Idaho LGBT Laws

On 07June 2017, the State Supreme Court denied custody and visitation rights to a gay woman known only as Jane Doe who raised a child with her former partner, the child’s natural mother. The ruling reflects state laws that have not been updated since same-sex marriage became legal in 2014 [C1.7], [R1.6].

On 03 May 2004 the McGriff -v- McGriff case was heard in the Idaho Supreme Court and on 21 September 2004, the Court found in a 4–1 decision that while unanimously concluding that homosexuality is no per se bar to child custody, the Court upheld a county magistrate’s decision denying custody to a gay father, and limiting the children’s visitation to times when his partner is not in residence [C1.5], [R1.5].

Previously:

In July 2002, a Bonneville County Magistrate Mark Riddoch said Theron McGriff, a gay father, has a choice: stop living with his partner or lose visitation rights with his children [R1.4].

The State Supreme Court has never previously ruled on the rights of homosexual parents [R1.2].

On 17 May 2002 Bonneville County Magistrate Mark Riddoch vacated a joint custody agreement in favour of ordering primary custody to ex-wife of Theron McGriff as the ” … Father’s decision to openly co-habit with his partner is a change in circumstances which needed to be jointly communicated to the girls in an appropriate manner … He has minimized this issue in regard to the conservative culture and morays [sic] in which the children live.” [R1.3].

McGriff appealed the decision to Idaho District Court, after the state Supreme Court failed to act on a request to hear the case. However, the Idaho Supreme Court will now review the magistrate’s decision to deny a man custody of his two children because he is gay [R1.2].

The father was ordered to pay his ex-wife’s court costs while he waits for the Idaho supreme court to hear his precedent-setting appeal [R1.1].

No municipalities are known to offer domestic partner benefits.

Discrimination on the basis of sexual orientation or gender identity is not proscribed.

Idaho Statutes. Title 67 State Government and State Affairs. Chapter 59 Commission on Human Rights [L1.4].

67–5909. ACTS PROHIBITED. It shall be a prohibited act to discriminate against a person because of, or on a basis of, race, color, religion, sex or national origin, … age … disability …

On 01 March 2012, a new version of the proposed bill to include “sexual orientation” and “gender identity” in Idaho’s Human Rights Act was expected to be considered by the House State Affairs Committee. The Bill would make it illegal to discriminate against someone based on their sexual orientation or gender identity in housing, employment, education and public accommodation [R1.3].

On 10 February 2012, the Senate State Affairs Committee killed legislation to add protections for gay, lesbian and transgendered individuals under the Idaho Human Rights Act [R1.2].

On 21 March 2000, a bill some say will let employers and landlords discriminate against gays and provide religious cover for spousal abuse passed the House of Representatives [R1.1].

On 25 September 2018, Meridian City Council reportedly approved 4-2 a non discrimination ordinance that bans discrimination citywide based on gender identity or sexual orientation. Violators of the ordinance could face an infraction and a $250 fine [R2.10].

On 27 October 2014, the Lewiston City Council passed an ordinance 5-2 vote banning discrimination in housing, employment and public accommodation based on sexual orientation or gender identity [R2.9].

On 27 June 2014, the recount of the 20 May Pocatello residents vote confirmed the vote to retain the ordinance banning discrimination on the basis of sexual orientation and gender identity [R2.8].

On 27 June 2014, a recount of the 20 May Pocatello residents vote to keep the antidiscrimination law in place, ordered at the request of a group opposed to the ordinance, was set to take place [R2.7].

On 12 June 2014, it was reported that the Victor city council unanimously approved a non-discrimination ordinance making it unlawful to discrimination on the ground of sexual orientation or gender identity/expression in employment, housing and public accommodation. The ordinance goes into effect 16 June 2014 [R2.8].

On 20 May 2014, 4,943 people voted to keep the Pocatello anti-discrimination law in place, while 4,863 people voted to rescind it [R2.7].

On 06 June 2013, the Pocatello City Council voted 4-2 to pass an ordinance to protect members of the lesbian, gay, bisexual and transgender community from discrimination when it comes to housing, employment and public accommodations [R2.6].

On 04 June 2013, the Coeur d’Alene City Council passed an ordinance 5-1 that bans discrimination on the grounds “sexual orientation, gender identity and expression” in employment and public accommodations [R2.5].

