Birth certificate gender change fight not yet over

By Melissa Davlin, Idaho Reports 

The fight over changing gender markers on birth certificates isn’t yet over.

The Idaho Department of Health and Welfare Board of Directors voted to require sign-off from a medical or mental health professional for minors who want to change the gender markers on their birth certificates.

An earlier proposal would have required all applicants, regardless of age, to get medical approval before changing their birth certificates. That original draft came from the legislature, though it wasn’t clear at the meeting which lawmakers, or how many, supported the idea. 

After discussion, deputy attorney general Nicole McKay drafted language to make the proposal specific to minors.

Last year, IDHW changed its rules to allow applicants to change the gender marker on their Idaho-issued birth certificates. The change was the result of a 2017 lawsuit from two plaintiffs who were not allowed to change their birth certificate. Read the complaint here.

Sen. Fred Martin, a member of the board and chairman of the Senate Health and Welfare Committee, told the board that the discussion over changing birth certificates has been “contentious” among his fellow lawmakers.

“Individually, I’m most concerned about minors. So I would hope that what the board does and comes forward would most affect those that need the most protection. To me that would be a minor,” Martin said. “Are we going to have consensus? No. But I would encourage something to put a step between the individual and that change, especially as it relates to minors.”

James Aydelotte, state registrar at the Bureau of Vital Statistics, said of the 101 applications for gender change since April 6, 2018, 15 of those have been for minors younger than 18 years old.

Peter C. Renn, Kara Ingelhart, and Monica Cockerille, the attorneys who represented the original plaintiff in the 2017 lawsuit, wrote to the board to object to the original proposal.

“The proposed revisions are not consistent with the Court’s March 5, 2018 order,” the attorneys wrote. “The Court recognized the ‘potential implications of restrictions and restraints IDHW may place on the ability of transgender people to apply for and receive approval of applications to change the sex listed on their birth certificates.’”

“It then cautioned against any rule that would ‘subject one class of people to any more onerous burdens than the burdens placed on others without constitutionally-appropriate justification — for instance, to apply for a change in paternity information the applicant is not required to submit medical evidence, such as DNA confirmation, to prove paternity or non-paternity,'” the letter continued. “Despite the Court specifically citing the example of ‘medical evidence’ as an unjustified burden, the proposed revision would now expressly require such ‘medical evidence.’”

The board debate focused on whether a birth certificate change is a medical decision or a family decision, and how much the government should be involved in it. Some debate also centered on potential litigation, which the board discussed in executive session. 

Board member Timothy Rarick, who made the motion to approve the amended rule change, said minors often question gender roles and identity as a normal part of development, but most often settle on an identity that conforms with their biological sex.

But some were skeptical that the change was needed.

I and the ACLU would be very interested in understanding what that rationale is,” Kathy Griesmyer, policy director for ACLU-Idaho, told Idaho Reports at the meeting. “At this point, the system seems to be working, so why put people through an additional burden?”

Emilie Jackson-Edney, who also attended the meeting, said she isn’t entirely opposed to the idea of requiring a medical sign-off. Jackson-Edney pointed to federal documents, such as passports, which currently require an affidavit for gender changes.

That said, transgender patients seeking health care in rural Idaho could run into issues, both with general access and with finding providers who understand trans-specific issues, Edney-Jackson said. This proposal, she added, could put an additional burden on an already marginalized community.

It could be really difficult for them to access that kind of health care,” she said. 

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About that transmittal letter…

By Melissa Davlin, Idaho Reports

When Gov. Brad Little posted the transmittal letter for the Medicaid work requirements legislation, several reporters (this one included) noticed that the letter itself read like a veto. It outlined multiple issues Little had with the bill, and instructed lawmakers to continue working on the issues.

Idaho Reports did a public records request for all drafts of the transmittal letter, as well as communications regarding the letter.

Those drafts show that Little’s staff wrote the letter the day before he signed it without the key line “with my approval,” and didn’t insert that line until the morning of. Instead, an ellipsis acted as a placeholder in that sentence while Little’s staff members worked out the rest of the letter.

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An April 8th draft of the Senate Bill 1204 aa, aaH transmittal letter.

 

That key phrase “with my approval” wasn’t added until April 9, the morning Little released his letter. In an 9:36 am e-mail, two hours before the letter was posted,  chief of staff Zach Hauge asked communications director Emily Callihan to “add language that the Governor has signed.”

Idaho governors have three options on how to handle a bill: Sign it, veto it, or let it become law without their signature. (The latter is often used to show disapproval.)

In an interview with Gov. Brad Little that aired on April 26th, Idaho Reports asked if these drafts were an indication that he hadn’t yet decided how he would handle the legislation. He said no.

