A tumultuous Week 7 focused on discussion and debate around removing the term “gender identity” from the Iowa Civil Rights Code. HSB 242, currently HF 583, was filed last Thursday as we left the Capitol, and passed through subcommittee and committee on Monday, setting it up for floor debate this Thursday. The Senate also moved SF 418 this week, which is a companion bill, and was debated basically at the same time the House debated.
This has been an intense issue with lots of input from Iowans. I have received over 3,000 emails, both for and against this bill during this past week. Any interesting observation I made was that the vast majority of emails I received in opposition to the bill were from women. There have been protests multiple days this week, with about 2,500 people in the Capitol loudly expressing their First Amendment rights in opposition to the bill on Thursday morning.
Protecting girls’ sports and safe spaces like bathrooms was the primary reason advocates used for the need to pass this bill. The rationale is that previously laws passed to do these things are in legal jeopardy because of gender identity protections. I believe it is essential to protect girls’ sports and that girls and women should be safe in private places like bathrooms and jail cells. However, I don’t believe that this bill will achieve those goals, and it opens the door for significant legal challenges which, in my opinion, will fail under the scrutiny of the courts.
There are at least three places where I believe the bill is problematic.
One: on page one separate accommodations are defined as “not inherently unequal.” The separate but equal doctrine determined in the 1896 Plessy v Ferguson Supreme Court case was reversed in the 1954 Brown v Board of Education. The separate but equal doctrine drove racial segregation by providing a legal justification for separate accommodations. The 9-0 court ruling in Brown stated that “separate is not equal.”
Two: the bill requires that the sex determined at birth must remain on the birth certificate regardless of whether the individual has transitioned to the other gender. This provision, in my opinion, violates the Equal Protection Clause of the 14th Amendment because an individual born, transitioned, and living in Iowa would be treated differently than an individual born and transitioned in another state, but now living in Iowa.
And third: I do not believe that it is constitutional to take away protections from a class of citizens after protections have been granted. In Romer v Evans the court determined that a Colorado constitutional amendment removing protections based on sexual orientation violated the Equal Protection Clause. This bill would do the same.
While I am 100% in support of protecting girls’ sports and providing safe spaces for women, I could not support this bill for the reasons stated above. This bill will not assure those protections for girls and women, and I believe the ultimate decision on these issues will be made by federal courts.
The Senator says he is 100% for this and that but offers nothing that will effectually do so and would not fail anyway for the same reasons he castigates the now law in question. Essentially he says he supports something but doesn’t offer a defense of it. If something was added by statute it ought to be able to be removed by statute. No former legislature can control a latter legislature by ordinary statute. If that were not true then every piece of legislation is a constitutional amendment.