those prisoners who are found wrongfully convicted. Little vetoed the bill Monday.

“This bill has an admirable objective but establishes a flawed process to recompense the wrongfully convicted,” Little wrote in his veto letter, noting that the bill creates an “unfunded mandate” and he would rather see a state board or commission, like the Commission of Pardons and Parole, determine compensation rather than the courts in a lengthy “adversarial” proceeding.

House Bill 325 would have transferred an estimated $18 million annually from general fund sales tax revenue to transportation projects. Little vetoed the bill on March 24.

Little said he vetoed the bill “due to the uncertainty in the coming fiscal year and the COVID-19 crisis.” He said the maintenance and growth of Idaho’s infrastructure “remains a vital commitment.”

“I encourage the Idaho Legislature to pursue a comprehensive package when the state is facing a more positive economic outlook,” Little wrote.

House Bill 487 would have loosened state rules on crop-duster pilots and pesticide applicators. Little vetoed this bill on March 26.

Little said he vetoed the bill because it mandates changes to the rulemaking process, which could have unintended consequences.

House Bill 561 would have let property owners appealing their tax assessment use the sale amount from an “arms-length sale” or a recent appraisal to help justify the appeal. Little vetoed this bill on March 25.

Little said he vetoed the bill because it could “result in unintended tax shifts” to other taxpayers and could create “a lack of uniformity” in property tax assessments.

Senate Bill 1295 pertained to teledentistry by adding requirements for such telehealth services. Little vetoed this bill on Friday. He said he did so because “emergencies such as the current (coronavirus) pandemic demonstrate the potential for telehealth to serve as a tool to triage patients to maintain access to care while traditional venues close or limit their scope.”

Little said the bill would have taken away telehealth flexibility during public emergencies.

This article first appeared in the Idaho Statesman. It is used here with permission.