Activists Sue Idaho for Recognizing Boys and Girls Are Different

When you walk into a government building or school, you typically expect to find two or three kinds of bathrooms: men’s, women’s, and perhaps a single-occupancy unisex or family bathroom.

Men and boys are expected to go in the men’s restroom, women and girls in the women’s restroom, and individuals or families that might desire additional privacy or space in the unisex bathrooms. Sex-specific intimate spaces—spaces where one might undress and be more vulnerable, like a bathroom or locker room—have long been the norm in American society, protecting everyone’s privacy, safety, and dignity.

Last year, Idaho passed a law to reflect this principle, requiring K-12 schools to designate their bathrooms, locker rooms, and overnight accommodations by sex, as well as reasonably accommodate those who prefer single-occupancy facilities. But activists are challenging this law, wanting to designate such spaces on the basis of gender identity—in other words, allowing men who identify as women to use women’s spaces and vice versa.

What does Idaho’s law say?

In March 2023, Idaho passed SB 1100. The law states that there are “real and inherent physical differences between men and women” and that “every person has a natural right to privacy and safety in restrooms and changing facilities.”

On this basis, Idaho’s law requires that every multi-occupancy changing room and restroom be designated by sex, and accordingly defines “sex” as “the immutable biological and physiological characteristics … genetically determined at conception and generally recognizable at birth, that define an individual as male or female.” SB 1100 also stipulates that in any other public-school setting where a person may be undressed, such as in sleeping quarters on an overnight trip, the school must provide designated facilities by sex.

In addition, the law says that public schools must provide reasonable accommodation to anyone who, for any reason, does not want to use a multi-occupancy facility. All that is required is a written request, and the school must provide the student with a reasonable single-occupancy space.

Why have sex-specific facilities?

Idaho’s law reflects the commonsense need for both the privacy and safety of students. As the law states, “Requiring students to share restrooms and changing facilities with members of the opposite biological sex generates potential embarrassment, shame, and psychological injury to students, as well as increasing the likelihood of sexual assault, molestation, rape, voyeurism, and exhibitionism.”

Sadly, such concerns aren’t hypothetical.

• In 2021, a male student wearing a skirt sexually assaulted a female student in the girls’ bathroom of a Loudoun County, Virginia, school.
• In the spring of 2023, an 18-year-old male student who identified as female allegedly exposed himself to a 14-year-old female student in the girls’ shower room of a Wisconsin school.
• On an overnight school trip in June 2023, a school district in Colorado tried to force an 11-year-old girl to share a room with a male student who identified as female. ADF is representing the family against the school.

As these examples demonstrate, when the sex-specific nature of facilities for changing or showering is neglected, it is women and girls who bear the brunt of the consequences.

Designating such facilities by sex has been a widespread practice for thousands of years and has long been recognized in federal and state law. As the late U.S. Supreme Court Justice Ruth Bader Ginsburg once wrote, “[s]eparate places to disrobe, sleep, [and] perform personal bodily functions are permitted, and in some situations required, by regard for individual privacy.”

Activists’ legal arguments fail

After Idaho passed its commonsense law, activists challenged SB 1100 in court, arguing that the Constitution and Title IX prohibit the state from protecting male and female intimate spaces from intrusion by the opposite sex. But no such provision in the Constitution or Title IX lends credence to this theory.

For one, there is no constitutional guarantee to use a bathroom, locker room, or overnight accommodation designated for the opposite sex, and no federal statute prohibits a state from maintaining sex-specific bathrooms, locker rooms, and overnight accommodations for public school students. Likewise, Title IX contains explicit provisions allowing for sex-based designations in private spaces.

The science is also against the activists’ claims. The “evidence” they cite, which relied on the testimony of their expert witness Dr. Stephanie Budge, is flawed. First, Dr. Budge claims that “gender identity” determines sex. But this definition of “sex” is contrary to the Supreme Court’s equal-protection jurisprudence and the scientific authorities on which Dr. Budge herself relies. Second, Dr. Budge asserts that “gender-affirming” bathroom use is necessary for the well-being of transgender-identifying students, but the scientific literature does not support this. And tellingly, the lead study she cites—supposedly supporting her assertion that single-user bathrooms are inadequate accommodations—supports providing single-occupancy spaces as Idaho’s law does.

Based on these arguments, a district court ruled in favor of Idaho, but after the case was appealed to the U.S. Court of Appeals for the 9th Circuit, the court halted enforcement of Idaho’s law. That’s why Idaho Attorney General Raúl Labrador, together with attorneys from ADF, filed a brief with the 9th Circuit, urging it to uphold the district court decision allowing Idaho to protect the privacy, safety, and dignity of all K-12 students in public schools.

Roe v. Critchfield

• March 2023: Idaho passed S.B. 1100 to protect the important safety and privacy interests of schoolchildren in intimate spaces.
• July 2023: Activists sued Idaho State Superintendent of Public Instruction Debbie Critchfield and the state board of education, demanding that K-12 public schools force girls to share private spaces with men and vice versa.
• Oct. 12, 2023: A district court upheld Idaho’s commonsense law. Activists appealed the ruling to the 9th Circuit.
• Oct. 26, 2023: The 9th Circuit granted the activists an injunction pending appeal, halting enforcement of the law.
• December 2023: Idaho Attorney General Raúl Labrador and attorneys from ADF filed a brief with the 9th Circuit, urging the appeals court to uphold the district court decision allowing Idaho to protect students’ privacy and safety in bathrooms, locker rooms, and overnight accommodations.