On 18 April 2013, Pocatello City Council rejected 4–3 an ordinance that would have made it a misdemeanor to discriminate on the basis of sexual orientation or gender identity [R2.4].

On 22 January 2013, the Ketchum City Council passed an ordinance, which prohibits discrimination based on a person’s sexual orientation or gender identity in cases of housing, employment and public accommodation, unanimously [R2.3].

On 04 December 2012, Boise City Council unanimously approved an ordinance effective 01 January 2013, making it unlawful to discriminate based on sexual orientation in the areas of employment, housing and at local businesses, with exceptions for religious institutions and some private organizations [R2.2].

On 21 December 2011, Sandpoint Council unanimously passed an ordinance that enhances state law by adding sexual orientation and gender expression to those protected classes in employment, housing or public accommodation [R2.1].

On 06 June 2013, the Senate approved 11-7 Senate Bill 97 that would add gender identity and expression to the state’s anti-discrimination and hate crimes law. The House Administration Committee is scheduled to hold a hearing on SB 97 on June 12 [R1.3].

On 23 April 2013, the Transportation Department announced that it had amended its policy regarding changes to driver’s licenses to allow transgender people to correct the gender marker on their license without showing proof that they have undergone surgery [R1.2].

In August 2002, it was reported that Idaho barred transsexuals from altering their birth certificates after gender reassignment surgery [R1.1].

On 20 March 2019, the US Court of Appeals for the Ninth Circuit ruled the Idaho Department of Correction does not have to provide gender confirmation surgery to transgender inmate Adree Edmo, aka Mason Edmo until it says otherwise. Oral argument is expected to be scheduled in May 2019 [C2.8], [R2.7].

On 04 March 2019, US District Judge B. Lynn Winmill ruled that Idaho Department of Correction officials cannot delay gender confirmation surgery for transgender inmate Adree Edmo while they appeal the court ruling requiring them to provide the surgery by 13 June [R2.6].

On 09 January 2019, it was reported that the State would appeal the 13 December 2018 court ruling (below) ordering the state to provide gender confirmation surgery to transgender inmate Adree Edmo to the 9th US Circuit Court of Appeals [R2.5].

On 13 December 2018, US District Judge B. Lynn Winmill ordered the Idaho Department of Correction to provide transgender inmate Adree Edmo with adequate medical care, including gender confirmation surgery. Judge Winmill wrote ” … the Supreme Court has consistently held that consciously ignoring a prisoner’s serious medical needs amounts to cruel and unusual punishment in violation of the Eighth Amendment” [C2.4], [R2.3].

On 05 March 2018, US Magistrate Judge Candy Dale ruled that the Idaho Department of Health and Welfare can’t bar transgender people from changing the sex listed on their birth certificates, giving the State until 06 April to begin considering applications to change the sex listed on birth certificates under new, constitutionally sound rules [C2.2], [R2.1].

On 20 March 2019, the US Court of Appeals for the Ninth Circuit ruled the Idaho Department of Correction does not have to provide gender confirmation surgery to transgender inmate Adree Edmo, aka Mason Edmo until it says otherwise. Oral argument is expected to be scheduled in May 2019 [C1.5], [R1.4].

On 04 March 2019, US District Judge B. Lynn Winmill ruled that Idaho Department of Correction officials cannot delay gender confirmation surgery for transgender inmate Adree Edmo while they appeal the court ruling requiring them to provide the surgery by 13 June [R1.3].

On 13 December 2018, US District Judge B. Lynn Winmill ordered the Idaho Department of Correction to provide transgender inmate Adree Edmo with adequate medical care, including gender confirmation surgery. Judge Winmill wrote ” … the Supreme Court has consistently held that consciously ignoring a prisoner’s serious medical needs amounts to cruel and unusual punishment in violation of the Eighth Amendment” [C1.2], [R1.1].

Same-sex consensual sexual activity is unlawful in Idaho and carries a maximum punishment is five years to life [R1.1].

But see 2. Courts & Tribunals below.

18-6605.Crime against nature — Punishment. Every person who is guilty of the infamous crime against nature, committed with mankind or with any animal, is punishable by imprisonment in the state prison not less than five years. [L1.1].

