A win for privacy and safety

In what could signify a huge shift in how the federal courts analyze legal issues involving policies and legislation on gender ideology, the U.S. Court of Appeals for the Ninth Circuit reversed its position and upheld a commonsense Idaho law that requires public school students to use restrooms and locker rooms that correspond with their biological sex. Despite the fact that the Ninth Circuit had put the Idaho law on hold while it reviewed the law, the court issued a unanimous decision in Roe v. Critchfield, setting an important precedent for upholding state privacy laws against constitutional challenges.

In 2023, the Idaho legislature responded to privacy concerns and required that public school students use intimate facilities like bathrooms, locker rooms, and showers according to sex, not gender identity. Under the law, students are also assigned roommates of the same sex for overnight school-authorized activities. Recognizing that some students might be uncomfortable with multi-occupancy facilities, the legislature also required schools to provide single-use bathrooms and showers for any student who for any reason did not want to use the multi-occupancy restroom or changing facility designated for the person’s sex.

In the case, a male Idaho public school student who identifies as female and an activist organization filed suit to challenge Idaho’s commonsense law. In somewhat of a surprise, the Ninth Circuit reversed its prior position, and unanimously ruled against the plaintiffs on all of their claims.

The Ninth Circuit first found that the plaintiffs’ facial challenge to the Idaho privacy law was unlikely to violate the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause essentially requires that similarly situated persons be treated alike. Because the Idaho law designated bathroom use based on sex, Idaho had to show that the law furthered important government interests. The federal courts found that forcing “students to share restrooms and changing facilities with members of the opposite biological sex” undermines the state’s privacy and safety objectives and “generates potential embarrassment, shame, and psychological injury.” Indeed, the district court had found these interests to be especially important for school-aged children who are still developing mentally, physically, emotionally, and socially.

The Ninth Circuit also concluded that—at least as to locker rooms and communal showers—the state’s interests in protecting students from exposing themselves to students of the opposite sex was furthered by its privacy law. Indeed, the Ninth Circuit found that Idaho did not even need to put on evidence showing that students faced shame or embarrassment from undressing in the presence of members of the opposite sex: That phenomenon was “easily corroborated by common experience.”

The Ninth Circuit also unanimously rejected the plaintiffs’ claim that Title IX required schools to admit boys to girl’s rooms. Disagreeing with the Biden administration’s repeated arguments, the Ninth Circuit held that a Supreme Court case called Bostock did not require such a result. Bostock counterintuitively held that a statute prohibiting hiring and firing based on sex also prohibited hiring and firing based on gender identity. And the Biden administration argued that this means that schools violate Title IX unless they permit intimate spaces to be used consistent with gender identity. The Ninth Circuit disagreed—even though a prior Ninth Circuit panel had held that Bostock applies to Title IX. But in Critchfield, the panel held that Bostock does not apply to bathrooms and locker rooms.

The Critchfield case also explained why the Bostock reasoning did not apply in this context. Unlike Title IX, the statute at issue in Bostock was not enacted pursuant to Congress’s Spending Clause powers. Under the spending power, Congress may induce states to do certain things. But because spending clause legislation is essentially a contract, the Supreme Court has held that states must clearly be put on notice of the terms of the agreement.

With respect to Title IX, the federal government provides educational funding in exchange for the states agreeing to certain school-related conditions. The unanimous Ninth Circuit panel concluded that the states would never have known that they were agreeing to allow men into women’s private spaces. As a result, Title IX did not prevent the states from protecting privacy in schools. Indeed, the Ninth Circuit found that “in 1972, the separation of these facilities on the basis of sex was so assumed that it did not merit special mention in the text of the statute.”

The Ninth Circuit got it exactly right. Neither the Equal Protection Clause nor Title IX require public schools to allow men into women’s intimate spaces. Rather, both of those provisions are meant to ensure that girls and women are equally protected under the law.