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Senate Bill 1016 — Contractors, facilities, bio sex

Senate Bill 1016 — Contractors, facilities, bio sex

Parrish Miller
January 24, 2023

Bill Description: Senate Bill 1016 would prohibit local units of government from requiring their contractors to offer mixed-sex bathrooms.

Rating: 0

NOTE: Senate Bill 1016 is similar to Senate Bill 1003, introduced earlier in the 2023 Legislative Session. 

NOTE: The amendment to Senate Bill 1016 does not change the rating or substantively change the analysis of the bill.

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 1016 would amend Section 67-2802A, Idaho Code, by adding a new subsection, which says, "No public entity or political subdivision of the state of Idaho shall require a contractor engaged in public works construction governed by this chapter to provide a multiple-occupancy restroom, shower facility, or changing room that is owned by or under the control of the contractor on any basis other than biological sex."

As amended, the new language would say, "...on any basis other than sex, as defined in section 39-245A(3), Idaho Code." This section defines sex as "the immutable biological and physiological characteristics, specifically the chromosomes and internal and external reproductive anatomy, genetically determined at conception and generally recognizable at birth, that define an individual as male or female." This is an appropriate definition.

This language is clearer than what is found in Senate Bill 1003, and it appears to apply only to the bathroom facilities provided by the contractor (presumably for its own employees). It does not appear to apply to government facilities built or remodeled by the contractor. 

This new language appears to prevent local governments from imposing 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 change their gender designation on their birth certificate, the designation may not correspond to the person's biological sex.


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.


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