Photo courtesy of Liberty Counsel

BOISE, ID – Last week, the Ninth Circuit Court of Appeals unanimously upheld Idaho’s 2023 law that protects the privacy and safety of the state’s K-12 students by requiring single-sex facilities in public schools for males and females. In Roe v. Critchfield, a three-judge panel rejected a request for a preliminary injunction from the law’s challengers holding that protecting bodily privacy from exposure to the opposite sex was an “important” state interest. According to Idaho Attorney General Raul Labrador, the decision revokes a previous block on the law allowing the state to enforce its protections for Idaho students while litigation continues.  

Senate Bill 1100, which passed overwhelmingly in both Idaho’s legislative chambers, requires public schools to provide separate bathrooms, locker rooms, showers, and dressing areas for boys and girls where students must use the facility corresponding to their assigned sex at birth.

The law reads, “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.”

However, shortly after the law took effect in July 2023, activists sued Idaho State Superintendent of Public Instruction Debbie Critchfield and the state board of education demanding that public schools force boys and girls to share private spaces with the opposite sex. Specifically, the lawsuit was initiated by a then-seventh grade gender-confused male and his parents, as well as a Boise High School student organization called “Sexuality and Gender Alliance.” The challengers claimed the law violates the U.S. Constitution’s Equal Protection Clause in the 14th Amendment and federal Title IX law.

But the Ninth’s Circuit opinion, authored by Judge Morgan Christen, affirmed a lower court’s decision that the challengers would not likely succeed on those merits. Judge Christen noted that at this stage there is “no argument” presented that prevails over the state’s interest in “protecting students from having to expose their own unclothed bodies to students of the opposite sex.”  

Judge Christen wrote, “Applying intermediate scrutiny, the panel held that the State identified an important governmental objective — protecting bodily privacy — and that the State chose permissible means to achieve that objective.”

At least 16 states require K-12 public schools to designate separate-sex bathrooms and private spaces, such as Alabama, Arkansas, Florida, Idaho, Iowa, Kentucky, Louisiana, Mississippi, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and Wyoming.

Similar laws and policies have been previously upheld by other courts. In September 2024, a federal judge dismissed a challenge to Tennessee's law reserving school bathroom use according to biological sex. In December 2022, the full Eleventh Circuit Court of Appeals ruled 7-4 upholding a Florida school district’s policy of designating restrooms by “biological sex” barring gender-confused students from using any other facility than the one corresponding with their birth sex.

Liberty Counsel Founder and Chairman Mat Staver said, “This is a commonsense decision by the appeals court. The Idaho law protects children’s safety and privacy. It can be humiliating, demeaning and unsafe for children to be exposed to the opposite sex in bathrooms, locker rooms, and changing areas. Biology is fixed at birth where boys and girls are different. Children with gender confusion need counseling, not access to the private spaces of the opposite gender.”

For more information about state laws protecting against gender ideology, visit Liberty Counsel’s website here.