Idaho judge denies injunction on anti-transgender bathroom bill

(CN) — Idaho’s anti-transgender bathroom bill will go in effect in early November after a federal judge denied a preliminary injunction to a Boise High School student organization and a 12-year-old transgender student on Friday.

“There will be no preliminary injunction and Idaho’s statute will soon take effect because plaintiffs have not met their burden for an injunction,” wrote Chief U.S. District Judge David C. Nye in the order issued Friday.

Nye also denied Idaho education officials’ attempt to dismiss the case, adding that, they too, missed the mark for dismissal.

“This is a difficult case,” Nye wrote. “Each of the parties before court seek to protect important individual rights. The critical question, however, is what happens when individuals’ rights converge and those rights struggle to co-exist?”

In early July, a 12-year-old transgender student joined a Boise High School organization called the Sexuality and Gender Alliance in suing the Idaho State Board of Education along with several education officials to prevent Senate Bill 1100 from going into effect.

Republican Idaho Governor Brad Little signed the controversial bill last March, banning Idaho schools from allowing transgender students to use restroom and changing facilities like locker rooms and shower rooms associated with the gender they identify with.

The ban also extends school activities or events involving overnight lodging and with the exception that schools provide reasonable accommodations for students that are unwilling or unable to use a multi-sex occupancy bathroom or changing facility designated for their sex in a public school building or public school-sponsored activity. The accommodations are only made per written request.

Moreover, the ban allows students to sue public schools that allow students of the opposite sex in a bathroom, changing room or sleeping quarter that doesn’t align with their “sex” — a term the bill defines as “the immutable biological and physiological characteristics, specifically the chromosomes and internal and external reproductive anatomy, genetically determined at conception and generally recognizable at birth, the define an individual as male or female.”

The plaintiffs asked Idaho’s federal court for a preliminary and permanent injunction on July 6, claiming violations of equal protection under the Fourteenth Amendment, Title IX and right to privacy.

In early August, Nye approved the plaintiff’s temporary restraining order filed on July 28, though he did not order Idaho school districts to adopt transgender-friendly policies regarding sex-separated facilities. The restraining order only maintained the state’s status quo — some school districts already had policies separating bathroom usage, while others did not.

Nye’s latest order on Friday follows a Sept. 13 motion hearing for the plaintiffs’ preliminary injunction and the defendants’ motion to dismiss. While he said the decision is difficult because it impacts “some of Idaho’s most vulnerable” and forces students to change routines with other potentially regrettable societal consequences, the judge wrote that “the court must stay within its lane.”

“Its duty is to interpret the law; it is not a policy-making body,” Nye wrote. “As much, the court cannot say which approach is best. It can only decide whether the approach chosen by the Idaho Legislature is legal. And, in the context of a preliminary injunction such as this, the question is even more nuanced since the court’s analysis is preliminary.”

Nye wrote that plaintiffs were unable to convince the court that the law was unconstitutional, later explaining that the plaintiffs failed to argue that the ban distinguishes upon sex and that disclosing one’s sex, sexual orientation or gender identity is a violation of due process “because it does not implicate a fundamental liberty interest.”

As for the plaintiffs’ claim of irreparable harm, Nye noted that both sides of the courtroom discussed the science of gender dysphoria and what the law could mean for transgender students, including risks of anxiety, depression and other psychological harms. The judge concluded that neither side provided conclusive facts about Idaho and any specific harm transgender or cisgender students have or will suffer.

“The court is not implying plaintiffs’ arguments are meritless — after all, some courts have upheld similar arguments to those plaintiffs offer now,” Nye wrote. “On the other hand, other courts have upheld the arguments defendants proffer. Indeed, this area of law (and societal policy) is evolving.”

Nye declined, however, to dismiss the case in it entirety, citing the state’s “perfunctory” motion for dismissal, writing, “the fact that other courts have found merit in similar claims against the backdrop of regulations similar to S.B. 1100 weighs against finding that plaintiffs’ claims are wholly implausible.”

For now though, the court will extend the temporary restraining order for 21 days to give school districts enough time to identify and designate gender-specific facilities consistent with the law. After that point, the bill will go into full effect.

Plaintiffs’ counsel included attorneys from Lambda Legal, Munder Tolles & Olson and Alturas Law Group, none of which immediately responded to a request for comment.

Follow @alannamayhampdx