Photo by Laura Belin from a rally outside the Iowa capitol on March 5, 2023
UPDATE: On February 6, Republicans advanced this bill from an Iowa House subcommittee. A few hours later, the full House Education Committee amended the bill to remove the driver’s license section, then approved it along party lines. Democrats requested a public hearing, which took place on February 12 (video). Following committee passage, the bill was renumbered as House File 2389. Original post follows.
Governor Kim Reynolds didn’t give LGBTQ Iowans even one full day to celebrate the downfall of a bill to remove gender identity protections from Iowa’s civil rights law.
The latest legislative proposal from the governor’s office would lay the foundation for “separate but equal” treatment of transgender Iowans and what one advocate called an “astonishing government violation of privacy rights.”
Although House Study Bill 649 contains some language designed to bolster the state’s potential defense in court, there’s no way the governor’s newest effort to codify discrimination against LGBTQ people could be constitutional.
DEFINITIONS THAT ERASE LGBTQ EXISTENCE
House Study Bill 649 begins with a set of definitions to be used when interpreting Iowa statutes. “Sex” is defined as a person’s sex assigned at birth. “Women,” “girl,” “man,” and “boy” are all defined in a way that excludes transgender or nonbinary people.
“Mother” and “father” are also defined in terms of sex assigned at birth. That could create “complications for the children of same-sex parents,” the LGBTQ advocacy group One Iowa Action noted in a written statement.
The bill would require state government agencies and local government entities, including cities, counties, townships, and school districts, to “identify the sex of each person” as “either male or female” when collecting “vital statistics for the purpose of complying with state antidiscrimination laws, or for the purpose of gathering accurate state public health, crime, economic, or other data.” Again, transgender or nonbinary people would be erased.
Pete McRoberts, policy director for the ACLU of Iowa, told Bleeding Heartland the new standard for data collection “eliminates the ability for a city or any state agency to accurately report violence against transgender people to the state of Iowa.”
The bill’s impact on intersex Iowans is unclear. One provision states, “A person born with a medically verifiable diagnosis of disorder or difference of sex development shall be provided the legal protections and accommodations afforded under the federal Americans with Disabilities Act of 1990 and applicable state law.”
Other groups could not hope for such protections and accommodations.
A FRAMEWORK TO JUSTIFY SEGREGATION
Two sentences from the first page of HSB 649 are particularly alarming from a civil rights perspective: “The term ‘equal‘ does not mean ‘same‘ or ‘identical.'” And the very next line: “Separate accommodations are not inherently unequal.”
The callback to Jim Crow era segregation was unmistakable. And the governor’s intent to discriminate against transgender or nonbinary Iowans is clear: “Any state law, policy, or program that prohibits discrimination on the basis of sex shall be construed to forbid unfair treatment of females or males in relation to similarly situated members of the opposite sex.”
In other words, trans women can’t expect to be treated like other women. They can demonstrate discrimination only if they are treated differently from men.
Not only that, this language could call into question any program designed to remedy sex discrimination against women.
Reynolds signed a school “bathroom bill” into law last March. But HSB 649 indicates the governor wants to go much further in denying accommodations for trans people across the state.
Notwithstanding any provision of state law to the contrary, distinctions based on sex, including but not limited to in prisons or other detention facilities, domestic violence shelters, rape crisis centers, locker rooms, restrooms, and in other contexts where health, safety, or privacy are implicated resulting in separate accommodations, are substantially related to the important government objectives of protecting the health, safety, and privacy of the persons in these contexts.
I agree with One Iowa Action’s analysis: this language “could be interpreted to require government-owned, operated, or funded buildings to require transgender people to use the wrong single-sex restroom, including at colleges, libraries, and the DMV.” The group further observed that this provision
could also be interpreted to discriminate in violation of the federal Violence Against Women Act (VAWA), which prohibits discrimination based on gender identity. Requiring government funded or run domestic violence shelters and rape crisis centers to treat transgender women inconsistent with their gender identity places federal funds at risk.
The Iowa Coalition Against Domestic Violence and Iowa Coalition Against Sexual Assault are both registered against the bill.
Other parts of HSB 649 show Reynolds doesn’t merely want to exclude trans Iowans from certain spaces, but would intrude on their privacy in many aspects of daily life.
SPECIAL DOCUMENTS FOR TRANS IOWANS
The bill would require birth certificates to indicate each person’s sex assigned at birth. A transgender person seeking a new document would have to provide “a notarized affidavit” by a physician and surgeon stipulating “that by reason of surgery or other treatment the applicant’s sex designation has changed.” Even then, the new birth certificate would show the person’s sex assigned at birth as well as the new “designation.”
The ACLU’s McRoberts pointed out, “For the basic rights of transgender people, it appears to remove any way for the law to fully recognize someone who goes through a gender transition.” He added, “The bill prevents a transgender person from letting their own birth certificate fully reflect their transition.”
It means that the small number of people in Iowa who undergo this significant medical process must put in on their birth certificate, less like the identification of a person and more like title to property. There is no reason for this. At its core, it means a person can not truly transition if they need to.
But wait, there’s more!
In what McRoberts described as “an astonishing government violation of privacy rights,” the bill would require driver’s licenses of transgender Iowans to display the person’s sex assigned at birth as well as their current sex.
Whereas most people rarely need to show anyone their birth certificate, numerous routine interactions require a driver’s license (the most common form of photo ID). One Iowa Action’s statement noted, “This will ultimately require transgender people to out themselves anywhere they have to present their ID (voting, picking up a package, buying alcohol at the grocery store, etc.).”
Imagine being forced to reveal your transgender status to random strangers while running errands in your community, or away from home (renting a car, boarding an airplane, checking into a hotel). Especially in the current environment, when trans people are often maligned as “groomers,” and expressing animus toward them is an applause line for Republican candidates.
