Idaho's bill is among the strictest of 30 similar pieces of Republican-backed legislation proposed this year. Legal experts said it could be vulnerable to challenges.
The Idaho House of Representatives on Tuesday passed legislation to make it a crime punishable by life in prison for a parent to seek out gender-affirming health care for their transgender child.
The bill is among 29 pieces of Republican-backed legislation nationwide proposed so far this year to curtail health care for transgender youth, and it coincides with dozens of additional bills seeking to limit what can be discussed about gender identity and sexual orientation in schools and restrict transgender athletes in school sports.
But LGBTQ advocates and legal experts say the Idaho proposal differs by criminalizing cases of transgender children traveling to other states to obtain certain medical procedures.
“We are seeing the severity of those policies start to really ramp up,” said Sam Ames, director of advocacy and government affairs at The Trevor Project, a nonprofit organization that focuses on preventing suicide in the LGBTQ population.
A directive by Texas Gov. Greg Abbott last month ordered child welfare authorities to “conduct a prompt and thorough investigation” of any reported instances of minors undergoing “elective procedures for gender transitioning” as potential child abuse. Multiple investigations are now underway into Texas families with transgender children, with the threat of decades in prison for anyone convicted of child abuse.
In Idaho, HB 675 would amend the state’s statute prohibiting genital mutilation to make it a felony to provide gender-affirming health care, such as puberty blockers, hormone therapy and sex reassignment surgeries. But the bill goes further than other GOP efforts targeting transgender health care: A parent or guardian would also be guilty of a felony if they travel with their child to another state for the purpose of obtaining gender-affirming health care. Those found guilty could face up to life imprisonment. Idaho Rep. Bruce Skaug, the Republican sponsor of the bill, said Tuesday on the floor of the Legislature that his proposal is necessary because minors are too young to make life-altering decisions about their bodies. He also cited the Texas government’s recent move to consider gender-affirming medical treatments a form of child abuse as evidence that Idaho should act as well.
“If we do not allow minors to get tattoos, smoke cigarettes and drink alcohol or sign legal contracts,” he said, “why would we allow them to make decisions to cut away organs based on their feelings during puberty time?”
Skaug did not respond to requests for comment.
The bill cleared the Idaho House by a vote of 55-13 on Tuesday. It now heads to the Idaho Senate, where Republicans hold a 28-to-7 majority over Democrats.
Four experts who reviewed the legislation told NBC News that the Idaho proposal could be vulnerable to legal challenges. It is not unlike laws from a prior generation, including the criminalization of interracial couples traveling to another state to get married, the experts said, which was struck down by the U.S. Supreme Court. People already take trips to other states to do things that are legal that they can’t do where they live — from consuming cannabis, gambling or buying fireworks to obtaining an abortion — and there’s little states can do to stop that because of constitutional limits on restricting interstate travel.
The bill presents “complicated questions whether Idaho could, in that fashion, use their lawmaking authority to try to prevent people in Idaho from taking advantage of the differing law of another state,” said David B. Cruz, a law professor at the University of Southern California.
Andrew Koppelman, a Northwestern University law professor, said a fatal flaw of the legislation is another section that stipulates only males can receive testosterone from a doctor. That would violate federal prohibitions on gender-based discrimination, he said.
“The constitutionality of this bill is in doubt, even aside from the provision that says that you can’t travel out of state,” Koppelman said.
Last year, Arkansas became the first state to enact a law prohibiting gender-affirming medical care for trans youth, according to the American Civil Liberties Union. A federal court blocked the law from taking effect, in response to an ACLU-backed lawsuit, but 19 other states introduced similar legislation.
Last month, Alabama’s state Senate advanced a bill that would make gender-affirming medical treatments for youth a felony punishable by up to 10 years in prison.
Anti-LGBTQ legislation has been increasing at the state level in recent years, with 17 bills signed into law in 2021, more than the previous three years combined, according to the Human Rights Campaign.
In a recent survey by The Trevor Project, 85 percent of trans and nonbinary youth said debates about state laws restricting the rights of transgender people negatively impacted their mental health.
“This national political assault is not really about trans youth,” Ames, of the Trevor Project, said. “It’s very clear that this has become a useful political wedge issue in a hotly contested political climate. The fact that we are playing politics with young people’s lives like this is an indication to me that we are dealing with the worst kind of politics we know in this country, which is the kind that assumes an acceptable risk of casualties.”
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