Bill Description: Senate Bill 1003 would prohibit local units of government from requiring their contractors to offer mixed-sex bathrooms.
Does it give government any new, additional, or expanded power to prohibit, restrict, or regulate activities in the free market? Conversely, does it eliminate or reduce government intervention in the market?
Senate Bill 1003 would amend Section 67-2802A, Idaho Code, by adding a new subsection, which says "a bidder, offeror, contractor, or subcontractor shall not be required to provide access to a multiple-occupancy restroom, a multiple-occupancy shower facility, or a multiple-occupancy changing room on any basis other than biological sex."
This change is largely positive as it prevents burdensome regulations, but it should be noted that there is a new provision stating, "For purposes of this subsection, 'biological sex' means the physical condition of being male or female as stated on a person's birth certificate." Because the state of Idaho allows individuals to easily change their gender designation on their driver's license, this designation may not correspond to the person's actual biological sex. This means that the new language may have a limited impact.
Does it violate the principles of federalism by increasing federal authority, yielding to federal blandishments, or incorporating changeable federal laws into Idaho statutes or rules? Examples include citing federal code without noting as it is written on a certain date, using state resources to enforce federal law, and refusing to support and uphold the Tenth Amendment. Conversely, does it restore or uphold the principles of federalism?
Unfortunately, the change implemented by the new language discussed above is largely negated by the insertion of an exception: "Unless specifically required pursuant to applicable federal law or regulation…"
Idaho statutes should not vaguely require compliance with federal laws or regulations, especially without language to limit such references to a law or regulation as it existed at the time it was incorporated into Idaho statute.
It is especially troubling that no specific laws or regulations are being incorporated here, but rather the state is broadly subordinating its own laws to whatever "federal law or regulation" may be interpreted as imposing an applicable requirement.