Roe v. Critchfield
131 F.4th 975 (2025)
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Rule of Law:
A state law requiring public school students to use multi-occupancy restrooms and changing facilities corresponding to their “biological sex” is not facially unconstitutional under the Equal Protection Clause, Title IX, or the right to informational privacy, particularly for intimate spaces like locker rooms and communal showers where privacy interests are strongly implicated.
Facts:
- Before the summer of 2023, public school districts in Idaho were free to adopt their own policies regarding students’ access to restrooms, locker rooms, and shower rooms.
- Approximately one-quarter of Idaho’s public schools had policies specifically permitting students to use facilities corresponding to their gender identity.
- On March 22, 2023, the Idaho Legislature adopted Senate Bill 1100 (S.B. 1100), which went into effect on July 1, 2023.
- S.B. 1100 requires public school students in Idaho to use only multi-occupancy restrooms and changing facilities (defined to include locker rooms, changing rooms, and shower rooms) designated for their "biological sex."
- The statute extends this restriction to overnight lodging during school-authorized activities and contains exemptions for staff but none for transgender students.
- S.B. 1100 mandates that public schools provide a single-occupancy facility as a reasonable accommodation for any student unwilling or unable to use a multi-occupancy facility designated for their "biological sex," but this does not allow access to opposite-sex facilities when opposite-sex students could be present.
- The law creates a civil cause of action, entitling any student to recover $5,000 from the public school for each encounter with a student of the opposite "biological sex" in a covered facility.
- Rebecca Roe is a twelve-year-old transgender girl attending Idaho public school who began her social transition in the fifth grade and desired to use facilities consistent with her gender identity.
Procedural Posture:
- Rebecca Roe (a transgender student) and Sexuality and Gender Alliance (SAGA) (a student organization) filed a complaint in the United States District Court for the District of Idaho, challenging S.B. 1100.
- Roe and SAGA moved for a preliminary injunction against S.B. 1100.
- The District Court for the District of Idaho initially granted a temporary restraining order (TRO) to maintain the status quo pending a more complete review.
- Defendants (Idaho State Superintendent of Public Instruction, members of the Idaho State Board of Education, the Boise School District, its superintendent, and board members) filed a response brief opposing the preliminary injunction motion and moved to dismiss all of Plaintiffs' claims.
- After a hearing, the district court denied Roe's and SAGA's request for a preliminary injunction, concluding they were unlikely to succeed on the merits, and also denied Defendants' motion to dismiss.
- Roe and SAGA (Plaintiffs-Appellants) timely filed a notice of appeal to the United States Court of Appeals for the Ninth Circuit and filed a motion for an emergency injunction staying enforcement of S.B. 1100 pending appeal.
- A Ninth Circuit motions panel granted the emergency injunction, which remained in effect during the 2023-24 school year.
- After appellate briefing and argument, Rebecca Roe voluntarily dismissed her appeal pursuant to Federal Rule of Appellate Procedure 42(b)(1).
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Issue:
Does a state law mandating that all public school students use multi-occupancy restrooms and changing facilities corresponding to their "biological sex" violate the Equal Protection Clause, Title IX of the Education Amendments Act of 1972, or the Fourteenth Amendment right to informational privacy, thereby warranting a preliminary injunction?
Opinions:
Majority - Christen, Circuit Judge
No, a state law mandating sex-segregated multi-occupancy facilities based on "biological sex" in public schools does not warrant a preliminary injunction, as the plaintiffs are unlikely to succeed on their facial challenges under the Equal Protection Clause, Title IX, or the right to informational privacy. The court applied intermediate scrutiny to SAGA's Equal Protection claim, finding that protecting bodily privacy is an important governmental objective for school-aged children. It concluded that S.B. 1100's mandated sex-segregation in all covered facilities is substantially related to this objective, particularly for locker rooms and communal shower rooms where the privacy interest in avoiding bodily exposure is most strongly implicated. Because this was a facial challenge, SAGA had to demonstrate that no set of circumstances existed under which the Act would be valid, a burden not met given the privacy concerns in certain facilities. Regarding the Title IX claim, the court acknowledged that discrimination based on transgender status is a form of sex-based discrimination under Title IX but relied on the Spending Clause's "clear notice" rule. The court determined that SAGA failed to establish that the State had clear notice, when accepting federal funding, that Title IX prohibited segregated access to facilities like restrooms, locker rooms, and showers on the basis of transgender status, especially given existing regulations authorizing sex-segregated facilities. Finally, concerning the right to informational privacy, the court assumed transgender status is protected information but found SAGA unlikely to succeed because S.B. 1100 does not require or permit disclosure of a student's transgender status. The provision for single-occupancy facilities is available to any student "for any reason," meaning observing a student using such a facility would not necessarily disclose their transgender status.
Analysis:
This case illustrates the significant hurdle of a facial challenge, especially when a statute addresses broad societal concerns like privacy in intimate settings. The Ninth Circuit's decision, while reaffirming the application of intermediate scrutiny to classifications based on transgender status, underscores that a law can withstand such scrutiny if its means are substantially related to an important government interest in even some of its applications. Furthermore, the court's emphasis on the "clear notice" rule for Spending Clause legislation like Title IX suggests that states may be shielded from liability for actions explicitly or ambiguously permitted by older statutory or regulatory language, even if modern interpretations of anti-discrimination laws might suggest otherwise. This creates a challenging landscape for plaintiffs seeking immediate injunctive relief against state laws impacting transgender individuals' access to facilities.
