Ninth Circuit Declines to Block Idaho’s “Biological Sex” Restrictions for Multi-Occupancy School Restrooms, Locker Rooms, and Shower Rooms
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
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