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Saturday, August 20, 2022
Judicial departmentalism in action
Idaho wants to prevent trans people from changing their gender markers on state documents. Here is how it has gone:
• Pre-2018: State regulations prevent trans people from changing markers.
• 2018: Federal court declares reg violates equal protection
• 2020: State enacts legislation codifying regulation
• 2021: Federal court declares legislation violates equal protection
• 2022: Court orders state to pay $300,000 in attorney's fees.
Folks are giving Idaho a hard time, but this is how it should work. The state pursued its constitutional vision, even contrary to judicial precedent. The court's competing view prevailed in litigation and the state adheres to the adverse judgment. And the court awarded the state to pay attorney's fees to the prevailing plaintiffs. That the court's view will prevail in litigation and that the court can award fees can/should place a drag on states pursuing their departmentalist preferences--states know they will lose and lose money.
It is unwieldy. But it is how the system should work.
Posted by Howard Wasserman on August 20, 2022 at 05:37 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink
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