The following information comprises ACLU of Idaho Policy Director Kathy Griesmyer's testimony to the House State Affairs Committee in opposition of HB 509 on February 21, 2020.
The ACLU of Idaho stands before you today in opposition to HB 509, which would bar transgender Idahoans from changing the gender marker on their birth certificate, a direct violation of a federal district judge ruling in the case F.V. v. Barron and a dangerous rollback to constitutionally protected rights for transgender people born in Idaho.
In accordance with the court ruling in F.V. v. Barron (2018)1, the ACLU of Idaho strongly supports the current Vital Statistics’ rule 201. Completion and Correction of Certificates which now permits adult transgender Idahoans to change the gender marker on their Idaho birth certificate to be consistent with their gender identity through self-attestation. In doing so, it affirms an individuals’ gender expression, provides for consistency among legal identity documents which in turn can reduce harassment and public safety threats for transgender Idahoans. However, HB 509 attempts to circumvent the court’s order without any justification or cause that would satisfy the heightened scrutiny standard to review discrimination claims against transgender Idahoans.
Beyond HB 509’s attempt to blatantly ignore established case law on the subject of identity documents for transgender people2, there have also been no known issues since the rule was implemented on April 6, 2018. In fact, at a May 2019 Board of Health and Welfare meeting, James Aydelotte, in his official capacity as State Registrar and Chief of the Bureau of Vital Records and Health Statistics, reported that within the year the DHW has administered the rule, that over 100 adults and 15 minors have successfully applied to change their gender marker on their birth certificate, with no documented complications. That number has likely even increased since that date, again, with no reports ofdifficulties made by the Department of Health & Welfare (DHW), or transgender Idahoans attempting to update their birth certificate.
Under the current DHW rule, Idaho joins 30 other states that have current administrative procedures that permit transgender people to change the gender marker on their birth certificate. And we join our Western neighbors of Montana, Nevada, Oregon and Washington that permit transgender people to complete the birth certificate update via self-attestation which removes unnecessary and discriminatory burdens that transgender people may face at the hands of government actors. Idaho is not alone in ensuring legal access to accurate identity documents, but HB 509 would again place Idaho in the margins for harming transgender people if this bill were to pass.
According to a 2015 National Center on Transgender Equality survey, one-third (32%) of individuals who have shown IDs that did not match their presentation reported negative experiences, such as being harassed, denied services, and/or attacked. And medical and mental health professionals have long recognized the importance of updated identity documents as a part of gender transition. The American Medical Association, the American Psychological Association and others support allowing trans people to access ID that reflects their gender without proof of medical intervention or other clinical documentation.
The critical need for securing identity documents that matches one’s gender identity ensures that all transgender Idahoans can maneuver through daily life without fear of discrimination or jeopardizing their physical safety. For these reasons, we strongly urge you to vote “no” on HB 509 and ensure that all transgender Idahoans have equal access to changing the gender marker on their birth certificate.
1 F.V. v. Barron, 286 F. Supp. 3d 1131 (D. Idaho 2018) (striking down Idaho restrictions on birth certificate updates as violating Equal Protection and finding that transgender status constitutes a suspect class triggering heightened equal protection scrutiny).
2 See Ray v. Himes, No. 2:18cv00272 (S.D. Ohio Sep. 12, 2019) (denying motion to dismiss complaint challenging Ohio’s refusal to allow correction of gender markers on birth certificates for transgender people, and holding that the plaintiffs stated a claim for violation of constitutional privacy rights). Arroyo Gonzalez v. Rossello Nevares, 305 F. Supp. 3d 327 (D.P.R. 2018) (striking down Puerto Rico’s restriction on gender changes on birth certificates). Love v. Johnson, 146 F. Supp. 3d 848, 852 (E.D. Mich. 2015) (denying government motion to dismiss lawsuit challenging Michigan surgical requirements for update to gender on state driver’s license and identification). K.L. v. State, Dept. of Admin., Div. of Motor Vehicles, No. 3AN-11-05431-CI, 2012 WL 2685183, at *6-8 (Alaska Super. Mar. 12, 2012) (striking down state law barring trans people from updating the sex designation on drivers licenses because the “absence of any procedure for changing the sex designation on an individual's license does not bear a close and substantial relationship to the furtherance of the state's interest in accurate documentation and identification. Indeed, the absence of any such policy can actually result in inaccurate and inconsistent identification documents.”).