“The transmittal letter means by its very nature that I’m signing the bill,” he said. “You look at every transmittal letter I wrote, I only sent a transmittal letter if I had an issue with that bill.”

Little acknowledged in both the letter and in the Idaho Reports interview the multiple issues he saw with the bill. You can read the final letter here. 

In the Idaho Reports interview, Little said he does not believe the federal government will approve all the waivers, particularly the work requirement and the copay provisions.

“Frankly, CMS and the US Department of Health and Human Services, they’re having a change of heart on some of those issues, so it’s hard to tell,” Little said.  

For the full interview, watch the April 26th episode of Idaho Reports at idahoptv.org/idreports.

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Analysis: Legislature cedes rulemaking approval to Little

By Melissa Davlin

Over the last several years, the Idaho Legislature has paid closer attention to the administrative rulemaking process — a critical bureaucratic function of the government in which departments and divisions create rules that specify how certain statutes are carried out.

But in an attempt to center more power with the Legislature, the House and Senate just surrendered significant authority to Gov. Brad Little.

At the end of the 2019 session, the legislature failed to reauthorize the state’s existing rules, as they normally do every year. The reason: A fight between the House and Senate over how those rules should be approved. Currently, just one body’s vote ensures a rule is approved. The House wanted both bodies to sign off to save a rule from rejection, giving the legislature more control over the process.

Without any action from Little and his staff, all 8,000-plus pages of those administrative rules would expire at the end of the fiscal year on July 1.

Instead of calling a special session to make lawmakers finish their homework, however, Little is using his executive authority to re-up those rules. And in the process, “Governor Little ultimately will make the decision before July 1 whether to let a rule expire,” according to a Tuesday press release from his office. 

Administrative rules have the full force of law, and cover a wide range of topics — which immunizations school children need, what types of medications pharmacists are allowed to dispense, what an electrician needs to do to get a license. Common core curriculum is in administrative rules, as are the hotly debated climate change standards.

While Little has said he didn’t want this to happen, and that he doesn’t plan any major changes, he still has ultimate authority over which rules will carry over into the next fiscal year.

Agencies will also get the chance to weigh in.

“Governor Little’s administration will use the unique opportunity to allow some chapters of Idaho Administrative Code that are clearly outdated and irrelevant to expire on July 1, 2019,” the press release states. “An agency must notify the Division of Financial Management (DFM) if it identifies a rule that could be eliminated. DFM will solicit public comment on any proposed rule elimination.”

In a fight over an obscure bureaucratic process, this could either set a wild precedent for future years, or teach the legislature to finish its chores before leaving to play.

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Renewing urban renewal

By Seth Ogilvie, Idaho Reports

The Idaho tax commission recognizes 86 urban renewal districts in Idaho. House bill 217 will significantly change how they operate.

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The bill has been characterized by many as an attack on the Boise library and stadium projects, but the other 86 districts will have to follow the same rules.

The significant change coming to urban renewal in Idaho is how much money is required to force a vote. A vote, after Governor Brad Little signed the bill, would now be necessary if 51% of the money used on a project was urban renewal money or “any other public funds, not including federal funds or federal funds administered by a public body.” The project would also have to exceed one million dollars.

The election would work much like a school bond election, but unlike a school bond election that requires 2/3rds of the voters to pass, these elections would require only 60% of people to approve the project.

Proponents of the bill argue this will create more civic engagement and accountability within the system. They say people who live within the urban renewal district would have greater control over how their tax dollars are spent.

Senator Maryanne Jordan thinks the bill will have unintended consequences because the law does not distinguish between urban renewal money and other public funds.

Sen. Jordan laid out this example; “a city saves $2,000,000 to remodel their City Hall. The urban renewal district contributes $30,000 to a public plaza outside the building. A plaza is not an exception under the statute, so the whole project is forced to a vote.”

The project would then have to be delayed until the next scheduled election, or a special election would have to be called. “The special election will cost more than the urban renewal contribution,” said Sen. Jordan, “for what amounts to 1.5% of the project.”

The election could also have an unintended impact on contractor availability and costs. Developing construction bids for city projects that are still uncertain may be unappealing to contractors, driving up prices or leaving cities without options for building their projects.

Over the next few months, local government officials across the state will likely meet with lawyers and experts to find out if any of these unintended consequences will come to their town.

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Voter initiatives and administrative rules bill DOA in Senate, Winder says

By Melissa Davlin, Idaho Reports

While the House was at ease to add in amendments to Senate Bill 1205 — changing the Senate legislation into a previously rejected House version that would force both bodies to approve administrative rules — Senate Majority Leader Chuck Winder told reporters in no uncertain terms that the amended bill was dead on arrival.

