It is hard to rationalize Idaho’s or any state’s compelling interest in criminalizing Transgender Treatment for Minors, legislation directed solely at a tiny minority group seeking medical intervention for identified and diagnosed conditions. Idaho’s legislation meets all of the tests for a Bill of Attainder and, as today’s NYT headline opines, “ Supreme Court Clears Way, for Now, for Idaho to Ban Transgender Treatment for Minors”, SCOTUS shows its willingness to ignore Article 1, Section 9, Clause 3 of the Constitution. “ No Bill of Attainder …shall be passed.”
A bill of attainder is an act of a legislature declaring a person, or a group of people, guilty of some crime, and punishing them, often without a trial the effect of which is to nullify the targeted person's civil rights. To understand why legislatures cannot be permitted to enact Bills of Attainder, I urge reading James Madison in Federalist 44 reprinted in part below.
Federalist 44: 1, “ Bills of attainder… are contrary to the first principles of the social compact, and … to every principle of sound legislation. … prohibited by the spirit and scope of these fundamental charters. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted. Very properly, therefore, have the convention added this constitutional bulwark in favor of personal security and private rights; and I am much deceived if they have not, in so doing, as faithfully consulted the genuine sentiments as the undoubted interests of their constituents. The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more industrious and less informed part of the community. They have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding….”.
Criminalizing transgender treatment is driven principally by The Christian Right and highlighted by the Catholic News Agency without concern over a State’s interference with the “personal security and private rights” of this targeted group and the Supremacy Clause of the Constitution protecting those rights. State Legislature could have enacted laws and procedures to safeguard transgender treatments for minors instead of a total ban. Criminalizating treatment cannot be permitted to continue as a model strategy for a Christian Nationalist Crusade targeting transgender youths.