Ninth Circuit swats challenge to Idaho anti-trans bathroom law

(CN) — An Idaho law banning transgender public school students from using the bathroom that matches the gender they identify with will remain in place after a panel of the Ninth Circuit Court of Appeals rejected a Boise High School student organization’s constitutional challenge on Thursday.

“The facts of this case are distinguishable from those in which the government forces individuals to provide information that unambiguously discloses their transgender status,” U.S. Circuit Judge Morgan Christen, a Barack Obama appointee, wrote in a 36-page order. The panel also comprised Bill Clinton appointee U.S. Circuit Judge Kim McLane Wardlaw and Donald Trump appointee U.S. Circuit Judge Mark J. Bennett.

Idaho passed Senate Bill 1100 in March 2023. The law requires that changing rooms and restrooms be designated by sex and that students use only the room that aligns with the sex they were assigned at birth, or their “biological sex.” It also applies to overnight lodging during school activities and contains exemptions allowing staff and certain other authorized adults to enter changing facilities for the opposite sex.

Before the law, schools were allowed to set their own policies around student access to locker rooms, bathrooms and changing facilities. About one-quarter of the state’s schools had policies letting students use the rooms that aligned with their gender identity. The other schools didn’t have regulations specifying access one way or the other.

A then-12-year-old transgender student, along with her parents and the Sexuality and Gender Alliance association at Boise High School, sued state education officials and the Idaho State Board of Education in federal court after the bill took effect. The plaintiffs argue the measure will deeply stigmatize and harm transgender students, and violate their constitutional rights and Title IX.

In October of 2023, a federal court in Idaho declined to give the activists a preliminary injunction, finding that the activists hadn’t met their burden. Two weeks later, the student and student group appealed to the Ninth Circuit, where a torn panel enjoined the law while the appeal pends. The preliminary injunction barred enforcement for the 2023-2024 school year.

Then in July of 2024, a few months after the panel heard oral arguments, the transgender student plaintiff voluntarily withdrew from the case, leaving just the Sexuality and Gender Alliance Association — whose arguments the appellate court swiftly rejected in Thursday’s order.

Lambda Legal, a civil rights group focused on LGBTQ policy work, represents the plaintiffs.

“It is unfortunate that the Ninth Circuit, after previously putting the Idaho law on hold because of the real harm it threatens to inflict upon transgender students, would withdraw that protection for now, but its limited ruling keeps the door open for future protection,” Lambda Legal attorney Kell Olson said of the ruling.

The court determined that the statute indeed identified an important governmental objective, “protecting the privacy and safety of all students,” particularly in areas where a student might be partially or fully undressed.

“We acknowledge, as the district court did, that the use of restrooms, locker rooms, shower rooms, and overnight accommodations do not present uniform risks of bodily exposure,” Christen wrote. However, to have won its equal protection claim, the student organization needed to have shown the bills’ mandated sex segregation of each of those facilities was unconstitutional.

“[I]t is plain that the privacy interest in avoiding bodily exposure is most strongly implicated in locker rooms and communal shower rooms that lack curtains or stalls,” Christen wrote, and sex segregation in those spaces serves the state’s interest in shielding students from the unclothed bodies of students of the opposite sex and preventing students from showing their own unclothed bodies to students of the opposite sex.

“Accordingly, whether viewed as classifying students based on their sex or based on their transgender status, we conclude that S.B. 1100 is not facially unconstitutional under the equal protection clause,” Christen wrote.

The panel also rejected the student organization’s Title IX argument, in which the group argued the bill discriminated against students based on their transgender status by forcing them to use facilities that don’t align with their gender identity.

However, the Ninth Circuit panel found that the student group didn’t show that Idaho had known clearly that Title IX prohibited segregated access to the facilities targeted in the bill on the basis of transgender status at the time it accepted federal funding.

As for violations of informational privacy, a right that the student group argued had been violated through the exclusion of transgender students from facilities matching their gender identity and thereby exposing their transgender status to others, the panel again rejected the argument.

The bill contains an accommodation requiring schools to provide a unisex single-occupancy facility to any student who, for “any reason, is unwilling or unable” to use a multi-occupancy sex-segregated facility if they provide written notice to their school.

The panel noted that the student organization “may be correct that transgender students’ use of single-occupancy facilities will invite unwanted attention from their peers,” but there wasn’t enough evidence to show that at this stage.

“Because the statute does not limit the use of single-occupancy facilities to only transgender students, we cannot say on the existing record that observing a student accessing such a facility will necessarily disclose that student’s transgender status,” Christen wrote.

The state was represented in part by the Alliance Defending Freedom, a conservative Christian legal advocacy group, which celebrated the appeals court’s decision on Thursday.

“Girls and boys are biologically different, and we agree with the court’s decision to protect young students’ privacy and dignity by upholding Idaho’s law that recognizes their differences and accommodates each unique student while the case continues,”  said Erin Hawley, senior counsel for the Alliance Defending Freedom.

While the panel rejected the student group’s bid for a continued injunction, attorneys with Lambda Legal plan to keep the challenge against the statute alive in the lower court.

“This limited ruling is a disappointing but ultimately temporary setback for transgender students across Idaho, who for years have been using school facilities matching their gender identity without incident until Idaho legislators decided to target them for discrimination,” Lambda Legal senior counsel Peter Renn said in a statement.