Idaho Has Very Normal Idea For How To Enforce Absurd Bathroom Bill — DNA Tests!
Sure, just test everyone's DNA, this will work out great.
Earlier this year, the Idaho Legislature passed an absolutely batshit bill that would literally send trans people to prison for up to five years for using the bathroom (or locker room, or changing room, or whatever “single gender space”) in line with their gender identity. This is perhaps the most far-reaching “bathroom bill” yet, as it applies not just to bathrooms on state property, but on private property as well.
Alas, as excited as the absolute worst people in the state are to attempt to frame their deep-seated bigotry and desperation to feel like there’s a group of people to whom they can be legally superior as something meant to “protect women,” there are a few issues with the plan. Namely that it is entirely unenforceable without some fairly extreme measures.
That would be why Chief US District Judge for the District of Idaho Amanda K. Brailsford blocked the measure on Tuesday in response to a lawsuit from six trans people who argued (correctly!) that it violated their constitutional rights to equal protection and shielding their private information. However, Brailsford said it was unnecessary to even rule on any of those, because their third claim, that the law was “unconstitutionally vague,” was so blatantly obvious.
After all, how would such a ban even work logistically? Would they require businesses to hire official genital inspectors to post outside every restroom? That would be unpleasant for everyone, and also ignores the fact that gender affirming surgery exists, as do intersex people. They also can’t check people’s ID cards for proof, as many trans people have their correct gender identity on there, rather than the gender they were assigned at birth. They can’t go by looks, that’s for sure. After all, not only can you not always tell, but there have been several well-publicized incidents in which transphobic lunatics have harassed cisgender women they believed were trans for using the bathroom in public. Like that time Lauren Boebert and Nancy Mace went ballistic because they thought they saw transgender Rep. Sarah McBride (D-Delaware) in the women’s room at the Capitol building, but it turned out to just be a random cis lady.
What is a bigot to do?
Well, Idaho Solicitor General Michael Zarian did have one idea. DNA tests.
[Lambda Legal attorney Kell] Olson, a trans man, told the judge that if officers asked for his ID card, it lists him as a male. Then Brailsfield noted that most of the suing transgender Idahoans have state-issued ID cards that align with their gender identity.
[Michael] Zarian, the Idaho solicitor general, suggested to the judge that enforcement of the law would be easy “because there is DNA testing.” When the judge pressed him on whether a trans person will need to consent to that testing, Zarian said not necessarily but that he doubted that people will be asked to undergo DNA testing on the spot. But Olson said DNA testing largely requires a warrant.
It does. It also takes about two weeks to process, which some might say is a pretty long time to wait to use the bathroom.
Zarian attempted to argue that the bill was simply about protecting people’s safety and privacy — a fairly difficult thing to do when you are suggesting DNA testing people who are just trying to pee — and not about hurting trans people, which it very obviously is.
“The point is not that transgender people are more likely to commit safety violations. The point is that men in women’s restrooms are more likely to commit safety violations,” he said, suggesting that cisgender men might pretend to be trans women in order to get into women’s bathrooms and ignoring the fact that, under this law, they could just as easily pretend to be trans men. He argued that the state has an obligation to protect people’s naked bodies from being seen by people of the opposite sex, claiming that this would be possible because sometimes bathroom stalls have “gaps.”
But if that is the issue, then why does the law also cover single stall bathrooms? Where is the “privacy” issue there?
For what it is worth, I have been going into women’s bathrooms for my entire life and have yet to see a naked person. However, I have also never pressed my face up against the gap in a bathroom stall, and would hope that doing so would be some kind of illegal for anyone, regardless of their gender identity. Frankly, I would also hope that there would be some rules about swanning around the women’s room at The Cheesecake Factory in one’s birthday suit as well. As a frequent user of public women’s rooms, I have to say that’s a whole lot weirder than a trans woman peeing next to me in the next stall (which, for the record, is not weird at all).
Even the cops were opposed to the bill on the grounds that it would be ridiculously unenforceable.
“Officers responding to a complaint would be placed in the difficult position of determining an individual’s biological sex in order to enforce the statute,” Idaho Fraternal Order of Police President Bryan Lovell wrote in a letter to lawmakers while the law was initially being debated. “In many circumstances, there is no clear or reasonable way for officers to make that determination without engaging in questioning or investigative actions that could be viewed as invasive and inappropriate.”
You think? I would also have to assume that even in Idaho cops have more pressing concerns than determining whether a cis woman who has PCOS could possibly have been born with a penis. Or dealing with people pissing themselves in public on the regular.
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Raúl Labrador, Idaho’s attorney general, said that he plans to appeal the ruling.
“This is a results-driven decision that misapplies the law, confuses the issues, and misrepresents the position of the State,’’ he said in a statement. “Biological sex is not vague, and neither is this law.”
Except for how it is.
These laws are not about protecting anyone’s privacy, they are about allowing bigots to frame their transphobia as a concern for public safety. It’s not that they want trans men to use the women’s room or for trans women to use the men’s room, which would pretty obviously cause far more of a disturbance than people just using the bathrooms of the gender with which they identify — it’s that they want them to just not exist, period. They want them to go away, to stay out of public life, and they think that by making laws barring them from even going to the bathroom, they can accomplish that.
But, unfortunately for them, as evidenced this week, the “public safety” argument falls apart with even the slightest ounce of scrutiny.
PREVIOUSLY ON WONKETTE!
<Would they require businesses to hire official genital inspectors to post outside every restroom?>
Not the GI Bill we need right now.
"If trans people bother you more than Nazis, re-evaluate." - Dave Bautista