Why? First of all, the Senate had already rejected the House’s proposal about two months ago, Winder said. He also cited previous administrative rules fights, such as one over whether climate change should go into Idaho’s public school curriculum.

“In that case, I think common sense prevailed,” Winder said. He doesn’t want to give the House more authority over the rules.

Also dead on arrival? House Bill 303, which resurrects part of the previously vetoed voter initiative bill. Winder said he supports the idea of the legislation, which would require initiatives to have a fiscal note and funding source, as well as focus on a single topic. But, he said, it’s too late in the session to consider it. Expect it to come back next year.

Does the House have any recourse? They just passed their last appropriations bill — the budget for the State Board of Education — but they will have to approve the trailer bills for the Medicaid work requirements appropriations passed out of the joint budget committee on Tuesday.

In other words, this isn’t over yet. (But all signs point to sine die. And we all hope that’s the case.)

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What we know now

By Seth Ogilvie, Idaho Reports

The quote of this year’s legislative session, uttered in so many variations that it would be unfair to attribute it to one individual, was that “the people did not know what they voted for in November.”

As the session nears an end, it might be the time to entertain the idea that these legislators and lobbyists are right.

Rep. Megan Blanksma and the rest of legislative leadership promised a session with better communications and transparency. Instead, the legislature has delivered last-minute, almost secret meetings, they banned the people from photographing how their elected officials voted on critical amendments, and continued ahead with vastly unpopular legislation despite hoards of people testifying to the contrary.

Gov. Brad Little also promised a new level of transparency and competency. As he entered the office, Idaho citizens expected a younger, bolder version of C.L. “Butch” Otter, an Otter 2.0, the newer version with all the latest bells and whistles.

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This legislative session points to us having received an Otter Beta. In the state of the state, Little rolled out only one novel idea, the homeowner’s savings account. That idea currently sits in a drawer with little chance of going anywhere.

Otter could have given the rest of Little’s State of the State speech last year, and in fact, many of the ideas turned into law Otter had put in previous speeches. Teacher raises had been a core principle of Otter’s taskforce; the third-grade literacy initiative was one of Otter’s main talking points for years. If the governor’s office sat empty this year, it’s hard to imagine the legislative session going much differently.

Little did appoint new staff, and they are happy to tell you they have several new people in new positions, but a majority of the people in the high profile positions are Otter department heads and staffers who were merely moved to a new role. The titles are different, but the people are the same. The Otter team is still intact, just in slightly different positions.

That leaves the one significant change: Little’s use of the veto. Otter did have a few high profile hiccups, and it appears Little wanted in on the action.

Little vetoed the ballot initiative bill on Friday. In that veto, he made several claims, the first being that “the bills invite legal challenges that likely will result in the Idaho initiative process being determined by the liberal Ninth Circuit Court of Appeals.”

The veto also cited “the same Circuit that recently decided Idaho should pay for gender reassignment surgery for a transgender inmate serving time for molesting a child.”

Idaho Reports asked the governor’s office why the veto connected transgendered people to child molestation, and if Little believes that transgendered people and child molestation is related.

In a statement to Idaho Reports, the governor’s office said they didn’t want to expand on the veto “further than what is stated in his transmittal letter to the Legislature.”

At the beginning of the legislative session, Little told the press he would be incredibly open and transparent. Apparently just not on the most significant decisions he makes.

That leaves the people of Idaho not knowing if the governor thinks transgender people have a propensity for child molestation or what the topic has to do with a ballot initiative.

On Tuesday, Little signed into law the Medicaid sideboards bill. Signing the bill apparently was a surprise to whoever posts news on the governor’s official website. The website initially referred to the transmittal statement as a  “veto letter.” The letter was also published with large chunks missing. The mistakes were corrected soon after, but not before members of the public and press corps noticed. A call to Little’s office hadn’t been returned by the end of the day.

Even when Otter turned in his late veto, he turned in the complete statement and knew he was vetoing the bill rather than signing it.

This year is also the first in years that Idaho Reports didn’t have an interview with the governor during the legislative session. That isn’t for lack of trying. Idaho Reports had an interview scheduled with Little for Feb. 27th, but that week, Little’s office canceled, citing scheduling conflicts. Little’s office declined to reschedule, offering instead an interview after the session.

As we reach the end of the legislative session and entertain the question of whether people knew what they were voting for, it would probably be a good idea to ask if the legislature has been transparent and responsive to the people. Has the governor’s office been fresh, open, competent and laid out a bold new agenda? Then discuss whether people were informed when they voted.

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Who watches the watchers?

