Six transgender Idahoans file federal suit against the state

Six transgender Idahoans filed a federal lawsuit Thursday in a challenge to Idaho’s new law barring them from using restrooms in both government buildings and private businesses that align with their gender identity. 

House Bill 752 was signed by Gov. Brad Little on March 30 and was one of several efforts brought forward by legislators during this year’s legislative session restricting what facilities a transgender person can use. Though the lawsuit looks strictly at bathroom access, Idaho’s law also applies to locker rooms and shower rooms and bars anyone from “knowingly and willfully” entering a restroom or changing room designated for use by the opposite biological sex.

Though nine states and Puerto Rico have passed similar legislation, these laws apply to government buildings and K-12 public schools. Idaho’s law is the only one in the nation that applies to private business. While three other states also attach criminal penalties for violation of their respective bathroom laws, Idaho’s violations are the “steepest,” with associated prison sentences for repeat violations, the ACLU of Idaho said in a release.

“HB 752 presents transgender individuals with an impossible choice: either use a restroom that does not align with your gender identity and risk physical and psychological harm,” Paul Southwick, legal director for the ACLU of Idaho, said, “or continue using a restroom that aligns with your gender identity and risk a criminal record and imprisonment.”

Barbara Schwabauer, a senior staff attorney for ACLU’s LGBTQ & HIV Rights Project, said a central contention of the suit is that the law remains “unconstitutionally vague” by not giving individuals “clear notice” of which type of conduct is prohibited by the law.  

The lawsuit asserts the prohibitory law “does not provide sufficient notice to the public of what it means for a restroom to be ‘designated for the opposite biological sex.’” In failing to define “designated” or “biological sex,” the suit states the law will create confusion for transgender individuals to determine what restroom they should be using. 

Kell Olson, an attorney with Lambda Legal, said the result of the law will be transgender individuals trying to comply by entering bathrooms that don’t align with gender identity and having others in the bathroom (observing the difference in gender identity and bathroom selection) perceive they are violating the law.

"This law leaves transgender people in the impossible and exhausting position of trying to determine what is allowed on a daily basis, almost anywhere in their public lives,” Olson said.

Diego Fable, a transgender man and plaintiff in the suit, said he has been using men's restrooms without issues for years but would be faced with a difficult choice of avoiding going out altogether in order to avoid compromising safety and mental health as a result of potential confrontation in a bathroom. Fable said he has since made the decision to relocate, perceiving it has become “too dangerous” to stay in Idaho with the new law in place. 

“This is heartbreaking because I consider Idaho my home and I'd be leaving behind a close-knit community I've developed while living here,” Fable said. “But living in fear every time I leave the house is not sustainable.”

The law has several exceptions for entering a bathroom of the opposite sex, including the performance of custodial duties, rendering medical aid and being the only available facility when a person is in “dire need of urinating or defecating.” The suit asserts these exemption fail to clearly specify when “it exempts otherwise prohibited conduct,” leading to a violation of the Due Process Clause of the 14th Amendment.

An additional exception in the bill allows for a single-use restroom designated for the opposite sex to be utilized when it is the only one “reasonably available” at the time. Southwick said this leaves both transgender individuals and law enforcement incapable of determining when a violation took place without this availability being defined.

In another claimed due process violation, the suit states Idaho’s law violates individuals' right to informational privacy by forcing individuals to disclose their transgender identity to assert their compliance with the law.

Schwabauer said the result of this forced disclosure is transgender people being subject to “inspection and confrontation” and an increased risk of violence and harassment. 

“My job requires me to travel to various offices for clients throughout the normal course of my work,” Amelia Milette, a transgender woman and plaintiff in the suit, said. “And as a result of this law, I can no longer assume I'll have access to a safe restroom when I am simply doing my job.” 

The suit further alleges that Idaho’s law violates the Equal Protection Clause of the 14th Amendment because of its discriminating on the basis of sex and transgender status.

“Discrimination based on sex and transgender status is subject to heightened scrutiny, which places the burden on the government to show that the law substantially advances an important governmental interest,” Schwabauer said. “It simply cannot do that for HB 752. Instead, the law undermines the health, safety and privacy of transgender Idahoans.”

The legal challenge of Idaho’s law was brought forward by the American Civil Liberties Union, the ACLU of Idaho and Lambda Legal. It names Idaho Attorney General Raúl Labrador and each of Idaho’s 44 county prosecutors as defendants.

The suit firstly requests the court to certify the challenge as a class action suit, with the class applying to all transgender people seeking to use a restroom consistent with their gender identity in both government-owned buildings and places of public accommodation, including private businesses.

To prevent potential harms arriving from the law, the suit is also requesting the court issue a declaratory judgement stating the enforcement of HB 752 in restrooms is “unconstitutional and unlawful.”