Before July 2023, Idaho public school districts set their own policies for student access to restrooms, locker rooms, and showers. Approximately 25% of districts allowed students to use facilities corresponding to their gender identity. In March 2023, the Idaho Legislature enacted Senate Bill 1100 (S.B. 1100), which was set to take effect on July 1, 2023. The law requires public school students to use multi-occupancy restrooms and changing facilities based on their “biological sex.” S.B. 1100 includes exemptions for staff, medical personnel, and maintenance workers, but not for transgender students. The statute also creates a civil cause of action allowing students to recover $5,000 in damages from a school if they encounter a student of the opposite biological sex in one of the covered multi-occupancy facilities.
The law requires schools to provide a single-occupancy facility to any student who is unwilling or unable to use a multi-occupancy facility designated for their sex. Students must submit a written request to obtain this accommodation. The statute does not limit the use of single-occupancy facilities to transgender students.
Rebecca Roe, a transgender girl entering seventh grade in the Boise School District, began her social transition in fifth grade. She sought to use restrooms and changing facilities consistent with her gender identity and alleged that S.B. 1100 would disrupt her transition, harm her mental and physical health, and risk disclosing her transgender status to peers. The Sexual and Gender Alliance (SAGA) is a student organization at Boise High School. A transgender male student and SAGA member, referred to as A.J., alleged that he and others would suffer harm from being excluded from facilities aligned with their gender identity.
On July 1, 2023, Roe and SAGA filed a lawsuit in federal district court to prevent enforcement of S.B. 1100. They named as defendants the Idaho State Superintendent of Public Instruction, members of the Idaho State Board of Education, the Boise School District, its board members, and its superintendent. Roe and SAGA argued that S.B. 1100 violated the Equal Protection Clause, Title IX, and the constitutional right to informational privacy. They asked the district court for a preliminary injunction to stop enforcement S.B. 1100 before the start of the school year.
The district court granted a temporary restraining order to maintain the preexisting status quo while it considered the request for preliminary injunction. Defendants opposed the injunction and moved to dismiss the case. After a hearing, the district court denied the preliminary injunction. It found that Roe and SAGA had not shown a likelihood of success on the merits, had not demonstrated irreparable harm, and had not established that the balance of equities favored a preliminary injunction. The district court also denied the Defendants’ motion to dismiss, allowing the case to proceed.
Roe and SAGA appealed the district court’s denial of the preliminary injunction to the Ninth Circuit Court of Appeals. The Ninth Circuit granted an emergency injunction which it considered the appeal. The emergency injunction remained in effect throughout the 2023–2024 school year. The Ninth Circuit later heard oral argument and affirmed the district court’s denial of the preliminary injunction.
The Ninth Circuit first considered the Equal Protection Clause claim and accessed S.B. 1100 using intermediate scrutiny. Intermediate scrutiny is the standard that the Ninth Circuit uses when a government entity classifies individuals based on sex or transgender status. Under intermediate scrutiny, the government must show that its classification serves an important governmental interest and that the means it employs are substantially related to achieving that interest. The Ninth Circuit concluded that protecting student bodily privacy in settings like locker rooms is an important government interest, and that restricting access based on “biological sex” is substantially related to that interest. It therefore held that S.B. 1100 does not facially violate the Equal Protection Clause.
The Ninth Circuit also rejected Roe and SAGA’s argument that the state could have protected privacy through less restrictive means, such as installing privacy dividers. It emphasized that intermediate scrutiny does not require the state to adopt the least restrictive or most narrowly tailored means of achieving its interest. There only needs to be a substantial relationship between the law and the state’s asserted goal.
Next, the Ninth Circuit addressed the Title IX claim. Although Ninth Circuit precedent recognizes that discrimination based on transgender status constitutes sex discrimination under Title IX, the Ninth Circuit emphasized that Title IX is Spending Clause legislation. To impose liability on states that receive federal funds, a federal statute must provide clear notice of what conduct it prohibits. This requirement ensures that states can knowingly and voluntarily accept the conditions tied to the federal funding. The Ninth Circuit concluded that neither Title IX nor its implementing regulations clearly prohibited the type of sex-segregated facility policy adopted in S.B. 1100. Therefore, the Ninth Circuit held that Idaho lacked the required notice and Roe and SAGA were unlikely to succeed on their Title IX claim.
Finally, the Ninth Circuit considered the informational privacy claim. The Ninth Circuit assumed, without deciding, that transgender status may qualify as protected personal information. However, it found no evidence that S.B. 1100 requires schools to disclose a student’s transgender status. The law allows any student to request a single-occupancy facility for any reason. Therefore, the Ninth Circuit found that using such a facility would not necessarily reveal a student’s transgender status, and Roe and SAGA were unlikely to succeed on their informational privacy claim.
The Ninth Circuit affirmed the district court’s order denying a preliminary injunction and held that plaintiffs had not shown a likelihood of success on the merits of any of their claims. It did not reach the remaining preliminary injunction factors. The underlying litigation may continue in the district court, but the appellate ruling ends the preliminary injunction phase. The emergency injunction expired upon entry of the decision.
Roe v. Critchfield (9th Cir. 2025) 131 F.4th 975.