Transgender Idahoans sue to block criminal bathroom law

Six transgender Idaho residents filed a federal lawsuit Thursday in the U.S. District Court for the District of Idaho seeking to block enforcement of a restrictive new state law that makes it a crime to use public restrooms that do not align with a person’s sex assigned at birth.

The complaint, filed by attorneys with the American Civil Liberties Union and Lambda Legal, challenges House Bill 752, which is set to take effect July 1. The law applies broadly to government buildings and places of public accommodation and carries penalties of up to one year in jail for a first offense and up to five years in prison for repeat violations.

“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 at 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.”

Plaintiffs argue the law violates the Constitution’s guarantees of equal protection and due process and is so vaguely written that people cannot reasonably determine what conduct is prohibited. The statute does not clearly define key terms such as “biological sex,” “reasonably available,” or “dire need,” the lawsuit says.

Related: Idaho Senate Republicans send extreme anti-transgender bathroom bill with felony penalties to governor

Related: Idaho Senate takes up bill to jail trans people for using public bathrooms

At the center of the case is what the complaint describes as an “impossible choice” for transgender people: use a restroom that does not align with their gender identity and risk harassment or harm, or use the facility that does and risk arrest, prosecution, and a criminal record.

The six named plaintiffs, who live across Idaho, say they have used restrooms consistent with their gender identity for years without incident. They now face decisions about limiting time spent in public, avoiding food and water to reduce the need to use restrooms, or leaving the state altogether, according to the filing.

“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.”

The lawsuit builds on weeks of escalating legislation in Idaho. As previously reported by The Advocate, lawmakers advanced House Bill 752 as one of the most punitive bathroom proposals in the country, applying to both government buildings and private businesses and carrying felony penalties for repeat offenses. The measure was signed by Gov. Brad Little, a Republican, on Transgender Day of Visibility.

Related: Idaho governor signs law making transgender bathroom use a felony

Related: Idaho Republicans pass bill making it a felony for transgender people to use public bathrooms

In earlier coverage, transgender Idahoans like Nikson Mathews warned lawmakers that the bill would force a daily calculation between safety and arrest. “Do I feel like going to jail today, or do I feel like being attacked?” Mathews said during testimony.

The lawsuit also points to concerns raised by law enforcement groups during the legislative process, who warned the law would be difficult or impossible to enforce because officers would have no clear way to determine a person’s sex without invasive questioning or investigation.

Idaho lawmakers who supported the measure said it was necessary to protect privacy and safety in sex-separated spaces. The complaint counters that existing laws already address misconduct and that there is no evidence that allowing transgender people to use restrooms aligned with their gender identity creates safety risks.

The plaintiffs are seeking a temporary injunction to block enforcement of the law before it takes effect.