By Devon Downey

Freshman Senator C. Scott Grow has become the center of Idaho politics this year because of his initiative bill, S1159. Proponents argue it gives rural Idahoans more say while also modernizing the process. Opponents call it unconstitutional and punitive. Governor Little said in his veto letter that “the bills invite legal challenges that likely will result in the Idaho initiative process being determined by the liberal Ninth Circuit Court of Appeals”.

S1159 would’ve reduced the time petitioners have to gather signatures by two-thirds. It would’ve increased the percentage of registered voters needed in each district from 6%-10%. It would’ve also increased the number of districts required from 18-32, among other changes.

The bill saw a strong public backlash. The House tried to address the criticism and introduced a trailer bill, H296.  It took the house two days to craft, debate and, pass the legislation. H296 would’ve made it so that the time reduction is only half (270 days as opposed to 18 months) and made it so that instead of 32 districts being needed to sign on, 24 districts would’ve been required.

Together, the changes would’ve reduced the time allowed to gather signatures by half, increase the signatures needed by nearly 67%, and require 6 more legislative districts to qualify for the ballot.

These bills drew bipartisan condemnation from across the state, with four former Attorneys General, the previous Secretary of State, and multiple newspaper editorial boards to request this bill be stopped before the Governor vetoed the bills.

So how did legislation as unpopular as these two bills make it to the governor’s desk? Partially because of Idaho lawmakers fears of outside money.

Senator Mary Souza argued that the bills were needed because “big money, whether it is from within the state or outside the state and very professional management groups are being used to bring in high technology… to pinpoint votes all over the state.” When debating H296, Souza continued by quoting a LA Times article about a California labor union that invests in The Fairness Project (a political committee that spent over $500,000 in both itemized and in-kind contributions to Idahoans for Healthcare in favor of Prop 2). “That [union] is simply one example of national groups that are targeting voter initiatives across the country as a way to advance their own agendas.”

These concerns cross political ideology, but with how much of the debate focused on outside money coming to the initiative process, we started looking at how this impacts other elections. Candidates also need to raise money for their own elections. Presumably, any concerns about influence from contributions by those outside of the area should also carry over to the legislators themselves. That means legislators should be just as concerned about money that is contributed from outside of the state or their districts as they are about outside money for initiatives.

Grow being at the center of the initiative bills means that he should be sensitive to these concerns, right?

Combing through the campaign finance data shows two things. First, that Grow didn’t gather the 50 signatures to qualify for the ballot but instead opted to pay the $30 fee to the Secretary of State. Second, it turns out that a majority of his money came from outside of his district.

Grow raised an astounding $114,000 for his 2018 campaign. For context, that was more than the winning candidates for Secretary of State, Treasurer, Superintendent of Public Instruction, Controller, and Attorney General raised.

Of that $114,000, $102,525 were itemized contributions to his campaign; the rest were either in-kind donations or below the reporting threshold. 61% of his itemized contributions came from outside his district. If that number sounds familiar, it is because 61% is roughly the same percent that Proposition 2 passed with statewide. Just over 55% of all of his contributions came from outside of District 14.

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While this is a large amount of money for a legislative race, it should be noted that one of his primary opponents raised over $80,000 and another over $30,000. District 14’s Republican Primary for the state senate was highly competitive, with five candidates receiving more than 10% of the vote. Grow won the primary receiving only 35.2% of the primary vote.

Grow’s main argument for his bill was that rural Idahoans deserve to be a part of the process, but it is hard to classify his own district as rural. District 14 has the largest number of voters, and because of the growth of the Treasure Valley, has seen many new residents since the last time districts were drawn.

The totals in District 14 also implies that his district likes having the initiatives. Both propositions passed in District 14, and over 98% of ballots cast in the district voted on the propositions.

Rep. Heather Scott noted in her floor debate against the initiative bills that Idaho’s demographics are changing, and that seeing the writing on the walls is not a good enough reason to change constitutional protections. She also expressed her disappointment that her constituents and their policy ideas are rarely taken up by either chamber of the legislature.

As supporters of Proposition 2 noted, having frequent ballot initiatives like California can be problematic. Reclaim Idaho founder Luke Mayville told the state affairs committee that it should be hard to get an initiative to qualify for the ballot so that doesn’t happen.

Money and influence in politics are universally panned, but as the Supreme Court has clarified, political spending and campaign contributions are considered protected speech under the First Amendment. While none of the money raised by either Proposition 2 or Senator Grow for their campaigns was illegal, concerns about out of district and out of state money are rampant.

For legislators who feel that there is undue influence on the ballot box by outside money, a better way to deal with the problem directly may be to tighten up the campaign finance rules.

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