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Judge hears arguments over preliminary injunction in Idaho transgender bathroom law

Joe Gratz
Flickr Creative Commons

Plaintiffs argued to keep status quo, while Idaho defense argued for “binary” and “biological” standards

Federal Judge David Nye on Wednesday heard arguments for and against a preliminary injunction for Senate Bill 1100, an Idaho law meant to prevent transgender students from using school facilities that correspond with their gender identity.

The hearing was held at the James A. McClure Federal Building and U.S. Courthouse in downtown Boise.

The hearing comes one month after the U.S. District Court implemented a temporary restraining order blocking enforcement of the law on Aug. 10.

The temporary restraining order stops enforcement of the law until the court can rule on the plaintiffs’ motion for a preliminary injunction, which would further prevent the ban from going into effect until the lawsuit is settled.

Nye did not make a decision the same day as the hearing for the requested preliminary injunction, and there is not a set date for him to make a decision on the motion. But in court, he said he anticipates a decision will be ready “very soon.”

The lawsuit, Roe v. Critchfield, was filed in federal court on July 6 by attorneys from Lambda Legal, an LGBTQ+ rights legal organization; Munger Tolles & Olson, a California-based law firm that works with civil rights issues; and Alturas Law Group, a law firm based in Hailey.

The attorneys filed the lawsuit on behalf of Boise High School’s Sexuality and Gender Alliance club, and Rebecca Roe — a rising seventh-grade transgender student in the Boise School District who is using anonymity to protect her identity. In the lawsuit, plaintiffs claim the law violates the Equal Protection and Due Process Clauses of the 14th Amendment and Title IX of the Education Amendments of 1972 by singling out transgender youth for discriminatory treatment.

The plaintiffs are suing State Superintendent of Education Debbie Critchfield, the Idaho State Board of Education and the Boise School District.

Plaintiffs argue keeping status quo will prevent stigmatization

The hearing began with Lambda Legal senior counsel Peter Renn, who focused on the psychological health impact and stigmatization that transgender students would face if the law were enforced, citing the experiences of his clients.

"It felt good to start the school year without worrying about how this law would affect my day, and I hope that will continue. I’m proud to help other students go to school without being singled out for different treatment."
–plaintiff Rebecca Roe said in a written statement, provided to the Sun by Lamda Legal

Renn said the law singles out transgender students in schools, an experience that cisgender students do not experience.

“Living in a manner consistent with one’s gender identity is key to treating gender dysphoria,” Penn said, citing data from Dr. Stephanie Budge, a licensed psychologist and professor at the University of Wisconsin with expertise in LGBTQ+ mental health.

Another main point plaintiffs argued was that before Senate Bill 1100 was signed into law, many Idaho schools already had plans in place to accommodate facilities that worked for transgender students. The new law, plaintiffs argued, undermines those individual school policies.

Kell Olson, a staff attorney at Lambda Legal, told the Idaho Capital Sun that his legal team’s goal is to receive a preliminary injunction to keep the status quo in Idaho schools.

“Our position is that basic humanity is not a new thing, it is a long standing right that’s recognized in the law,” Olson said in an interview. “And the basic ability for transgender students to be able to move throughout the day and focus on learning is not a new concept. It’s a basic human concept that the law does recognize, and we’re hopeful that the judge will continue.”

Idaho defense argues for “binary” and “biological” standards

During the hearing, state defense attorney Lincoln Wilson said that previous U.S. Supreme Court rulings have a “long tradition in this country of separating sexes,” and that U.S. laws have relied on “binary” and “biological sex” as a standard to underly equal protection cases on sex discrimination.

Wilson rejected the plaintiff’s argument that the law discriminates against “persons with gender dysphoria,” arguing that their claims are misleading since the bill does not explicitly use the word transgender.

Wilson also rebutted the plaintiff’s evidence from Dr. Budge’s research, who he said was “unreliable” as a legal source as an LGBTQ+ medical advocate.

Recap of Senate Bill 1100

Senate Bill 1100, which took effect July 1, requires public schools to maintain two separate multi-occupancy restrooms, showers, changing facilities and overnight accommodations for students based on their sex assigned at birth.

It also allows students to sue the school for a minimum fine of $5,000 “for each instance that the student encountered a person of the opposite sex while accessing a public school restroom, changing facility, or sleeping quarters designated for use by aggrieved student’s sex.”

The bill passed the Senate in a 28-7 vote, and it passed the House with a 59-10 vote with one representative absent. Idaho Gov. Brad Little signed it into law on March 22.

This article was written by Mia Maldonado of the Idaho Capital Sun.

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