On July 1, perhaps the most punitive bathroom ban in the country is set to go into effect in Idaho. The ban threatens people with criminal penalties for being in a public restroom that does not match what the law refers to as their “biological sex” (a term it does not define). A group of transgender Idahoans have now challenged the ban in federal court, in hopes that it will be blocked before it can be enforced. Their lawsuit, filed April 29 by Lambda Legal, the American Civil Liberties Union, and the ACLU of Idaho, argues that the state’s bathroom ban violates the constitutional rights of the plaintiffs, as well as any transgender person in Idaho.
The suit argues that the ban, House Bill 752, is both unconstitutionally vague and discriminatory, under the Fourteenth Amendment, and “presents transgender Idahoans with an impossible choice: they can either use a restroom that does not align with their gender identity and risk severe physical and psychological harms, or continue to use restrooms in public in accordance with their gender identity and risk a criminal record and imprisonment.” Through the stories they tell in the suit, the plaintiffs demonstrate that the ban presents an even broader and more insidious risk. In cases where the ban does not result in arrests and imprisonment, it could still turn transgender people into objects of routine suspicion, normalizing surveillance and questioning by police and the public alike, and granting such stigma and harassment the imprimatur of the law.
There is little doubt that the ban, one of many anti-trans bills taken up by the Idaho state legislature in this year’s session, was meant to criminalize the mere presence of a trans person in any public bathroom in the state, including restrooms in private businesses, with penalties ranging from one to five years in jail or prison. “If you’re trans, this creates a crime for who you are,” said state Senator James Ruchti, who opposed the ban. Those supporting it claimed that transgender people do not exist, that trans women specifically are “men” and “need to be treated as such.”
The Idaho case offers a particularly clear example of the animus behind these laws, as well as how expansive their harm can be. The ban is not confined to the bathroom; it extends to nearly every facet of public life. “H.B. 752’s shadow will endanger my ability to operate effectively in my job,” said Amelia Milette, one of the plaintiffs, in a statement provided by Lambda Legal to The New Republic. She is 50 years old, has lived in Idaho for her whole life, and has had her job for nine years. “In my role, I travel to multiple offices and locations, so I can’t anticipate what restrooms I’ll have access to on a daily basis. If I don’t have access to a restroom I can use safely and without disruption while working with a client, I will have to interrupt my work to find one and I may encounter confusion and discrimination.” Diego Fable, another plaintiff, also risks repercussions in his employment. The 32-year-old, who has lived in Idaho for 10 years, plans to move out of state if the ban goes into effect; he could keep his job, but if he becomes an out-of-state worker, his employer will classify him as a contractor, a designation that will affect his benefits and job protections.
Employment issues, Milette said, “are just the thinnest edge of what is on the horizon for transgender individuals, like me, in Idaho.” The ban also risks isolating an already isolated community. While living in Idaho, Fable has “enjoyed hikes put together for the queer community,” he said in a statement to TNR, as well as “birding every day in Boise’s vibrant parks and green spaces.” In anticipation of the ban going into effect, he said, “I’ve begun scouting bathrooms I pass by, recently, but I fear how others would respond if I were to use the women’s restroom in a public park as a transgender man. It would be safest to stay home—which sounds pretty miserable for me. I would rather be out enjoying the birds as I always have, without all this extra anxiety foisted on me by this law.”
The complaint highlights how quickly the law was foisted on Idaho, as well as the disingenuous rhetoric of the bill’s sponsor, state Representative Cornel Rasor, who claimed that the bathroom ban “extends” what he called “proven biological sex protections,” while also claiming that it protected “privacy, safety, and dignity, especially for women and girls.” At the same time, as the complaint summarized, “several legislators referred to transgender people as presumptively criminal, used harmful and inaccurate stereotypes, and speculated that legislators would commit violence if their family members encountered a transgender person in a sex-designated space.” As state Representative Dale R. Hawkins had said at the time, “If someone followed my daughter into a shower room, my family would have to come visit me somewhere because I wouldn’t be waiting for police.” (Meanwhile, the legal challenge notes, a number of law enforcement organizations in the state, such as the Idaho Chiefs of Police Association and the Idaho Fraternal Order of Police, opposed the bathroom ban, on the grounds that it would put officers in “impossible situations” and would be “difficult to enforce.”)
One thing the debate over the ban made clear was that some Idaho lawmakers have no qualms about making trans people feel afraid. Nor do they appear the least bit embarrassed to put their threats on the record. Openly pledging to engage in vigilantism, as Hawkins did during a hearing in the state legislature, is now apparently just part of the lawmaking process in Idaho. It would be fair to ask why, when such people are willing to take the law into their own hands, they believe a law is needed at all. For transgender people in Idaho, as Kell Olson told TNR, “if they comply with the law, then they are likely to be seen as violating the law—because they are going to look like a man in a woman’s bathroom, or vice versa, for a lot of transgender people.” The way the law has been set up, the only way for a trans person to comply would amount to forcing them to unmake themselves, in public, subject to humiliation and exposed to danger. It is as if the law itself is secondary; what lawmakers really want is the stamp of the purported democratic process to elevate violent rhetoric and threats against a community that already faces an extreme deprivation of rights.
When Republican state Senator Brandon Shippy called transgender people “a myth,” when he stated that “we have to keep reminding ourselves that there is no oppressed community that we’re dealing with here,” it sounded like he was describing the future he intended the law to bring about: one in which trans Idahoans either go back in the closet or leave the state. Those who brought this challenge refuse that unjust choice.