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Ninth Circuit Declines to Block Idaho's "Biological Sex" Restrictions for Multi-Occupancy School Restrooms, Locker Rooms, and Shower Rooms
The court leaves open, though, the possibility that a narrower challenge aimed just at restrooms with closed stalls, where students wouldn't generally be partly or fully undressed where others can see them.
An excerpt from the long Roe v. Critchfield, decided last week by Ninth Circuit Judge Morgan Christen, joined by Judges Kim McLane Wardlaw and Mark J. Bennett:
Before the summer of 2023, public school districts in Idaho were free to adopt their own policies regarding students' access to [multi-occupancy] restrooms, locker rooms, and shower rooms. Approximately one quarter of Idaho's public schools had policies specifically permitting students to use the facilities corresponding to their gender identity. The Idaho Legislature altered that status quo by enacting Senate Bill 1100 (S.B. 1100), which now requires all public-school students in Idaho to use only the restroom and changing facility corresponding to their "biological sex." …
S.B. 1100 also requires that public schools provide a single-occupancy facility as a reasonable accommodation to a student who, for "any reason, is unwilling or unable to use a multi-occupancy restroom or changing facility designated for the person's sex and located within a public school building, or multi-occupancy sleeping quarters while attending a public school-sponsored activity." In order to access such a single-occupancy facility, the student must provide "a written request for reasonable accommodation to the public school." This accommodation does not allow students to access covered facilities designated for use by students of the opposite sex while opposite-sex students could be present. Finally, S.B. 1100 creates a civil cause of action for any student who encounters a student of the opposite sex in a covered facility. The statute entitles students to recover $5,000 from the public school for each such encounter….
The policy was challenged as violating the rights of transgender students, but the appellate court upheld the trial court's decision not to issue a preliminary injunction. As to the Equal Protection Clause, the court reasoned:
It is well-settled that legislative classifications based on sex call for a heightened standard of review. The Supreme Court has required that "a party seeking to uphold government action based on sex must establish an 'exceedingly persuasive justification' for the classification." Accordingly, the State "must show at least that the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives." "The justification must be genuine, not hypothesized or invented post hoc in response to litigation." "And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females." Heightened, or intermediate, scrutiny is thus satisfied when a policy "has a close and substantial bearing on" the governmental objective in question. Under [Ninth C]ircuit precedent, the same framework applies to classifications based on transgender status….
In applying intermediate scrutiny, we first consider whether the State has identified important governmental interests that the challenged legislation purports to serve. The State carried that burden here. S.B. 1100 identifies the legislature's objectives as "protecting the privacy and safety of all students" specifically "in restrooms and changing facilities where such person[s] might be in a partial or full state of undress in the presence of others." The statute memorializes the legislature's judgment that "[r]equiring students to share restrooms and changing facilities with members of the opposite biological sex" undermines the State's privacy and safety objectives and "generates potential embarrassment, shame, and psychological injury." In context, we understand S.B. 1100's use of "privacy" to refer to the State's goal of avoiding situations where students' unclothed bodies are exposed to members of the opposite biological sex.
SAGA does not dispute that protecting bodily privacy is an important governmental objective. See Byrd v. Maricopa Cnty. Sheriff's Dep't (9th Cir. 2011) (en banc) (noting our "longstanding recognition that the desire to shield one's unclothed figure from the view of strangers, and particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity" (internal quotation marks and citation omitted and alterations accepted)); see also Sepulveda v. Ramirez (9th Cir. 1992) (considering a male parole officer's insistence on observing a female parolee's production of a urine sample and explaining that "[t]he right to bodily privacy is fundamental").
The district court reasoned that the State's privacy interest is especially important for school-aged children who are still developing mentally, physically, emotionally, and socially, and that "asking them to expose their bodies to students of the opposite sex (or to be exposed to the bodies of the opposite sex) brings heightened levels of stress." Other circuits that have considered and invalidated laws or policies limited to transgender students' use of restrooms agree that protecting student privacy is an important governmental objective. The district court properly concluded, in accordance with our decisions in Byrd and Sepulveda, that the State's interest in protecting students' bodily privacy is an important objective for purposes of intermediate scrutiny.
Having concluded that the State identified an important governmental objective, our analysis turns to whether the State chose permissible means to achieve that objective, i.e., whether S.B. 1100 is substantially related to the State's objective in protecting student privacy. The district court concluded that S.B. 1100 is substantially related to Idaho's interest in protecting students' privacy because the facilities covered by S.B. 1100 are, "without question, spaces in school (and out of school [in the case of multi-occupancy sleeping quarters]) where bodily exposure is most likely to occur."
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. We do not presume that S.B. 1100's application to each type of facility will be substantially related to the State's objective of protecting student privacy. Rather, the outcome here is dictated by the type of challenge SAGA raises. To prevail on its facial challenge to S.B. 1100, SAGA must show that S.B. 1100's mandated sex-segregation of all covered facilities is unconstitutional; its equal protection claim fails if S.B. 1100's application to any of the covered facilities survives intermediate scrutiny.
