A federal district court in Idaho just declined to halt the operation of a state law mandating that public schools separate their bathrooms and housing accommodations by biological sex.
The commonsense decision Thursday comes as more and more federal courts across the country conclude that state laws preventing the expansion of “gender identity” rights are constitutional.
The growing line of precedent cabining transgender arguments is good news for those who understand the category of biological sex to be more important than a subjective state of mind—which is the entire premise of gender identity.
For example, the U.S. Court of Appeals for the 6th Circuit upheld Tennessee’s law banning so-called gender-affirming care for minors in the state; the 11th Circuit upheld Alabama’s law prohibiting the same.
Neither federal court found the state laws to be a violation of a parent’s constitutional due process right to raise his or her children as desired. The 11th Circuit also held this year that a school’s sex-segregated bathroom policy isn’t a violation of the Constitution’s equal protection clause because it treats all students equally, regardless of sex.
In Idaho, in Roe v. Critchfield, a federal district court judge earlier had issued a temporary restraining order against the law to maintain the status quo. But after considering additional arguments by counsel, the court declined to block the law, finding that the plaintiffs had failed to meet their burden of proving that they had a substantial likelihood of ultimately winning the case.
However, the court did allow the legal challenge by an anonymous transgender student, known as Rebecca Roe, to proceed to trial. The judge said it was a “difficult case,” and this “area of law (and societal policy) is evolving.”
Roe, a 12-year-old biological boy who sought to use the girls’ bathroom at a middle school within the Boise, Idaho, school district, filed a lawsuit to invalidate Idaho’s law, known as SB 1100. (Having been the mother of two 12-year-old boys, I know full well that 12-year-old boys are hormonal cretins. What could possibly go wrong? *Eyeroll*)
Although the law requires public schools to maintain sex-separated bathrooms and overnight accommodations, it provides an option for schools to make a “reasonable accommodation” to any student who is “unwilling or unable to use a multioccupancy restroom or changing facility designated for the person’s sex.”
Dissatisfied with the accommodation carve-out, Roe claimed that the Idaho law violated the Constitution’s equal protection clause, Title IX of the Education Amendments of 1972, and Roe’s right to privacy.
The Constitution’s equal protection clause requires that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”
When considering a claim premised on sex or gender discrimination, a court must apply intermediate scrutiny review. That is, the government must establish that the challenged law furthers an important government interest and the means chosen to advance that interest must be substantially related to that interest.
In his opinion, Chief Judge David Nye found that the privacy and safety of students were important government interests, and that separating bathrooms based on sex was substantially related to those interests.
Nye also was not convinced that Roe’s claim was likely to succeed under Title IX—the federal law that prohibits discrimination on the basis of sex in any educational program that receives federal funding. Nye wrote that Title IX specifically allows for sex-separate facilities, and as a result, SB 1100 did not violate Title IX, but rather, adhered to it.
As for Roe’s claim that the law violated his right to privacy, Nye wrote that the issue was whether a “student must, against his or her wishes, be forced to change (or undertake other private duties) in the presence of someone of the opposite sex.”
The law, Nye determined, wasn’t based on any animus against transgender students, but rather was enacted to protect the legitimate privacy interests of the sexes. A statute can lawfully classify individuals based on biological sex without unlawfully discriminating based on transgender status.
Nye’s decision also hearkened to the 6th Circuit’s decision in upholding the Tennessee law banning “gender-affirming” medical interventions for minors.
The judge wrote:
The court, however, must stay in its lane. It cannot provide guidance on how elected officials should navigate these difficult situations. It can only decide whether the action they have taken withstands constitutional scrutiny. As the 6th Circuit aptly noted just a few weeks ago with respect to regulations about medical care for transgender minors: ‘[L]ife-tenured judges construing a difficult-to-amend Constitution should be humble and careful about announcing new substantive due process or equal protection rights that limit accountable elected officials from sorting out these medical, social, and policy challenges.’
The case now will proceed to a full trial on the merits of Rebecca Roe’s claims.
The outcome of this latest legal challenge based on “gender identity,” albeit a preliminary one, is a timely reminder that, as Nye wrote, “in a pluralistic society … everyone cannot win every time.”
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