Photo by Juan Marin on Unsplash
Erin In The Morning is a reader-supported publication. To receive new posts and support my work, consider becoming a subscriber.
Today, U.S. District Court Judge Amanda K. Brailsford, a Biden appointee, issued a 30-page ruling granting a preliminary injunction blocking enforcement of Idaho’s H.B. 752, the felony bathroom ban—but it contains a major caveat: enforcement is only blocked when a single-user restroom is not available on the same floor. The law, set to take effect July 1, criminalizes transgender people for using restrooms consistent with their gender identity in both government buildings and private businesses, making it the most extreme bathroom ban in the nation. A first offense is a misdemeanor carrying up to a year in jail; a second offense is a felony carrying up to five years in prison; and under Idaho’s persistent violator statute, a fourth offense could carry life. The court found the law unconstitutionally vague, with no adequate standards for law enforcement to determine when or how to enforce it. Yet the ruling falls far short of fully protecting transgender Idahoans, and could result in the arrest of trans people who are unaware that they must check for single-user restrooms before entering a multi-user facility consistent with their gender identity.
“The Court enjoins enforcement of H.B. 752 as against all transgender people who seek to use a restroom in a government-owned building or place of public accommodation in Idaho consistent with their gender identity wherever: (1) the covered restroom designated for use by sex is a single-user facility; or (2) when a single-user restroom is not available because no single-user restroom exists on the same floor as the multi-user facilities or all single-user restrooms on the same floor as the multi-user facilities are occupied or not in service,” reads the ruling.
In practice, this means the law is only blocked when no single-user option exists—creating a regime in which transgender people must use single-user facilities whenever one is available on the same floor, or face potential criminal charges for using the multi-user restroom that matches their gender identity. Hospitals often have multi-user and single-user restrooms on the same floor. The same is true of airports. It applies at universities, shopping malls, convention centers, and large retail stores that have added family restrooms, and at any government building or private business that has upgraded its facilities to include a single-user option. The bitter irony is that single-user restrooms were added to many of these buildings specifically to be more inclusive of TGNC people—and under this ruling, those very restrooms become the mechanism by which trans people are segregated from everyone else.
The ruling has been widely reported as a clear victory for transgender rights, with Lambda Legal’s headline declaring “Judge Blocks Idaho Law Criminalizing Transgender People’s Bathroom Access” and the ACLU of Idaho stating that “trans folks in Idaho can continue participating in public life without the threat of being arrested for using the bathroom,” an obviously incorrect statement given enforcement is still very possible if a single-use bathroom is available. The national ACLU posted on social media that “a federal judge temporarily blocked a bathroom ban in Idaho” and called it “a win for trans rights.” None of these statements mention the single-user limitation. Bloomberg Law reported that the judge “blocked enforcement” of the ban. A transgender person in Idaho reading this coverage could reasonably believe the law has been fully blocked—and could face criminal charges for acting on that belief.
It is notable that the law was indeed partially blocked, and the ruling will still protect transgender people’s ability to use restrooms consistent with their gender identity in many common situations—such as in buildings where no single-user facility exists on the same floor, which in practice covers most gas stations, restaurants, and smaller businesses across Idaho. The court found H.B. 752 unconstitutionally vague, ruling that its exceptions for “reasonably available” restrooms and “dire need” provide no objective standards for enforcement. Idaho’s own law enforcement agreed—the Idaho Chiefs of Police Association testified that “this proposal presents significant practical enforcement challenges for law enforcement offices in the field… it is unclear how an officer responding to a call would reasonably determine whether someone was truly in ‘dire need,’ creating an unenforceable standard that places officers in a difficult position.” When pressed on how officers would determine a person’s biological sex, the state suggested during oral argument that law enforcement could use DNA testing, which was unacceptable to the court.
When asked by The Advocate about the limited relief, Kell Olson from Lambda Legal acknowledged the limitations. See the update from Christopher Wiggins at The Advocate:
“Olson told The Advocate that the narrower relief reflects the preliminary stage of the litigation rather than the full scope of the challenge. “The lawsuit asks for the law to be blocked as to all restrooms, period,” Olson said. “The preliminary relief is slightly narrower.” He said attorneys sought immediate protection in situations where transgender people otherwise would have no practical alternative. “If you do not have a gender neutral option that is available nearby, then you can access the restroom consistent with your gender identity,” Olson said. “That was our main concern: to make sure that people had a ready and safe option anywhere they found themselves.”
Olson acknowledged that some enforcement scenarios remain possible while the case proceeds. “Technically, there will still be the ability for enforcement,” he said, pointing to locker rooms and situations where a gender-neutral option is immediately available. But he said the ruling removes enforcement in a substantial number of circumstances and ensures transgender people have a restroom option throughout the state.”
There are mechanisms by which the scope of relief could be expanded. The plaintiffs can file a motion to clarify or broaden the injunction, and the court reserved the equal protection and informational privacy claims for the merits stage—where a ruling on those grounds could block the entire law without the single-user limitation. The case will almost certainly be appealed to the Ninth Circuit, where the precedent on transgender bathroom access is mixed. H.B. 752 was set to take effect July 1; it will now go into effect with the injunction in place, meaning the law is on the books but partially blocked with these important limitations while the legal fight continues.
EITM reached out to ACLU, and ACLU Idaho but did not receive a response by the time of this publication.
Erin In The Morning is a reader-supported publication. To receive new posts and support my work, consider becoming a subscriber.
From Erin In The Morning via This RSS Feed.