Thread by @LambdaLegal

🏦 IN COURT: In a half hour, we'll be (virtually) in court fighting for transgender Idahoans' right to obtain accurate birth certificates.

#HB509 flies in the face of this very Court's rulings. Trans Idahoans deserve better!

Read more about the case: lambdalegal.org/in-court/cases…

HISTORY:

4/18/17: We sued Idaho over their categorical refusal to allow transgender people to correct the gender marker on their birth certificates.

3/5/18: We won! Court orders officials to begin allowing Idahoan-born trans people to do so beginning 4/6/18.

3/20/20: @GovernorLittle signs into law #HB509, banning transgender people from changing the gender marker on their birth certificates.

You know, despite the 2018 ruling.

April 16th 2020: We filed with the U.S. District Court for the District of Idaho to confirm that they meant what they said!

🧐 ... it seemed pretty clear to us:
lambdalegal.org/blog/20180305_…

Arguing in court today will be Lambda Legal Renberg Fellow @norahuppert36.

Read the 🔥 reply brief submitted in support of our motion for clarification: lambdalegal.org/in-court/legal…

ALSO today in Idaho, our friends at @acluidaho were in court fighting #HB500, the state's anti-transgender law regarding female athletes.

Tune in at 4pm MT for a double-header FBLive with @acluidaho!

They will be discussing arguments in the #HB500 case, and @norahuppert36 will be discussing arguments in our case against #HB509.

The hearing is beginning.

@norahuppert36 is up first. We ask for confirmation that a requirement to seek a court order before transgender people can obtain a corrected birth certificate is in violation of the court's order.

Nora explains how #HB509 specifically defines "biological sex as an objectively defined category that has obvious, immutable, and distinguishable characteristics", effectively codifying an extremely narrow interpretation of sex.

Yikes.

#HB509 provides no plausible avenue for transgender people to seek relief. The law is crystal clear.

#HB509 allows for people to seek a court order to correct their birth certificates only in cases of fraud, duress or material mistake of fact.

That's a ban.

As defendants themselves have said, they do have control over determining when an app is deemed complete. They cannot shift the blame for this requirement onto the other two branches of government. Under 509, courts do not even have the power to grant an order to a trans person.

We are asking for clarification of the prior order. Clarification is merely the determination of scope of a prior order. It is legal, not factual.

SCOTUS has said repeatedly that a party should use clarification before engaging in conduct that might violate the injunction.

There is no reason to wait until someone has been denied.

@norahuppert36 cites the 9th Circuit, stating we do not need to wait for the Sword of Damocles to fall.

The court can provide this clarification today.

Court asks how we could know that Idaho Department of Health and Welfare would require this court order.

Nora replies that they have specifically said that they would require a court order. This is equivalent to categorically rejecting.

We have a judicially cognizable interest in this judgment and have standing to ensure IDHW's compliance with the standing injunction.

Looking at #HB509 is not a case of choosing between two reasonable interpretations of ambiguous frame. This law was set up to limit the court's power to grant release to transgender people.

Court asks if our contention is that this court can make that finding without interpreting #HB509.

Nora replies that we are looking for confirmation that the court order requirement violates the court's injunction that IDHW maintain a meaningful avenue for transgender people.

Immaterial changes to a prohibited policy or practice do not take the policy outside of that scope of an injunction. The conduct has already been enjoined.

This court's injunction affirmatively required the Idaho Dept of Health & Welfare to accept applications from transgender people to correct their birth certificates, and that is a requirement that they are now failing.

Even a court order requirement that is at least theoretically open to transgender people could violate other aspects of the injunction.

For example, if its spirit was to circumvent the injunction.

Steven Olsen is up, representing Dave Jeppesen, IDHW Director.

Asserts that this court should deny our request to "enlarge the injunction" so that it applies to #HB509. 🤔

Just a quick reminder: The injunction we won ordered Idaho state officials to provide an avenue for transgender people to correct their birth certificates.

#HB509 would disallow that.

It is not “enlarging” the injunction to name that conflict. 🙄

Defendants say "in 2018 there was no law that allowed a transgender person to change their birth certificate."

Right, there was just a policy in place that barred it.

That's ... why we sued.

Defendant argues that if the court grants plaintiffs motion, it would be deciding without case or controversy that someone has the right to name their gender identity on their birth certificate, even if incongruent with their "biological sex." Insists that a case must be brought.

Defendant: This court has decided under equal protection principles that transgender persons are welcome to have their gender identity listed on their birth certificate as their sex.

Defendants: But what the Court hasn't decided is if the legislature's rationale for #HB509 would meet the heightened scrutiny test.

Alludes that people might want to change other things on their birth certificates.

IDHW lawyer suggests a transgender person could appeal on "material mistake of fact" under HB509 to correct their birth certificate gender marker.

REMINDER: #HB509 designates sex EXCLUSIVELY as "biological, immutable" and originating "from birth".

Court compares 2 applications, from April 2018 (when IDHW was ordered to allow trans people to correct gender markers) and presently.

Attestation on April 2018 apps allow much greater flexibility; and current apps very binary and specific.

Defendants give confusing scenario on how someone "experiencing gender dysphoria" could "change their gender identity several times". If they changed their marker in 2018, they could change it back.

... This does not meaningfully address the needs of most trans people.

Nora is up again.

She reiterates that, farfetched examples given aside: No person under this law could change their gender marker for the purpose of affirming their gender identity.

The only people who could get a correction under #HB509 would be cisgender people.

It's no defense for the defendants to say they have no control over what the courts will do.

The defendants cannot escape liability for their decision to adopt a requirement by saying they have no control over what the courts will do.

Court: Why have plaintiffs filed a second motion for clarification?

Nora: Defendants had not yet implemented their policy when we first filed.

Court asks if there is anything to take up further in this motion.

Both parties say no. Court is adjourned.