Wanna pee in Idaho? First, get a forced DNA test to prove your gender, state GOP lawyer suggests

Read more at LGBTQ Nation.

A recent court hearing on a lawsuit brought by six transgender Idahoans against the state’s latest bathroom bill has revealed just how unworkable the draconian new law would be. In fact, to enforce it, an attorney for the red state said restroom users might need to undergo forced DNA testing.

House Bill 752, which passed the Legislature this year with only Republican votes, prohibits trans people from using public restrooms that match their gender identity, both in government-owned buildings and private businesses that serve the public.

The law is set to take effect July 1.

The suit says the Idaho law — one of three recently passed by Republican legislatures that impose criminal penalties on offenders — violates the plaintiffs’ constitutional rights to due process, equal protection, and privacy. The challenge was brought by the American Civil Liberties Union (ACLU), the ACLU of Idaho, and Lambda Legal.

At the hearing, the judge in the case — Chief U.S. District Judge for the District of Idaho, Amanda K. Brailsford — questioned the state over how exactly they would determine the sex at birth of an individual accused of violating the law, The Idaho Capital Sun reports.

Kell Olson, a trans attorney for Lambda Legal, told the judge that if police confronted him and asked for his ID, officers would find that his ID lists him as male. Brailsford noted, for the record, that most of the plaintiffs suing the state also have state-issued IDs with gender markers that are aligned with their gender identity. 

Idaho Solicitor General Michael Zarian suggested the solution was simple: “There is DNA testing.”

Pressed on whether DNA testing required consent, Zarian hedged, saying that wasn’t necessarily the case and that he doubted the accused would be asked to undergo DNA testing on the spot.

Lambda’s Olson told the court that DNA testing usually requires a warrant. 

Both the Idaho Sheriffs’ Association and the Idaho Fraternal Order of Police called the proposed law impractical and unworkable.

There is no “clear or reasonable way” to determine a person’s sex at birth during a field contact without engaging in “invasive and inappropriate” questioning or searches, said one police group president.

Following the hearing, ACLU of Idaho attorney Emily Croston said the state didn’t help itself on the issue of enforcement.

“I don’t think the state has an answer for how you identify someone’s biological sex,” Croston told reporters. “Are we just going to look at folks as they enter a restroom and determine whether we think they look enough like a man or a woman? That’s ridiculous.”

The hearing only reinforced the plaintiffs’ argument that the law is unconstitutionally vague, and police organizations’ earlier doubts that it’s practically unenforceable.

Proving the former claim, Solicitor General Zarian tried using an exemption in the law to demonstrate how reasonable the ban is. The law allows individuals to use restrooms that don’t align with their sex if they are in “dire need” of going to the bathroom, he pointed out.

Pressed by Judge Brailsford, Zarian acknowledged that it “might be difficult to prove someone had a dire need,” but that vagueness, he claimed, doesn’t mean that the law itself is unconstitutionally vague.

Idaho law enforcement didn’t have to similarly tie themselves in knots when they formally opposed the ban during debate in the Legislature earlier this year. Both the Idaho Sheriffs’ Association and the Idaho Fraternal Order of Police called the proposed law impractical and unworkable.

There is no “clear or reasonable way” to determine a person’s sex at birth during a field contact without engaging in “invasive and inappropriate” questioning or searches, said one police group president.

The ACLU notes that analyses of public safety data have found policies inclusive of transgender people’s access to public accommodations have no impact on rates of harassment or violence, while policies that restrict access actually increase the risk of harassment and violence. Trans people are four times as likely as their cisgender peers to be the victims of violence.

Nine bathroom bans have passed by red state legislatures in recent years, but Idaho’s is the only one to cover private businesses as well as government buildings. A first offense is a misdemeanor, with up to one year in prison; a second offense jumps to a felony, with up to five years in prison.

A fourth violation would constitute a third felony conviction, punishable under Idaho’s persistent violator statute by a mandatory minimum of five years and up to life in prison.