Thread by @LambdaLegal

🏛️IN COURT: This morning we're in the United States District Court for the District of Idaho defending transgender Idahoans' right to correct and hold accurate identity documents.

Our Counsel Peter Renn is up: "Plaintiffs are asking this court to confirm that it meant what it said in 2018."

In 2018, we won an injunction blocking Idaho's categorical ban on trans people correcting birth certificate gender markers. This year, ID passed a law in opposition.

The law passed was #HB509, which bars transgender Idahoans from correcting their birth certificate gender markers.

We're asking for confirmation of the ruling in our case, FV v. Jeppesen (fka v. Barron, v. Armstrong). You can read about it here: lambdalegal.org/in-court/cases…

The question at the heart of today's arguments is simple:

If if #HB509 requires conduct that this court already enjoined, it is prohibited.

(Pro-tip: It does.)

Peter Renn gets to it: "Alternative to all of this is that we end up litigating, after the fact, the lawfulness of defendants’ conduct in contempt proceedings."

We're hoping to avoid that. #HB509

#HB509 violates the prohibitory, mandatory, and declaratory aspects of this court’s order.

Here's the 2018 order: lambdalegal.org/in-court/legal…

The fact that #HB509 is a statue, that does not exempt it from the scope of this injunction.

State law is subordinate to federal law.

It cannot be the case that promoting an unconstitutional policy to unconstitutional statute gets defendant off the hook of complying with an injunction.

This further entrenches conduct. #HB509

Here, there is no relevant difference between defendants policy as it existed in 2018 and #HB509.

Both of them require defendants to categorically deny applications from transgender people.

Even if we set aside the prohibitory aspects of this injunction and look at the mandatory language, it's clear that enforcement of #HB509 would violate the court's mandatory injunction.

This court was crystal clear when it mandated defendants must accept applications from transgender people. It even set a start date on which they must begin to do so.

This court held that defendants "violate the Equal Protection Clause by failing to provide an avenue for transgender people to amend the sex listed on their birth certificate."

You don't have to stretch to confirm that #HB509 violates that declaratory relief.

The Court reading the defendants opposition:
Policy of 2017 gave rise to original lawsuit. Dept went through its rulemaking processes, came up with a temp rule, put that into force. Defendants are taking the position that #HB509 supersedes that very rule.

Our Counsel Peter Renn reiterates the categorical ban inherent in both policies—this is the problem.

As was demonstrated in 9th Circuit: You don't get to just comply only with the letter of an injunction (although to be clear, we do think that's violated here as well) you violate an injunction when you violate the purpose. #HB509

There are standards defendants need to satisfy, like showing a significant change in facts. They do not get to just wipe the slate clean and start from square one.

Otherwise, no lawsuit would ever come to an end.

Court has already adjudicated that categorical ban is unconstitutional.

The legislature cannot just use a new bill number and make a new law, pretending as if a lawsuit never happened.

We're not asking the Court stretch the injunction, just confirm they meant what they said.

Defendants are up. Assert that we are arguing to rule that #HB509 is unconstitutional.

Actually: We are (again) asking the court to confirm that they meant what they said when they ruled against a categorical ban.

Court asks defendant to clarify the mechanism through which #HB509 might in fact comply with the injunction.

(Good luck!)

Court: Are you saying that a requested change of a gender marker to match one's gender identity would require a finding of duress or material mistake of fact?

Defendant: That's what the law (#HB509) requires.

Sounds like a categorical ban to us!

Defendant asserts that we don't know how those provisions will be interpreted by a court without having an actual case of controversy before it.

Says we are asking the court to speculate that this statute categorically bans the ability to change their sex marker.

Court: What is your explanation as to how this does not categorically bar that?

Defendant: The person can go to court and challenge the sex identity on their birth certificate. Person would need to show fraud, duress, or material mistake of fact.

The central question before this court: Do the provisions of #HB509 fall within the scope of the injunction?

Defendant says that to examine that, we can look at the language of the injunction.

Refers to paragraph 2 of ruling, which says that applications cannot be automatically rejected. Paragraph 3 enjoins that. Paragraph 4: Applications must be renewed through constitutionally sound approval process.

Asserts a person can change marker under #HB503 under court order.

Says that we appear to be arguing that the act of the legislature in adopting a new means has violated a court's judgment.

Once again: It does. Categorically.

Idaho's legislature might as well have torn down the courthouse. 🙄

Defendant says we are asking the court to see #HB509 as violation of the scope of this injunction. (it. is.)

Says this court needs to very carefully look at what the scope of that injunction was.

Court asks defendants: What is your authority for #HB509 superseding a rule?

Defendant continually characterizes changing someone's sex on a birth certificate as equivalent to changing "any of the other 5 facts on a birth certificate" (e.g. place of birth, paternity, etc) 👀

Defendant says that court with a case "properly before it" would have the opportunity to review the statute of #HB509. Would have opportunity to evaluate the law and any rules adopted with conjunction of that law.

Defendant states we cannot claim to have an injury should the Court decide not to extend its injunction to prohibit parts of #HB509 going into effect.

Once again: We aren't asking for an extension of anything. We're asking the Court to confirm that they meant what they said.

Very language of Idaho's #HB509 repeatedly leans into "objective" definitions of sex as "immutable" and "biological".

Seems at odds with opposition's assertion that a person can "apply to re-designate their sex identity" through court order under 509. 🤔 legislature.idaho.gov/wp-content/upl…

Peter Renn is back up.

#HB509 creates a categorical ban on sex designation changes on a birth certificate for the purpose of achieving congruence between one's gender identity and the sex marker.

The below highlighted language is drawn directly from the text of #HB509, characterizing an effort to correct one's sex marker as one based in "subjective feelings".

But sure, there's an assumption of good faith here. #ok

There is no avenue under the statutory text for an individual to change their sex marker on their birth certificate in congruence with their gender identity.

The entire point of #HB509 was to ban these precise types of corrections.

If the law said "no female police officers", it would make no sense to say we must wait to see what happens when a woman applies.

Nonsensical to defend a law that prohibits an action by saying "we just don't know what will happen" when someone tries that action. #HB509

Ultimately: Defendants cannot just take the power upon themselves to relieve themselves of the scope of the injunction. #HB509

Court: Matter is under advisement. Court is adjourned.