9th Circuit Court of Appeals hears arguments on Idaho’s bathroom bill

This story was first published by Idaho Reports on May 9, 2024.

The 9th Circuit Court of Appeals heard arguments Thursday in Pasadena, California, regarding an Idaho law that would prevent transgender students from using bathrooms that align with their gender identity.

The Idaho Legislature passed Senate Bill 1100 in 2023. In the lawsuit Roe v. Critchfield, the lower court declined to issue an injunction in the case, meaning it would go into effect. The lower court did not believe the plaintiffs would prevail, in part because the policy is based on sex, not gender identity.

In October of 2023, the court of appeals temporarily blocked enforcement of the law.

Under the law, it became statewide policy that school districts must ensure separate restrooms and changing facilities are available based on biological sex at every school. Schools could be liable if they gave permission to anyone to use a restroom that does not match their biological sex. Schools would be required to offer an alternative facility for any student who did want to use a central facility.

Represented by Lambda Legal, plaintiff Rebecca Roe, a transgender student in Idaho, filed the suit after the bill’s passage against Idaho Superintendent of Schools Debbie Critchfield. “Rebecca Roe” is a pseudonym for the girl’s real name.

Plaintiff’s attorney argue Idaho law violates Equal Protection Clause, Title IX

Attorney Peter Renn argued on behalf of Roe that the law violates the Equal Protection Clause of the U.S. Constitution and Title IX laws on sex discrimination. He focused on the fact that some school districts in Idaho already allow transgender students to use the facilities of their choice.

“This would ban every transgender student in every school from every facility matching their gender identity,” Renn said. “Overnight, SB 1100 would yank transgender students out of the shared facilities they’ve used for years, banish them to single-use facilities, isolated from their peers and rob them of their sense of belonging.”

Renn argued the state has not presented any evidence showing that transgender-inclusive policies have been a problem or put Idaho students at risk. He argued the law discriminates on the basis of sex, saying no cisgender student would be subjected to injury or harm, but the law would cause harm if applied to a transgender student.

A cisgender person is a person whose biological sex matches their gender identity.

Renn argued that anyone who wants to avoid being seen by others while in a state of undress simply needs to close the stall door behind them.

Alliance Defending Freedom argued case on behalf of state

The Idaho Attorney General’s Office has repeatedly said the bill is constitutional and denies the plaintiff’s claims of potential harm to children.

Erin Hawley of the Alliance Defending Freedom argued on behalf of the state of Idaho. She stressed that the law does not apply only to transgender students, but it would be applicable to all students. She focused on the fact that the law does require schools to have a sex-neutral space for all students who are uncomfortable in a single-sex facility.

“Plaintiffs’ far-reaching theory is deeply harmful to the decades of progress in the academic setting made by girls and women,” Hawley said. “It dissolves important barriers in intimate spaces and pushes girls to the margins of programs, both academically and athletically.”

Judge Kim McLane Wardlaw questioned Hawley about statements conservative state lawmakers had made about gender, and the fact that the bill was drafted by the Idaho Family Policy Center, a Christian-based policy center which “recognizes biblical truths in sexuality and gender.”

“Isn’t it true that the only students impacted by SB 1100 are transgender students?” asked McLane Wardlaw, one of three judges on the panel.

Hawley said that’s not correct.

“What SB 1100 does is it separates based on sex, so it applies in a myriad of cases to students who are not transgender,” Hawley said.

The court will issue a written opinion at a later date.