BOISE, Idaho — Two years ago, Idaho Republicans flouted warnings that barring transgender people from changing the gender on their birth certificates is unconstitutional. Now, Idaho taxpayers owe more than $320,000 to attorneys who successfully challenged the 2020 law.
The Idaho Board of Examiners on Tuesday approved the payment amount for Lambda Legal, the civil rights group that represented two transgender women who challenged the law. A court awarded attorneys’ fees to the group in June — it’s not yet clear when the state will pay up.
Nora Huppert, a Lambda Legal attorney, told the Idaho Statesman that Idaho officials “willfully ignored warnings that the policy would almost certainly result in an award of attorneys’ fees.”
“The government had every opportunity to avoid this outcome simply by not doubling down on an unconstitutional policy, but it chose discrimination instead, and discrimination is expensive,” Huppert said by email.
Anti-trans law enacted, despite looming challenge
In 2018, two transgender women sued the Idaho Department of Health and Welfare, or DHW, over a policy that barred transgender people from changing the gender on their birth certificates. The plaintiffs argued the policy violated the equal protection clause of the 14th Amendment.
U.S. Magistrate Judge Candy Dale agreed and permanently enjoined the state from automatically rejecting transgender applicants’ request to alter their birth certificates.
“These laws give certain people access to birth certificates that accurately reflect who they are, while denying transgender people, as a class, access to birth certificates that accurately reflect their gender identity,” Dale wrote in the 2018 opinion.
In 2020, despite the court order, the Idaho Legislature passed House Bill 509, which essentially did the same thing as the DHW policy. It mandated that “statistics and materials of fact” on birth certificates, including sex, could only be challenged in court and on the basis of “fraud, duress, or material mistake of fact.”
The bill passed nearly along party lines, with a few GOP lawmakers opposing it, and Republican Gov. Brad Little signed it on March 30, 2020.
“Gov. Little signed House Bill 509 because it passed the Idaho Legislature with an overwhelming majority in 2020, and he believed the bill was in line with what most Idahoans support — that birth certificates, as a form of vital records, should accurately reflect one’s sex at birth,” Madison Hardy, Little’s spokesperson, told the Statesman by email Tuesday.
In the subsequent months, Lambda Legal filed two motions seeking clarification of the 2018 court order. In August 2020, Dale ruled the statute created by HB 509 had the same effect as the policy she previously barred the state from enforcing.
“The plain language of the statute ... forecloses any avenue for a transgender individual to successfully challenge the sex listed on their Idaho birth certificate to reflect their gender identity,” Dale wrote at the time.
The Idaho attorney general’s office warned House Bill 509 could result in a costly legal challenge. The state had already paid $75,000 in legal fees following the 2018 lawsuit.
Colleen Smith, an attorney and Eagle resident, who worked on the birth certificate case, wrote in a recent column that she’s proud of her team’s successful case and that fees were awarded.
“But I am also disheartened to know my family and my neighbors will be the ones to — yet again — pick up the tab for the state’s poor legal decisions,” Smith wrote.
In a phone interview with the Statesman, Smith noted “how many times the Legislature was told, ‘This is unconstitutional, and it will be challenged, and you will lose, and there will be a big bill.’”
“They ignored that time and again,” she said.
More legal fees as LGBTQ targeting continues
Last year, the plaintiffs’ attorneys filed a request for nearly $450,000 in fees. State attorneys objected to the “unreasonable” amount, which, they argued, should not exceed $148,000.
Lambda Legal calculated costs based on average Boise attorney fees along with local fees for out-of-state attorneys who worked on the case, Smith said. The group is headquartered in Los Angeles with lawyers based there as well as Chicago.
The court ultimately awarded $321,225 in fees.
“Had (state attorneys) decided to litigate it more thoroughly and appeal, it could have been a much larger bill,” Smith said.
The Board of Examiners — which includes the governor, attorney general and secretary of state — on Tuesday sent the bill to the Idaho Legislature.
It has yet to be determined from which fund the attorneys fees will be paid, Hardy said. It will be included in Little’s January budget recommendation, she said.
The fees will accrue 2.14% interest until the bill is paid, according to a letter from Deputy Attorney General Steven Olsen.
Typically, the Idaho Legislature pays legal fees from its taxpayer-funded constitutional defense fund. Since 1995, the Idaho Legislature has spent more than $3.2 million from the fund to pay for opponents’ legal fees when it loses in court, the Statesman previously reported.
Meanwhile, GOP officials continue to target transgender people. During this year’s legislative session, the Idaho House passed a bill that would have made it a crime to provide gender-affirming health care to transgender minors. The Senate did not consider the legislation.
That proposal came amid another constitutional challenge to Idaho’s 2020 law barring transgender athletes from competing in women’s sports. While that lawsuit stalled last year, it likely will move forward this year, The Associated Press reported.
Last week, Little announced that he signed a letter to Democratic President Joe Biden opposing a federal proposal that would modify Title IX language to include protections for sexual orientation and gender identity. Fourteen Republican governors signed the letter, which said the policy would require institutions receiving federal funding to allow transgender students to access women and girls’ locker rooms, bathrooms and dormitories.
“By expanding Title IX to include gender identity and sexual orientation, your administration puts girls and women of all ages at risk,” the letter said.
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