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Transgender Idahoans Challenge Criminal Restroom Ban in New Federal Lawsuit

BOISE, Idaho – Six transgender residents of Idaho have filed a lawsuit in federal court challenging H.B. 752, a new state law prohibiting them from using sex-designated public restrooms in government-owned buildings and private businesses that are open to the public consistent with their gender identity, arguing the law violates their constitutional rights to due process, equal protection, and privacy. The challenge was brought by the American Civil Liberties Union, ACLU of Idaho, Lambda Legal, and the law firms of Munger, Tolles & Olson LLP, and Alturas Law Group, PLLC.
H.B. 752, signed into law by Idaho Gov. Brad Little earlier this year, makes the first offense a misdemeanor with up to one year in prison, and a second offense a felony with up to five years in prison. It applies to all government-owned buildings and private businesses that are open to the public, such as libraries, rest stops, airports, malls, gas stations, restaurants, entertainment venues, hospitals, and other businesses.
“When this law was put forward, I felt a heavy lump grow in my chest,” said Diego Fable, an Idaho transgender man and plaintiff in the lawsuit. “I knew this would make my life so much harder. I’ve been enjoying life as a man and using the men’s restrooms hasn’t been a big deal. But this law would force me to use the women’s facilities, and doing so would only invite suspicion, questions, and raised eyebrows. I would have to face tough choices every time I leave my home: Do I know the restroom situation when I go out to eat with my friends? Do I know the restrooms available when I go to public parks to go birding? What do I do while I’m at work all day? Ultimately, complying with this law would be extremely isolating. The only safe option truly available is to just stay home – or leave the state entirely, leaving my treasured friends and community behind.”
“HB 752 will severely, negatively impact my ability to safely engage in public life,” said Amelia Milette, a transgender woman, lifelong Idahoan, and plaintiff in the lawsuit. “As a transgender woman, I’ve used women’s bathrooms for years without encountering a problem or having another woman take issue with my presence. My job requires me to be out in the community through the normal course of my work, and as a result of this law, I no longer can assume I’ll have access to a bathroom facility that matches my gender. It forces me to compromise my privacy and safety by using a facility that doesn’t align with how I present myself in my daily life. I now have to evaluate every social activity I participate in against the risk I’ll experience if I need access to a bathroom facility. This new law does not protect anyone. It only puts people like me in danger.”
“Today’s lawsuit challenges H.B. 752 as an unconstitutional intrusion on the fundamental rights of Idahoans,” said Paul Carlos Southwick, legal director for the ACLU of Idaho. “H.B. 752 has a clear discriminatory intent, but its prohibitions and exceptions are vague, forcing Idahoans and law enforcement alike to guess at its meaning. The law invites intrusive stops, questioning, and even detention based on appearance alone. It also pushes the government into one of the most private areas of our lives, undermining the basic Idaho value that people should be left alone in matters of personal privacy.”
“This law is a dangerous and discriminatory effort to push transgender people out of public life,” said Barbara Schwabauer, senior staff attorney for the ACLU’s LGBTQ & HIV Rights Project. “If you cannot use the restroom at work, you cannot go to work. If you cannot use the restroom at school, you cannot go to school. H.B. 752 undermines the freedom of our clients to live their lives with dignity, and we will do all we can to block it completely.”
“There can be no doubt that this law was intended to erase the very existence of Idaho’s transgender community,” said Kell Olson, Counsel and F. Curt Kirschner, Jr. Strategist for LGBTQ+ Seniors for Lambda Legal. “Not only does H.B. 752 forbid transgender Idahoans from using restrooms that match their gender identity, but it criminalizes those who do so, even when there is no gender-neutral option. Even Idaho law enforcement opposed H.B. 752, recognizing its impracticality and unenforceability. We stand today with our plaintiffs to make it clear that transgender Idahoans will not be forced out of public life.”
The Idaho Fraternal Order of Police (FOP) and the Idaho Chiefs of Police Association opposed H.B. 752, noting there is no “clear or reasonable way” to determine a person’s sex at birth during a field contact without engaging in “invasive and inappropriate” questioning or searches.
Analyses of public safety data have found policies inclusive of transgender people’s access to public accommodations have no impact on rates of harassment or violence, but policies restrictive of their access have increased transgender people’s already heightened risks for harassment and violence. Transgender people are four times as likely as their cisgender counterparts to be victimized by violence.
Nine states and Puerto Rico ban transgender people from using restrooms consistent with their gender identity in government buildings and 12 others have similar laws applying to K-12 public schools. Idaho’s H.B. 752 is the only state law applying to private businesses and – of the three states with criminal penalties attached to their bans – carries the steepest criminal charges in terms of prison sentences for violations.
Today’s filing in Jackson-Edney et al v. Labrador can be viewed here.