The Volokh Conspiracy
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No Preliminary Injunction Against Idaho Law Mandating Public School Students Use Bathrooms "That Correspond[] with Their Biological Sex"
The court had earlier issued a temporary restraining order against the law, to maintain the status quo; but now that it has gotten more full briefing, it declined to block the law (but also declined to dismiss the challenge to the law).
From Chief Judge David Nye's decision yesterday in Roe v. Critchfield (D. Idaho):
On March 22, 2023, the Idaho Legislature adopted Idaho Senate Bill 1100 …. On July 1, 2023, S.B. 1100 went into effect. S.B. 1100 requires, among other things, that students in Idaho public schools use the bathroom or locker room that corresponds with their biological sex. Similar regulations apply to overnight accommodations….
This is a difficult case. The Court previously prevented S.B. 1100 from taking effect [via a temporary restraining order] based upon the concept that maintaining the status quo—of no formal regulation—would allow the parties more time to fully address the difficult issues involved in this case. And while its decision today is still not a full adjudication on the merits, the Court finds that Plaintiffs have not shown they are likely to succeed on the merits of their claims.
The Court is not implying Plaintiffs' arguments are meritless—after all, some courts have upheld similar arguments to those Plaintiffs offer now. On the other hand, other courts have upheld the arguments Defendants proffer. Indeed, this area of law (and societal policy) is evolving.
The Court, however, must stay in its lane. It cannot provide guidance on how elected officials should navigate these difficult situations. It can only decide whether the action they have taken withstands constitutional scrutiny. As the Sixth Circuit aptly noted just a few weeks ago with respect to regulations about medical care for transgender minors: "[L]ife-tenured judges construing a difficult-to-amend Constitution should be humble and careful about announcing new substantive due process or equal protection rights that limit accountable elected officials from sorting out these medical, social, and policy challenges."
Ultimately, the Court is not convinced Plaintiffs can prevail on their equal protection claims because: 1) S.B. 1100 is based upon sex, not gender identity, and 2) privacy and safety are important government interests and separating these types of facilities on the basis of sex is "substantially related to the achievement of those objectives." The state of Idaho has an interest in protecting the privacy and safety of its youth while at school. It has written a law to achieve that goal, while also mandating a reasonable accommodation for any student who feels he or she cannot follow the law. That not all people agree with the law is the reality of living in a pluralistic society where everyone cannot have everything they want according to how they see the world.
{And the Court would reach this conclusion even if it were to assume, as Plaintiffs argue, that S.B. 1100 discriminates based on transgender status. That is, frankly, the whole point of this exercise. Under intermediate scrutiny, the government must show that it has a persuasive justification for the classification it has drawn. It has done so here regardless of which classification the Court uses—sex or transgender status. Thus, while there may be disagreement on the complicated, esoteric, and ever-evolving landscape of discrimination based on gender identity and whether that is the same as discrimination based on sex, it matters not because privacy is a legitimate interest either way.}
Plaintiffs likewise cannot show they are likely to prevail on the merits of their Title IX claim because Title IX specifically allows for sex-separate facilities. S.B. 1100, therefore, does not violate Title IX, it adheres to it.
And finally, Plaintiffs have not shown they are likely to prevail on the merits of their privacy claim because they have not demonstrated they have a protectable liberty interest in the nondisclosure of their gender identity.
Thus, while the Court finds the remaining Winter factors roughly even, it finds Plaintiffs have not prevailed on the critical first prong required to obtain a preliminary injunction today.
That said, Defendants have not shown Plaintiffs' claims are entitled to full dismissal. While they move to dismiss all claims, Defendants do so in a perfunctory manner, with little explanation. The idea seems to be that Plaintiffs' claims are based on speculative science and cannot withstand muster. As noted, however, the Court will not be delving into the science behind the parties' positions today. But 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. The Court will not dismiss Plaintiffs' claims at this time….
