Six transgender people sued over Idaho bathroom ban. What happens now?
In April, six transgender Idaho residents sued over the state’s new bathroom law, which makes it a crime for people to use restrooms or changing rooms that don’t align with their sex assigned at birth.
On Friday, attorneys presented their arguments over a request for a preliminary injunction, asking the court to prevent the law from taking effect as it applies to bathrooms.
U.S. District Judge Amanda Brailsford began the hearing by acknowledging that House Bill 752 had created “divisive emotions” in the state. The law, which the Republican-dominated Legislature passed by a large margin, makes it a misdemeanor to “knowingly and willfully” use a restroom in a government-owned building or place of public accommodation that doesn’t correspond with someone’s sex assigned at birth.
A second offense within five years comes with a felony and up to five years in prison.
The lawsuit, which calls the law one of the “most punitive and broadest-sweeping laws in the country,” names Attorney General Raúl Labrador and county prosecutors.
During the hearing, which lasted about an hour, both sides presented their arguments over the constitutionality of the law.
Kell Olson, an attorney with Lambda Legal, argued on behalf of the plaintiffs, some of whom attended the hearing. The law, he said, sorts trans men into women’s restrooms and trans women into men’s restrooms. Despite lawmakers’ arguments, he said this ban doesn’t make anyone in Idaho safer.
Olson raised concerns about the vagueness and enforceability of the law — an issue law enforcement brought forward when GOP lawmakers introduced the bill during this year’s legislative session. He also challenged the law’s constitutionality under the Equal Protection Clause of the 14th Amendment.
Arguing on behalf of Labrador and prosecutors, Idaho Solicitor General Michael Zarian said men and women should have separate spaces to “undertake private duties,” and have a right to shield their “unclothed” bodies. He said the Legislature heard evidence that there was a need to make sure these spaces remained safe, and argued against the ideas that the law was vague and unconstitutional.
Attorneys argue over vagueness claim
Throughout the hearing, Olson repeatedly cited testimony and comments from various law enforcement officers, who asserted that the law would be difficult to enforce, and said Idaho already has statutes in place to address problems in restrooms — a point the state disputed.
Olson said the plaintiffs were requesting preliminary relief specifically as the law applies to restrooms because that portion poses the most severe and unavoidable harms. Laws must prevent arbitrary and discriminatory enforcement and be clear about prescribed conduct, he said.
Olson also pointed to some of the exceptions written into the bill, including one that allows a person to use a restroom that doesn’t align with their sex assigned at birth if they are in “dire” need and it is the only restroom “reasonably” available at that time. He said those terms are not defined.
“When you are threatening people with criminal prosecution, potential imprisonment, you have to be absolutely clear about what they can and cannot do, and you have to be clear enough that law enforcement knows what to do when they show up,” Olson told reporters after the hearing.
“They failed on both of those counts to defend the law, and saying the law is vague and therefore we shouldn’t worry about it, because it won’t be enforced, is illogical and incorrect.“
Lawmakers said when discussing this bill that its intent was to protect women and girls, not to target transgender people. But this legislation, Olson said, requires no misconduct. Anyone who enters a restroom that doesn’t align with their sex at birth could be at risk.
The defendants and law’s supporters, he argued, ask the court to assume that transgender people pose more dangers, and that inclusive policies increase the risk of a person entering a restroom to do harm. But he called those assumptions illogical, saying research shows the opposite.
On the opposing side, Zarian emphasized a person’s right to safety and privacy. He said the Legislature heard testimony from people who felt uncomfortable when someone used a locker room whose sex assigned at birth differed from their own. The Legislature was motivated by concerns over people being in restrooms that don’t align with their sex at birth, he said, asserting men in women’s restrooms are more likely to commit safety violations.
He said the law is not vague, arguing that having sex-separated restrooms is and has been common practice. He also spoke to the exceptions in the law, saying that even if it might be difficult to prove someone is in dire need, that doesn’t make the law vague.
Throughout his arguments, Brailsford interjected a few times. She noted that the plaintiffs were specifically talking about restrooms, not changing rooms. Zarian countered, in part, by saying that even in common areas of restrooms, people may be partially undressed, and many restrooms have gaps between stalls.
She also asked how police would enforce the law, and whether there would uniformity across the state. Zarian said there are ways, but added that the question is not whether the regulation is difficult to prove, but rather whether it’s unclear what would need to be proved.
He said a tradeoff is inevitable, and the Legislature felt this path would best advance privacy and safety.
Law creates confusion, plaintiffs argue
The lawsuit, filed in April, alleges that the law violates the constitutional rights of transgender people and puts their safety and well-being at risk. The law forces transgender people to make an “impossible choice,” between using a bathroom that doesn’t align with their gender identity and risking “severe physical and psychological harms,” or breaking the law and facing prison time, the lawsuit said.
“This law upends public life not only for transgender Idahoans, but for everyone who uses public restrooms in Idaho,” the lawsuit said. “It creates confusion, increases suspicion and surveillance, and disrupts the status quo ante without any demonstrated need to do so.”
Emily Croston, staff attorney with the ACLU of Idaho, reiterated after the hearing that the law provides no standard for officers to enforce it. People in Idaho have been using restrooms that correspond with their gender identity for years, she said, and the “state can’t point to how that actually harms folks.”
“They’re criminalizing trans folks being present in public,” she said. She later added: “Are we just going to look at folks as they enter a restroom and determine whether we think they look enough like a man or a woman?”
Olson said this law would have real effects for him, a transgender man, and many others. “The law is so broad, it affects so many people, and it affects so many places, that yes, it would affect me and any other transgender person who ever comes to Idaho or lives in Idaho,” he said after the hearing.
Olson said that if he went out to eat with his family and wanted to wash his hands before dinner, he would have to consider how to proceed.
“Now I have to stop and decide, do I, if this law is in effect, do I go into the restroom that is illegal now, the men’s room, or do I walk into the women’s room and take all of the risk that that now comes with, whether that’s assault or harassment or someone calling the police,” he said. “Because now it looks like I’m violating the law. That’s the kind of confusion this law causes.”
