USA. Idaho lawmakers approve transgender restrictions

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USA. Idaho lawmakers approve transgender restrictions

Two bills restricting the rights of transgender people in Idaho were sent to Governor Brad Little for signature this week. HB 509 prevents transgender people from changing the sex listed on their birth certificates. HB 500 bans transgender women and girls from competing on female sports teams.

Idaho’s government has been warned that both bills will face lawsuits in federal courts as they violate the Constitution’s equal protection clause. In 2018 the US District Court for the District of Idaho struck down an almost identical law to HB 509. The court held that the prior law unconstitutionally discriminated against transgender people. Idaho did not appeal the ruling. Lambda Legal, the law firm that represented the plaintiffs, issued a press release calling for Little to veto the law on Thursday.

Supporters of HB 509 say it is necessary to ensure the health and safety of Idahoans and for the accuracy of government records. Opponents say the bill flouts a court order and disregards the rule of law, in addition to being inherently discriminatory. Deputy Attorney General Brian Kane outlined a number of concerns and potential issues in a letter sent to the Idaho Legislature. Among other things, he called the law inconsistent with court precedent and said that the bill would face higher scrutiny when reviewed by judges.

Similar concerns have been raised regarding HB 500. Five former Attorneys Generalsfrom Idaho have called for Little to veto the bill, citing the law’s unconstitutionality and the inevitable lengthy and costly legal battles. HB 500 prohibits transgender women and girls from competing on female sports teams sponsored by public schools, colleges or universities. Supporters claim the law will protect the advances gained for female athletes by Title IX, and that transgender women would have advantages over their teammates and opponents. Opponents say the law is discriminatory and would subject female athletes to invasive testing in order to prove their gender. This, they argue, could discourage women from participating in sports.

The law requires proof of the athlete’s gender if it is disputed. Critics worry that athletes could be subjected to humiliating tests solely because someone has a grudge against them. In response to these concerns, supporters of the bill added an amendment that gave any athlete who loses an opportunity, or is forced to prove their gender due to a false claim a cause of action against their accuser. The amendment has not mollified opponents of the bill.

Further, despite what supporters of the bill claim, the issue of whether transgender women would have an advantage due to their inherently higher testosterone levels has not been resolved. The International Olympic Committee permits transgender women who have been on hormone therapy for a year and have testosterone levels under a certain threshold to compete on against other women.

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USA: US Naval officer files suit against transgender military ban

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USA: US Naval officer files suit against transgender military ban

A US Naval officer in Massachusetts filed suit against the Department of Defense for discrimination under the current administration’s transgender military ban Tuesday.

The plaintiff is going by the name James Doe in the interest of privacy. Doe came out as transgender after the ban went into effect in 2019, so she was not protected by the military’s grandfather clause. This clause allowed transgender individuals to continue their service if they came out before the ban.

Jennifer Levi, project director at GLBT Legal Advocates and Defenders (GLAD) stated that, “As an experienced officer, all she seeks is the ability to continue serving her country.”

The complaint states that, “The Due Process Clause of the Fifth Amendment grants Plaintiff constitutional liberties and a fundamental right to privacy that encompasses and protects Plaintiff’s right to self identification and self-determination as a transgender person.” The lawsuit was filed Tuesday in a federal district court in Massachusetts.

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EUROPEAN COMMISSION AGAINST RACISM AND INTOLERANCE (ECRI) publishes recommendations on LGBTI equality in new report on Switzerland

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A new report by the Commission against Racism and Intolerance (ECRI) calls on Switzerland to increase funding and human resources for counselling centres for victims of racism, and to deal more effectively with discrimination, as well as promoting integration. ECRI notes significant progress since its last report in 2014, but some issues continue to give […]

EUROPEAN COMMISSION AGAINST RACISM AND INTOLERANCE (ECRI) publishes new report on Switzerland — International Law in Switzerland – Professor Andreas R Ziegler

UK appeals court rejects gender neutral passports

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UK appeals court rejects gender neutral passports

The UK Court of Appeal affirmed a lower court decision Tuesday rejecting gender neutral markers on passports.

Christie Elan-Cane argued for a policy to allow gender neutrality on passports in 2018. Elan-Cane wanted passports to have an “X” category for people who do not identify fully with either male or female. Elan-Cane argued the current binary gender disclosure policy violates Section 22 of the Gender Recognition Act 2004, which protects transgender rights under Article 8 of the European Convention on Human Rights. The Convention criminalizes any official disclosure relating to a person’s gender history, without the individual’s express consent.

Elan-Cane claimed the policy was an unlawful breach of human rights, but in her judgement, Lady Justice King disagreed. King argued that the case concerned Elan-Cane’s private life, not the public. Though she noted, “the driver for change is the broad notion of respect for gender identity,” she, as well as a few other justices, stated that international public policy will ultimately drive change.

Currently, a few countries offer non-binary gender identity choices on their passports, including Australia, Austria, Canada, Denmark, Germany, Iceland, Nepal, Pakistan and Uruguay. The UK recognizes these gender neutral passports as valid.

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USA: Federal judge allows transgender discrimination lawsuit against North Carolina officials and universities to proceed

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USA: Federal judge allows transgender discrimination lawsuit against North Carolina officials and universities to proceed

A judge for the US District Court for the Middle District of North Carolina on Wednesday rejected state officials’ and universities’ arguments to dismiss a transgender discrimination lawsuit. The lawsuit alleges the North Carolina State Health Plan for Teachers and State Employees (NCSHP) discriminates against transgender employees because it excludes coverage for gender dysphoria.

First, Judge Loretta Biggs rejected the defendants’ claim that plaintiffs lack Article III standing to sue. Biggs explained, “Article III traceability is not so rigid,” and that “traceability merely requires a causal connection between the defendant’s conduct and the plaintiff’s injury.”

Second, Biggs decided parent plaintiffs are within the class of people protected under Title IX of the Education Amendments of 1972. The parent plaintiffs can continue with the claim along with their children.

Third, Biggs denied the defendants’ sovereign immunity argument against plaintiffs’ Affordable Care Act claim. Biggs stated sovereign immunity does not apply because of the Civil Rights Remedies Equalization Act, which provides:

A state shall not be immune … for a violation of section 504 of the Rehabilitation Act of 1973, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.

Lastly, Biggs denied the defendants’ motion to dismiss the plaintiffs’ Equal Protection claim under the Fourteenth Amendment. Defendants’ argued the health plan exclusion is based on a medical diagnosis, not gender or sex. Biggs explained the health plan’s exclusion denies coverage for gender dysphoria, which is a diagnosis that only results from a dissonance between gender identity and sex assigned at birth. Biggs stated, “the characteristics of sex and gender are directly implicated; it is impossible to refer to the Exclusion without referring to them.”

Biggs’ ruling allows the case, Kadel v. Folwell, to go forward to trial.

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