Federal judge puts Idaho schools bathroom ban on hold before new school year starts

"School districts may choose how to organize their bathrooms," U.S. District Judge David Nye ruled. "[T]he State of Idaho will not be mandating that decision at this time."

A federal judge in Idaho on Thursday issued an order putting the state’s new law banning transgender students from using the restroom in accordance with their gender identity on hold, just days before the start of school in the state.

“S.B. 1100 will not be in effect when school starts on August 16, 2023,” U.S. District Judge David Nye wrote in his brief, 9-page decision granting a temporary restraining order.

Highlighting the tentative nature of the ruling, Nye at one point referred to it as a “pre-preliminary” ruling — reasoning that a final judgement in challengers’ favor would permanently apply; a preliminary injunction would be … preliminary; and this, the TRO, is pre-preliminary.

The order from Nye — a Trump appointee who was initially nominated under the Obama administration — was ultimately a narrow ruling that preserves the status quo “as it existed prior to the parties’ disagreement” by keeping the new law on hold for now.

In that sense, Nye’s order stands in contrast — as an exercise in judicial minimalism — to the decision of a panel of the U.S. Court of Appeals for the Sixth Circuit earlier this summer allowing Tennessee’s ban on gender-affirming medical care for minors to go into effect. In that decision, the 2-1 panel majority similarly concluded that it was uncertain of the ultimate outcome of the case — but, despite the effect on minors’ medical care, the majority there upended the status quo by allowing the ban to go into effect.

In the Idaho case, a transgender student and high school student group sued in the state in July — represented by Lambda Legal; Alturas Law Group; and Munger, Tolles, and Olson — days after the law went into effect.

Notably, the Department of Justice weighed in earlier this week with a “statement of interest” filing supporting the challenge.

On that question — the substance of whether the state’s new law is constitutional or not — Nye, effectively, punted. Discussing the circuit split that Law Dork covered last week in discussing the recent ruling of the U.S. Court of Appeals for the Seventh Circuit (which, itself, is referenced in Nye’s opinion), Nye hedged — for now.

As “the most fitting approach,” Nye chose to issue the temporary restraining order.

“School districts may choose how to organize their bathrooms, changing facilities, and overnight accommodations—whether that is sex-separate or transgender-inclusive; whether it is consistent with what it did last year or not,” he concluded. “But the State of Idaho will not be mandating that decision at this time.”

The TRO will remain in effect until the court rules on the preliminary injunction request, absent some other unexpected order. A hearing on the preliminary injunction request is currently set for Sept. 13.