18-6606.Crime against nature — Penetration. Any sexual penetration, however slight, is sufficient to complete the crime against nature [L1.1].

The June 2003 US Supreme Court ruling in Lawrence & Garner -v- Texas that a similar the law in Texas was an unconstitutional violation of privacy is thought to nullify or invalidate the Idaho law [C2.1], [R2.1].

On 06 April 2015, six same-sex couples who married in early October 2014, before state officials say a federal court made such unions legal, were reportedly being given a unique state-approved opportunity for a do-over, with a unique application intended to allow them to get a new license without denying they’re already married. The application has the unusual option of selecting already married [R1.3].

On 12 February 2015, the Idaho Bureau of Vital Records and Health Statistics reportedly ruled invalid the first six same-sex marriage licenses issued before the 9th U.S. Circuit Court of Appeals lifted a stay blocking same-sex marriage in Idaho effective 15 October 2014. The county has offered to reissue the licenses at no charge [R1.2].

On 13 October 2014, same-sex marriages became lawful, effective 15 October 2014 [R2.14].

See: Courts & Tribunals below.

Previously:

A 1996 law upheld an existing law against same-sex marriages in the state. The law also prohibited the recognition of gay marriages deemed lawful in other states [R1.1].

On 09 July 2015, US Magistrate Ron Bush concluded that Taylor seventy-four-year-old Navy veteran Madelynn Lee Taylor has the right to be buried with her wife at the Idaho State Veterans Cemetery when she dies saying she “is entitled to have the assurance that there is a court order in place requiring that what she has a right to have happen if she were to pass away today, will happen when she does pass away.” [R2.24].

On 09 January 2015. the three-judge panel of the US Court of Appeals for the Ninth Circuit voted to deny the petitions for rehearing en banc the Susan Latta, et al., v. C. L Otter, et al. (Idaho) and the Beverely Sevcik, et al., v. Brian Sandoval (Nevada) same-sex marriage cases, suggesting that lower courts are still bound by the Supreme Court’s one-line decision in 1972 in the case of Baker v. Nelson that essentially confirmed that the Constitution commits questions of marriage policy to the citizens of each state [C2.23], [R2.22].

On 02 January 2015, Governor Otter and the State of Idaho were reported to have filed two separate petitions in the US Supreme Court seeking a review the decisions striking down the State same-sex marriage ban in the “Latta v. Otter” case [C2.21], [C2.20], [R2.19].

On 21 November 2014, the US Court of Appeals for the Ninth Circuit granted in part Governor Ottor’s motion for leave to file a reply in support for rehearing en banc of the Susan Latta, et al. v. C L Otter, et al. same-sex marriage case [C2.18], [R2.17].

On 21 October 2014, lawyers for Gov. C.L. “Butch” Otter filed a plea for a new review by the full US Court of Appeals for the Ninth Circuit., seeking to have the three-judge panel’s decision issued on 07 October wiped out and en banc (full court) review to begin, arguing that the panel ruling was “judicial policymaking masquerading as law” [C2.16], [R2.15].

On 13 October 2014, the Ninth Circuit Court of Appeals issued an order lifting the stay that blocked same-sex marriage from starting in Idaho with effect from Wednesday morning when marriage licenses can legally be issued to same-sex couples statewide [R2.14].

On 10 October 2014, the US Supreme Court turned down the state’s request for a reprieve on issuing marriage licenses to same-sex couples following this week’s ruling by the Ninth Circuit Court of Appeals declaring the state’s gay marriage ban unconstitutional [R2.13].

On 08 October 2014, on the application of Governor Otter and others, US Supreme Court Justice Kennedy put the mandate in the Idaho marriage case, Latta v. Otter, temporarily on hold “pending further order” either by himself or the full Court [C2.12], [R2.11].

On 07 October 2014, the US Court of Appeals for the Ninth Circuit struck down same-sex marriage bans in Idaho and Nevada, finding that the laws at issue violate the Equal Protection Clause of the Fourteenth Amendment [C2.10], [R2.9].

On 30 June 2014, it was reported that the Ninth Circuit Court of Appeals set 08 September 2014 for hearing the challenges to same-sex marriage bans in Hawaii, Idaho and Nevada [C2.8], [R2.7].