McRoberts characterized the provision as “horrifying, flat out, government oppression of people.”
The reasons for personal information on a driver’s license is to establish identity, not medical history. […]
There have been many instances over the years when governments have required unpopular minorities to identify themselves publicly. Our tradition has been to fight those horrors at the ballot box or when needed, in uniform. That is because these violations of personal privacy are anti-American and should be clearly understood as such.
Beyond that, everyone who believes in personal privacy should be up in arms that this bill would create a government database of individual medical information.
Alluding to the governor’s crusade against so-called “vaccine passports” during the COVID-19 pandemic, McRoberts commented that in recent years, Iowa’s “government officials were absolutely fervent about prohibiting mandatory disclosure of personal medical decisions to the state and to the public.”
I can’t even imagine the response if Iowa’s government required any other personal medical information on a driver’s license. Let’s assume that instead of the government requiring disclosure of a sexual reassignment surgery from years ago, that Governor Reynolds had instead proposed mandatory disclosure of diabetes, emphysema, depression, or someone’s COVID vaccination? We all understand that the Iowa legislature would be up in arms and, would flush that awful idea down the toilet immediately. That is exactly what they should do now.
HSB 649 has been assigned to a subcommittee, but at this writing, no hearing has been scheduled. Notably, the bill was referred to the House Education Committee, rather than State Government or Judiciary (where many previous anti-LGBTQ bills have landed, including the latest effort to remove gender identity as a protected class in the Iowa Civil Rights Act).
PREPARING FOR A LEGAL CHALLENGE
As mentioned above, the governor’s bill describes “distinctions based on sex” in prisons, crisis centers, restrooms, and so on as “substantially related to the important government objectives” of protecting people’s health, safety, and privacy in those locations. That phrase foreshadows the state’s defense of such laws or policies, if challenged in court.
Judges will typically subject sex-based classifications to heightened or “intermediate scrutiny.” In that context, the state of Iowa would need to show the discriminatory provision serves an important government interest in a way that is substantially related to that interest.
Courts consider such arguments independently. Judges aren’t required to adopt the state’s framing of the question as proof that the challenged provision is actually related to an important government objective.
The U.S. Supreme Court has not ruled on the constitutionality of “bathroom bills,” and federal appeals courts have split on that issue when reviewing school policies. So if HSB 649 “only” excluded trans people from spaces that align with their gender identity, the state might have some prayer of a successful defense in court.
But it’s hard to conceive of any government objective, let alone an important one, that would justify forcing trans people to carry special driver’s licenses revealing their medical history. McRoberts told Bleeding Heartland, “There are certain personal facts that must be on a driver’s license – name, picture, and so forth. This is to establish identity – for public safety purposes. It’s to show you are who you say you are. Why on earth would Governor Reynolds want deeply personal medical information to be displayed on a driver’s license when that is of absolutely no relevance as to whether they can drive a car or to establish identity?”
Any transgender Iowan needing an updated birth certificate or driver’s license would presumably have standing to challenge these requirements, if the legislature approves the governor’s bill.
Iowa Safe Schools has already challenged one of Iowa’s new anti-LGBTQ laws, as a plaintiff in a lawsuit the ACLU of Iowa filed in November. In a February 1 news release, the nonprofit’s executive director Becky Tayler described the governor’s bill as “an affront to everything we’re about as Iowans.”
Governor Reynolds has made it crystal clear that transgender Iowans are not welcome in their own state. Our organization would strongly suggest that the Governor retake elementary civics class – “separate but equal” is inherently unconstitutional. Our organization will fight tirelessly to ensure our students are afforded equal treatment under the law.
To hear Reynolds tell the story, other people made her do it.
GOVERNOR INVOKES LANGUAGE OF ABUSERS
The governor’s spokesperson Kollin Crompton did not respond to a half-dozen questions Bleeding Heartland emailed soon after HSB 649 was published, including, “What are the problems in Iowa that this legislation is trying to solve?” “What is the benefit of issuing special driver’s licenses to transgender people noting their sex assigned at birth as well as their current sex designation?” and “Should any other groups that are protected classes under Iowa’s Civil Rights Act be subject to ‘separate but equal’ accommodations?”
Later on February 1, the governor’s office released the following statement from Reynolds about the legislation.
Women and men are not identical; they possess unique biological differences. That’s not controversial, it’s common sense. Just like we did with girls’ sports, this bill protects women’s spaces and rights afforded to us by Iowa law and the constitution. It’s unfortunate that defining a woman in code has become necessary to protect spaces where women’s health, safety, and privacy are being threatened like domestic violence shelters and rape crisis centers. The bill allows the law to recognize biological differences while forbidding unfair discrimination.
The governor postures as a reluctant antagonist, who was forced to act to protect “women’s health, safety, and privacy.” In other contexts, this tactic is sometimes called DARVO, which stands for “deny, attack, reverse victim and offender.”
Crompton did not respond to follow-up questions, such as: What other group of people has to put details about their medical history on their driver’s license? And how is protecting privacy and stopping discrimination consistent with mandating separate driver’s licenses for trans people?
McRoberts commented that the governor’s claim to be “forbidding unfair discrimination” is “an astonishing misunderstanding and misstatement of what this bill does.” In reality, he said, the bill encourages discrimination. And while the apparent goal is to undermine equal rights for trans Iowans, McRoberts noted, “This proposal also undoes any government protections against discrimination against women. I would like to remind people that we are in the year 2024. These terrible ideas should have stayed in the past.”
Bleeding Heartland will closely follow the progress of HSB 649 and other bills affecting the LGBTQ community. One Iowa maintains a publicly accessible chart tracking anti-LGBTQ bills, with a threat level assigned to each measure to indicate its likelihood of moving forward.