In considering the different types of facilities covered by S.B. 1100, it 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. And we see no argument at this stage that S.B. 1100's mandatory segregation of these facilities on the basis of "biological sex" is not substantially related to the State's interests in: (1) not exposing students to the unclothed bodies of students of the opposite sex; and (2) protecting students from having to expose their own unclothed bodies to students of the opposite sex.
Because this is a facial challenge, our analysis does not change when considering S.B. 1100's discriminatory effect on transgender students because excluding all students, including transgender students who have not undergone gender-realignment surgery, from locker rooms and shower rooms designated for students of the opposite "biological sex" is substantially related to the same privacy interest. 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….
The court likewise concluded that the policy likely didn't violate Title IX:
[A provision of Title IX] carves out "living facilities" from Title IX's general antidiscrimination mandate: "Notwithstanding anything to the contrary contained in this chapter, nothing contained herein shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes." A Department of Education regulation states: "A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex." …
SAGA does not challenge the Defendants' authority to maintain the sex-segregated facilities at issue; rather, it argues that the State impermissibly discriminates by requiring transgender students to use facilities that do not align with their gender identity.
So framed, the parties' dispute narrows to a disagreement regarding the definition of "sex" as used in Title IX. Neither Title IX nor its implementing regulations defines the term…. Circuit precedent establishes that discrimination on the basis of transgender status is a form of sex-based discrimination. In Bostock v. Clayton County, Georgia (2020), the Supreme Court held that firing a worker based on the worker's transgender status constitutes unlawful sex discrimination under Title VII because "it is impossible to discriminate against a person for being … transgender without discriminating against that individual based on sex." We applied Bostock's reasoning to Title IX's protections against discrimination on the basis of gender in Doe v. Snyder (9th Cir. 2022) ….
Though we have extended Bostock's reasoning to Title IX, Bostock did "not purport to address bathrooms, locker rooms, or anything else of the kind," and it did not consider whether Title IX or its implementing regulations put states on notice that policies restricting access to these types of facilities on the basis of gender assigned at birth may constitute unlawful discrimination against transgender persons….
Other circuits have disagreed over whether Title IX's use of the word "sex" unambiguously refers to sex assigned at birth…. We have never addressed this question directly, and we need not reach it here ….
Title IX funding is distributed to the states pursuant to the Spending Clause of the Constitution. "Congress has broad power to set the terms on which it disburses federal money to the States, but when Congress attaches conditions to a State's acceptance of federal funds, the conditions must be set out 'unambiguously.'"
Because legislation enacted pursuant to the spending power is in the nature of a contract, recipients of federal funds must accept federally imposed conditions on funds voluntarily and knowingly. "States cannot knowingly accept conditions of which they are 'unaware' or which they are 'unable to ascertain.'" …
Applying the clear-notice rule here, we agree with the State that SAGA failed to establish that Defendants had adequate notice, when they accepted federal funding, that Title IX prohibits the exclusion of transgender students from restrooms, locker rooms, shower facilities, and overnight lodging corresponding to their gender identity. We recognize that "Congress need not 'specifically identify and proscribe' each condition" in Spending Clause legislation. But from the time of the enactment of Title IX and its implementing regulations, the scheme has authorized schools to maintain sex-segregated facilities, and contemporary dictionary definitions commonly defined "sex" in terms that refer to students' sex assigned at birth. Thus, this is an instance in which liability does not arise under Title IX unless the challenged conditions were set out "unambiguously."
And the court rejected plaintiffs' informational privacy claims as well:
The Supreme Court has recognized two types of interests protected by the right of privacy: "the individual interest in avoiding disclosure of personal matters" and "the interest in independence in making certain kinds of important decisions." The former interest, often referred to as the right to "informational privacy," "applies both when an individual chooses not to disclose highly sensitive information to the government and when an individual seeks assurance that such information will not be made public."
SAGA argues that by "excluding transgender students from facilities matching their gender identity, S.B. 1100 exposes their transgender status to others in violation of their constitutional right to privacy." We have not yet addressed whether an individual's transgender status is the type of information protected by this right, but assuming that it is, we conclude that SAGA did not show that it will likely succeed on this claim.
S.B. 1100 requires transgender students to use either the facility designated for persons of their "biological sex" or a unisex single-occupancy facility. The statute does not require or permit Defendants to disclose any information about a student's transgender status to a third party. SAGA may be correct that transgender students' use of single-occupancy facilities will invite unwanted attention from their peers. But S.B. 1100 requires schools to provide an accommodation to a student who for "any reason, is unwilling or unable to use a multi-occupancy restroom or changing facility designated for the person's sex." 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.
We do not preclude the possibility that SAGA may be able to show otherwise after the factual record is more fully developed; at this stage, we merely decide that the district court did not err by denying preliminary injunctive relief on the record currently available….
Erin M. Hawley (Alliance Defending Freedom) argued the case for defendants.
