Judge David Nye, the United States Chief District Judge for the District of Idaho, has blocked the implementation of legislation passed during the 2023 legislative session that would have created consistency statewide in how children use school bathrooms in Idaho public schools. His decision came just before the return to classes last week.
During the fall and early winter of 2022, school boards across Idaho were discussing policy changes to address the issues surrounding transgenderism, gender identity, and sexual orientation as these topics related to the use of public school bathrooms, locker rooms, and other changing facilities, as well as school trips with overnight accommodations. Idaho Dispatch reported on it in this article.
The issue became very contentious in Caldwell in January 2023 when a crowd of over one thousand that included parents, community members, and state legislators lined up outside in freezing temperatures to be heard by the Caldwell School Board. The vast majority of people were not heard by the board. We reported on that incident here. The district policy decision was pushed back, to be reconsidered at the February meeting. By then, draft legislation had been introduced to address the issue statewide. The Caldwell School Board tabled the issue, pending the outcome of the legislation.
The legislation, Senate Bill 1100, passed the Senate with 28 ayes and 7 nays, passed the House with 59 ayes, 10 nays, and 1 absent, and was signed into law by Governor Brad Little on March 22, 2023 with an effective date of July 1, 2023. This added a new Chapter 66 to Title 33 in Idaho law, which governs education. You can view the roll call vote here.
The text of the bill reads in part,
33-6603. SCHOOL RESTROOMS.Advertisement
(1) Every public school restroom or changing facility accessible by multiple persons at the same time must be:
(a) Designated for use by male persons only or female persons only; and
(b) Used only by members of that sex.
(2) No person shall enter a multi-occupancy restroom or changing facility that is designated for one sex unless such person is a member of that sex. The public school with authority over the building shall ensure that all restrooms and changing facilities provide its users with privacy from members of the opposite sex.
(3) In any other public school setting where a person may be in a state of undress in the presence of others, school personnel must provide separate and private areas designated for use by persons based on their sex, and no person may enter these private areas unless such person is a member of the designated sex.Advertisement
(4) During any school authorized activity or event where persons share overnight lodging, school personnel must provide separate sleeping quarters for members of each sex. No person shall share sleeping quarters, a restroom, or a changing facility with a person of the opposite sex, unless the persons are members of the same family.
Just five days after the new law went into effect, an Idaho student who uses the pseudonym Rebecca Roe, along with a group called the Sexuality and Gender Alliance (SAGA) filed a legal challenege to Senate Bill 1100 in federal court. SAGA appears to be the name used by clubs on college campuses across the country that are support groups and/or activist groups for LGBTQ students. Court documents label the SAGA in this lawsuit as an association. There is little available information regarding an association of these clubs, but it may be linked by this organization, the GSA Network: What is a GSA club? – GSA Network. Additional information is found here: PRIDE Club – NTHS School Counseling (weebly.com)
The case is in the court of Chief U.S. District Judge David C. Nye for the District of Idaho. Attorneys representing the plaintiffs are listed as employees of Lambda Legal, a firm headquartered in New York with offices in Chicago, Dallas, LA, and more that focuses on LGBTQ issues, as well as the firm Munger Tolles & Olson, LLP which has offices in Los Angeles, San Francisco, and Washington, D.C. There are a total of 12 attorneys listed in the court documents representing the plaintiffs in the case.
“On July 6, 2023, Plaintiffs filed the above-entitled civil rights action challenging Idaho Senate Bill 1100 (“S.B. 1100”). Dkt. 1. S.B. 1100 was adopted on March 22, 2023, took effect on July 1, 2023, and requires, among other things, that students in Idaho public schools use the bathroom or locker room that corresponds with his or her biological sex, i.e. the person’s sex assigned at birth. Plaintiffs allege this law is unconstitutional and disproportionately harms students who identify as transgender. “
Documents shown here are the filings made up to and including August 21, 2023:Lawsuit challenging SB1100
Because it will take a substantial amount of time to conduct discovery in the case, the plaintiffs asked the court for a temporary restraining order blocking the implementation of SB1100. The court explains the difficulty in balancing the arguments by both sides regarding their constitutional rights and protections, and cites several cases as well as several recent decisions in the circuit courts. Ultimately the court’s decision on the temporary restraining order was to halt the implementation of Chapter 66, Title 33 Idaho Code prior to the school year beginning last week.
“Today, the Court puts a pause on S.B. 1100. It does not find it unconstitutional. It does not find it constitutional. This is not a full adjudication of any argument on the merits. The Court is simply holding S.B. 1100 in abeyance and preserving the situation as it existed prior to the parties’ disagreement, which is that S.B. 1100 will not be in effect when school starts on August 16, 2023. 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. But the State of Idaho will not be mandating that decision at this time.”
Representative Ted Hill (R-Eagle, D14) was the House floor sponsor of SB1100. Yesterday he told the Idaho Dispatch,
“The injunction to stop the institution of the Bathroom Bill policy outlined in SB1100 by Judge Nye is a real disappointment. The school boards and schools were desperate for a concise policy to answer parents and their rights to know their children will be safe at school.
This legislation was to ensure that public schools maintain separate bathrooms, locker rooms, dressing areas and overnight accommodations for biological boys and biological girls, while additionally the school would provide reasonable accommodations for any student unwilling or unable to use multi-occupancy facilities. The key here is all rights are being recognized. The rights for young girls to be safe, secure and comfortable in a place where they are most vulnerable and the rights for young boys to be safe, secure and comfortable in a place where they are most vulnerable, and then the rights for everyone else to be safe, secure and comfortable in a place where they are most vulnerable. Finally, and most importantly, the rights of parents to know their children are safe and secure when they are at school.
This injunction does not mean an end to this new policy, but it is just a hold for now. Schools are to revert to the policy they had in place before. This is less than encouraging as we will return to the uncertainty and chaos that was seen at many school board meetings. The hope is this will soon resolve, and this policy can be immediately instituted.”
Scott Graf, Communications Director for the Idaho State Department of Education, responded to our request for comment by saying,
“The department’s policy is to refrain from commenting on specific aspects of pending litigation, but we continue to confer with the Office of the Attorney General on the broader case going forward. “
The court has scheduled a motion hearing in this case for September 13 at 9am. You can view the hearing schedule here: U.S. District Court Calendar (uscourts.gov) using case number 1:23-cv-00315-DCN.
Photo credit to BrownsvilleRadio.com
Tags: 2023 Idaho Legislature, Bathroom Bill, Caldwell School Board, Caldwell School District, Gender Identity, Judge David Nye, Lambda Legal, LGBT, Munger Tolles and Olson LLP, Representative Ted Hill, School bathrooms, Senate Bill 1100, Sexuality and Gender Alliance (SAGA), Transgender