Chuck Malloy

Rep. Heather Scott of Blanchard has done a wonderful job promoting the importance of paying attention to those administrative rules that have the effect, and sometimes drastic impact, of law. As a member of the House committee on Judiciary, Rules and Administrative, she has seen her share of rules that can cause hair to curl – or fall out.

In Scott’s recent newsletter, she illustrated a doozy – at least on the surface.

On July 3, as Idahoans were preparing for Independence Day celebrations, a powerful government agency reared its ugly head. The Health & Welfare Department, the agency that keeps bums and welfare cheats on the government dole, imposed (apparently out of the blue) a new administrative rule. They decided to give people the opportunity to record their “gender of choice” on certificates of live birth. Traditional definitions of sex and gender do not apply.

As Scott explains, “This rule allows Idaho citizens to change a legal document if they do not agree with it. Wow! Will criminals be allowed to change police records next?”

Good Lord. Everybody knows (at least outside of the Health & Welfare Department) that a person is one of two things at birth – a boy or a girl.

What’s more, according to Scott, is that the chairmen of the Legislature’s Health & Welfare committees – presumably part of the group lawmakers that she dubbed as “bought and paid for” in an earlier newsletter – refused to hold hearings on the subject.

Of course, that’s only part of the story. Scott didn’t mention that the rule was putting Idaho in compliance with a court order … or that the rule was reviewed by legislators, department heads, the attorney general’s office and the courts … or that Scott was involved in most, if not, all deliberations. Sen. Fred Martin, who chairs the Senate Health & Welfare Committee, said hearings on the issue were denied, because there really was no point.

And Scott was aware of all of those factors.

“This rule did not happen in a vacuum,” Martin said. “The department did not come up with this because they wanted to do so. There was a lawsuit against the state that the state lost, based on a federal court ruling.”

The lawsuit alleged that the Health & Welfare Department violated federal constitutional guarantees, including the right to equal protection, due process and freedom from compelled speech by refusing to change the indicator of sex on the birth certificate when requested.

So, blame President Trump and his court, because all this was done under his watch. Blame former President Obama or other presidents for having these rotten activist judges there in the first place. But don’t blame the department, legislators and others for complying with the court order. Ignoring it was not a practical option and it’s doubtful there will be a surge of Idahoans requesting to change their gender status.

Still, this rule is not a done deal. The rule is subject to legislative review in the next session and Scott can scream to high heaven (if she wishes) for the committee chairs to hold hearings.

But Scott does have a point about paying attention to those rules, and kudos to her for raising public awareness. Gov. Brad Little, to his credit, has cut the tar out of volumes of administrative rules – which will be up for review by the Legislature – and that’s a good first step toward creating a leaner government.

“I applaud and fully support the governor as to what he is doing with administrative rules,” Martin says.

Martin, for one, does not blow off the rules. He and his committee members get constant updates from the department, and his committee spends the first three or four weeks of the session combing through the rules.

“I take the administrative rules and the process of implementing them very seriously,” he says. “I personally read every administrative rule that comes before my committee.”

It’s not entertaining reading, but it’s part of what he does. As you might expect, he knows every detail of what went into implementing the gender rule on July 3. Scott also knew what was going on, but the dull facts don’t always create the best political spin.

Chuck Malloy, a long-time Idaho journalist, is a columnist with Idaho Politics Weekly. He may be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..