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Senate Bill 1387 — Birth certificates, sex indicator

Senate Bill 1387 — Birth certificates, sex indicator

Parrish Miller
March 6, 2020

Bill description: SB 1387 requires the state registrar of vital statistics to alter birth certificates and conceal the history of alteration based on the requests of any citizen who confuses “sex” with “gender identity.”

Rating: -3

Does it in any way restrict public access to information related to government activity or otherwise compromise government transparency or accountability? Conversely, does it increase public access to information related to government activity or increase government transparency or accountability?

When government agencies are assigned the task of maintaining official documents or records, it is understood that those records are immutable and must be maintained in their original form with their original data for research and transparency purposes. This principle applies to all records, whether they are spending records, memos, correspondence, emails, or other documents. 

In recent years, birth records have been more or less viewed as subject to alteration, and SB 1387 codifies this practice in a particularly egregious manner. 

It allows an individual to compel the state registrar of vital statistics to alter a certificate of live birth by presenting "a declaration that the individual's sex indicator on the Idaho certificate of live birth does not match the individual's gender identity." 

An individual's sex is not determined by their opinions or mental state. It is a matter of genetic and biological characteristics, which cannot be altered by an individual's desires. A law that requires the state registrar to act as if this were not the case is to create an official document based on preferences, not facts.

Moreover, SB 1387 requires that "the amended certificate of live birth issued under this section must not be marked amended, must not refer to the original certificate of live birth sex, and must show the amended sex indicator as requested." Any files or documentation of the alteration are likewise required to be hidden away in "a sealed file that may be opened only by an order from an Idaho court of competent jurisdiction."

SB 1387 undercuts the purpose of maintaining records of vital statistics by allowing one of the most vital and fundamental of records to be dishonestly altered, in direct violation of scientifically verifiable reality. 

On a practical note, an individual's sex is one of the most essential and relevant medical data points, and distorting this point could seriously undermine public health and other data-driven analysis efforts. 


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?

The statement of purpose for SB 1387 says the purpose of the bill is "to comply with a federal district court order." This is a textbook example of "yielding to federal blandishments," and it is not only contrary to Idaho law, it is contrary to logic and reason. Idaho legislators have a duty to their constituents and duty to the truth, and these duties supersede the politically driven ruling of a court that tries to contravene reality. 


SB 1387 is being amended to add a provision stating that the law will only become effective once "the Idaho attorney general determines that a court of competent jurisdiction has issued an injunction against enforcing the provisions of section 39-245A, Idaho Code."

That section of Idaho Code doesn't exist yet, but it would be created by HB 509, a bill that disallows the alterations of vital records authorized by SB 1387. By creating a competing law that takes effect upon the mere issuance of an injunction, the Attorney General may have less incentive to defend the provisions of HB 509 in court, since they will have been effectively replaced by the provisions of SB 1387.

This amendment serves to give the courts — in all likelihood, a federal court — the ability to fundamentally alter Idaho's law and public policy, merely by issuing an injunction. 


Analyst’s Note: This rating reflects amendments made to the bill on 3/16.

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