Judge won't block Idaho bathroom ban; Indiana school asks SCOTUS to hear similar case

Two big moves this week re-centering efforts to bar transgender students from using the restroom that matches their gender identity.

Calling it a “difficult case,” U.S. District Judge David Nye nonetheless issued a ruling on Thursday to allow Idaho’s new bathroom ban law for the state’s public schools to go into effect in three weeks absent further court action.

The ruling was one of two moves this week that could bring laws and policies banning transgender students from using the restroom that matches their gender identity front and center in the national discussion over transgender rights — and the attacks on trans people from conservative legislatures across the nation.

Although the Idaho law targets transgender students for differential treatment — barring them from using the restroom or changing facility that accords with their gender identity — Nye, as other courts have done with other anti-trans laws, glosses over the larger anti-transgender context of this moment to blithely declare, “The Bill is not based upon animus towards those who identify as transgender, nor was it passed to relegate transgender students to the fringes of society,”

Instead, Nye wrote, “S.B. 1100 was enacted to protect the privacy of the sexes. A policy or statute can lawfully classify based on biological sex without unlawfully discriminating based on transgender status.”

According to the ACLU’s legislative tracker, though, S.B. 1100 was one of three anti-trans bills passed into law in Idaho this session — and one of eight anti-LGBTQ bills introduced in the Idaho legislature this year. All of this, moreover, comes in the context of an earlier anti-trans Idaho law banning trans girls and women from women’s student sports — a law that has been blocked by a district court in a decision that was affirmed on appeal this August.

If the plaintiffs in the Idaho case appeal, Nye’s ruling would face review from the U.S. Court of Appeals for the Ninth Circuit — the same appeals court that has blocked Idaho’s sports ban.

That appeal, however, might quickly be overshadowed by national events. Although bans on gender-affirming medical care for minors have garnered the most attention in recent months, a bathroom ban case has actually made it to the Supreme Court first this year.

Nye’s ruling is the latest in a series of decisions on such bans, with a circuit split already existing between the U.S. Court of Appeals for the Fourth Circuit and U.S. Court of Appeals for the Seventh Circuit — both of which concluded that such bans are impermissible — and the U.S. Court of Appeals for the Eleventh Circuit — which upheld a Florida school district’s ban.

A key conservative lawyer joined the efforts of an Indiana school district this week to ask the U.S. Supreme Court to take up its appeal of the Seventh Circuit ruling and, ultimately, allow such bans.

Paul Clement, the former George W. Bush administration solicitor general who unsuccessfully defended the Defense of Marriage Act at the U.S. Supreme Court a decade ago, is now representing the Metropolitan School District of Martinsville, an Indiana school district, in its defense of its anti-trans bathroom policy.

Clement is counsel of record on the certiorari petition, which was filed at the Supreme Court on Oct. 11 — National Coming Out Day — but only appeared on the court’s docket on Friday.

The petition asks the justices to answer the question: “Whether Title IX or the Equal Protection Clause dictate a single national policy that prohibits local schools from maintaining separate bathrooms based on students’ biological sex.”

In the petition, the Martinsville lawyers highlight the circuit split, argue that the Seventh Circuit’s decision is wrong, characterize the issue as “exceptionally important,” and state that the Martinsville case is an “excellent vehicle” for resolving the question (in other words, a good case that doesn’t have extraneous issues that could prevent the court from addressing the bathroom policy questions).

“There is no reason to put off resolution of this persistent circuit conflict that is proving profoundly disruptive for schools of all levels all throughout the country,” the lawyers conclude.

As of now, the response to Martinsville’s petition from the student challenging the school’s policy, identified as A.C. in court papers, would be due Nov. 13, but an extension could be sought. It is likely, though, that the preliminary briefing would be completed in time for the justices to hear the case this term if they wish to do so.

If that happens, a decision in the case would be expected by June 2024.

What happened in Idaho?

“The outcome of cases such as this are celebrated by some and lamented by others. Regardless of the Court’s ruling today, someone will feel left out,” Nye wrote in a hand-wringing opening section to his ruling denying the preliminary injunction sought by the transgender students — including a student group at Boise High School — who are challenging the law.

“Although it likely comes as little solace to Idaho’s transgender students who, as a result of the Court’s decision today, may have to change their routines, or who, regrettably, may face other societal hardships, the Court must stay within its lane,” Nye wrote. “Today, the Court reviews the challenged law and asks this simple question: have Plaintiffs convinced the Court the law is likely unconstitutional? The answer is no.”

The 37-page ruling came in an ongoing challenge to the law brought soon after the legislature passed the law. Nye had previously issued a temporary restraining order in the case, preventing the law, S.B. 1100, from going into effect on the eve of the new school year, so Thursday’s ruling overturns that.

“The Court’s previously entered TRO will end, and S.B. 1100 will take effect, 21 days from the date of this order,“ Nye wrote. The plaintiffs challenging the law thus have the ability to appeal Nye’s ruling — and seek an order keeping the law on hold during the appeal — before the law actually goes into effect.

Under the law, S.B. 1100, schools must have single-sex restrooms and changing facilities, and the definition of “sex” in the law is based not on an individual’s gender identity but rather “the immutable biological and physiological characteristics, specifically the chromosomes and internal and external reproductive anatomy, genetically determined at conception and generally recognizable at birth, that define an individual as male or female.”

In short, the law bans trans people from using the restroom or changing facility that corresponds with their gender identity. The law also applies to any school activity that includes overnight lodging, meaning that a trans girl would have to stay with the boys on an overnight trip.

A school that doesn’t enforce these requirements can face a lawsuit.

Highlighting the circuit split, Nye wrote, “The Court adds its voice to this divided landscape.”

Nye examined the equal protection claim brought in the cadse as a sex-based claim, writing, “The classification that is drawn by S.B. 1100 is based upon sex, not gender identity.” The court rejected plaintiffs’ claim that the law discriminates based on gender identity: “[B]ecause the definition of sex—in S.B. 1100 and in cases before this district, the circuit, and the Supreme Court—does not include gender identity, S.B. 1100 does not draw a line based upon gender identity, but on sex.”

Although, as a sex-based classification, Nye did consider the law under heightened scrutiny, he also quickly concluded, “There is no doubt S.B. 1100 is substantially related to the Government’s legitimate interest in said privacy.”

Looking at another case from the Ninth Circuit — Parents for Privacy v. Barr — where the appeals court “rejected a challenge to a policy that allowed transgender students to use restrooms, locker rooms, and showers that matched their gender identity” Nye found, “[W]hile somewhat perplexing to say aloud, it appears gender-inclusive policies are constitutional and sex-separate policies are constitutional. That is to say, Parents for Privacy’s holding that the Constitution does not require sex-separate facilities is not the same as a holding that the Constitution forbids sex-separate facilities.”

As to the Ninth Circuit ruling on the Idaho sports ban — Hecox v. Little — Nye distinguishes it by noting that “only transgender female athletes who were excluded under th[at] law,” while the bathroom ban “‘prohibits’ both transgender girls and transgender boys from using those facilities.”

Ultimately, Nye found that the plaintiffs “have not met their burden in showing they are likely to succeed on the merits of their Equal Protection claim.”

Nye reached a similar conclusion as to their Title IX claims, writing, “The bottom line is that Title IX may not preclude regulations based on, or incorporating, gender identity, but it does not require them either.”