On 20 May 2015, the Ninth Circuit Court of Appeals granted a stay of the District Court’s 13 May 2014 Order pending appeal and set the hearing of the appeal for week commencing 08 September 2014 [C2.6].

On 15 May 2014, the Ninth Circuit Court of Appeals ordered a temporary stay of the District Court’s 13 May 2014 Order, pending the Court’s disposition of the appeal [C2.5].

On 13 May 2014, US Magistrate Judge Candy W Dale in the US District Court for the District of Idaho ruled that Idaho’s 2006 law, which amended the state constitution to limit marriage to opposite-sex couples, violates the U.S. Constitution. The ruling to take effect on Friday 16 May unless the appellate court grants a stay [C2.4], [R2.3].

On 08 November 2013, a lawsuit was filed in the US District Court for the District of Idaho on behalf of four same-sex couples challenging Idaho’s gay marriage ban and its refusal to recognize the marriages of gay couples who wed in other states [C2.2], [R2.1].

On 03 January 2019, US District Court Judge B Lynn Winmill ordered the State to pay more than $277,000 in legal fees to attorneys for Adela Ayala, an Idaho woman who sued because the state refused to put her name on the birth certificate of a child she had with her same-sex partner. In 2017, Judge Winmill said the state laws that prevented Ayala from being listed on the child’s birth certificate were unconstitutional as applied in her case, and he ordered the state of Idaho to add Ayala as a parent on the birth certificate [C2.8].

On 24 August 2017, US District Judge B Lynn Winmill, granted (in part) Adela Ayala a preliminary injunction requiring the Bureau of Vital Records and Health Statistics issue an amended two-parent birth certificate recognizing Ayala as the parent of the child L.O.A., born by artificial insemination to her partner Janina Oquendo, finding the Bureau’s refusal constituted discrimination of the basis of sexual orientation and sex. State law prevented the partners from marrying at the time [C2.7].

On 07June 2017, the State Supreme Court denied custody and visitation rights to a gay woman known only as Jane Doe who raised a child with her former partner, the child’s natural mother. The ruling reflects state laws that have not been updated since same-sex marriage became legal in 2014 [C2.6], [R2.5].

On 02 May 2014, Ada County Magistrate Judge Cathleen MacGregor Irby approved Darcy Simpson’s adoption of two sons, Tray (15) and Dalton (12), who told the judge they consented. The case was initially dismissed by the judge and on appeal, the Supreme Court held in February [R2.3] that “any adult person” may adopt. In 2013, Rene and Darcy Simpson married in California [R2.4].

On 10 February 2014, Justice J Jones for the Idaho Supreme Court concluded that “Any adult person” in the §16-1501 of the Idaho Code cannot possibly be construed to mean “any married adult person” so, a second-parent adoption doesn’t require that the parties be married to each other, and adoption of an opposite-sex partner’s (or even friend’s) children would be allowed as well, so long as the other requirements for adoption are met [C2.3], [R2.2].

In January 1999, the Idaho Supreme Court was reported to be taking up its first case of adoption involving a couple of the same sex [R2.1].

On 08 February 2016, Senate approved legislation, already passed by the House, to bring the state’s tax code in line with federal rules — and also allow same-sex couples to file joint returns, saying all marriages recognized by the federal government will be recognized by Idaho’s tax code. The Bill awaits the governor’s signature [R1.4].

On 05 February 2014, the Senate voted 29-6 in favor of HB 375, granting final passage to the bill that requires same-sex couples who are legally married in other states to file separately on their Idaho income tax returns. The awaits Governor Butch Otter’s signature. It earlier passed the House 27-12 [R1.3].

On 14 January 2014, the House Revenue and Taxation Committee approved a State Tax Commission rule requiring same-sex couples who are legally married in other states but live in Idaho to file their state income taxes separately – even though they can file their federal taxes jointly [R1.2].

On 04 October 2013, Idaho State Tax Commission instructed that as Idaho law doesn’t recognize same-sex marriage, those in a same-sex marriage recognized in a different jurisdiction must [R1.1]:

• File separate Idaho income tax returns, either as single or head of household (if qualified), and
• Recompute your federal income tax return as if you had used either the single (or head of household, if qualified) filing status, and
• Include those computations or your recomputed federal return with your Idaho Form 40 (resident) or Form 43 (nonresident or part-year resident) tax return.