State ordered to pay $321,224 in legal fees over Idaho’s transgender birth certificate lawsuit

Lawsuit came after the Idaho Legislature passed House Bill 509 in 2020

By: - August 11, 2022 4:00 pm
Idaho Capitol Building

Idaho State Capitol building on March 23, 2021. (Otto Kitsinger for Idaho Capital Sun)

A federal judge has ordered the state of Idaho to pay $321,224.50 in legal fees stemming from a lawsuit over a bill the Idaho Legislature passed in 2020 regarding birth certificate changes.

The issue went before the Board of Examiners Subcommittee meeting Tuesday and will go to the full board for a vote in the Aug. 16 meeting. The state Board of Examiners is made up of the governor, attorney general, state controller, and secretary of state. The subcommittee is made up of appointees from those elected officials’ offices.

The subcommittee’s motion Tuesday approved the request for payment, but referred the funding request to the Legislature as a supplemental appropriation, rather than pay it through the Constitutional Defense Fund, according to subcommittee member Brian Benjamin of the Controller’s Office.

Since its inception, the Legislature’s Constitutional Defense Fund has paid out more than $3 million in legal fees after losing court cases, most of which have been in the last eight years, according to Boise State Public Radio.

The Board of Examiners will consider the motion during its meeting next week on the consent agenda.

Lawsuit challenged Idaho Legislature’s 2020 House Bill

The lawsuit in question came after the Idaho Legislature passed House Bill 509 in 2020, which would have required vital statistics be recorded on a birth certificate and outlined ways a birth certificate could be amended. It would have prevented transgender people from changing the sex on their birth certificate.

The bill came after a 2018 federal decision that found preventing people from changing their birth certificate violated the Equal Protection Clause of the U.S. Constitution.

After Gov. Brad Little signed the 2020 law, the plaintiffs in a case against the state asked the court to require the Idaho Department of Health and Welfare to allow transgender people to amend the sex on their birth certificates.

On June 1, 2020, a federal magistrate court barred IDHW from automatically rejecting applications from transgender individuals to change the sex listed on their birth certificates and required the department to “institute a meaningful and constitutionally-sound process for accepting, reviewing, and considering applications from transgender individuals to amend the gender listed on their birth certificates,” according to the order.

The state later tried to argue that a transgender person could get a court order to change their birth certificate, but a federal judge disagreed with their process.

“The plain language of the statute, as quoted, forecloses any avenue for a transgender individual to successfully challenge the sex listed on their Idaho birth certificate to reflect their gender identity,” U.S. Magistrate Judge Candy Dale wrote in her Aug. 7, 2020, order. She found that IDHW was not complying with her June 1, 2020, order.

Ultimately, the plaintiffs succeeded and requested the state pay their legal fees and attorneys fees. In June, Dale did not grant the plaintiffs’ initial request of $447,783, but instead settled on $321.224.50.

In a letter from Deputy Attorney General Steven Olsen to the State Controller’s Office on Aug. 4, Olsen asked that the matter be decided at the Aug. 16 Board of Examiners meeting.

“(The defendants) request the Board authorize payment of the $321,224.50 award, plus accrued interest at the rate of 2.14% as provided in the court order. Any delays in payment of this amount will result in the State being responsible for the additional interest on this amount at that rate,” Olsen wrote.

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