In 2023, Idaho enacted a law that requires that public-school students who use sex-segregated restrooms and changing facilities use only the facilities that correspond to their sex. Plaintiffs—a student who identifies as transgender and a student organization that has members who identify as transgender—challenged the law, but the district court rejected their request for a preliminary injunction.

In a ruling last week (in Roe v. Critchfield), a unanimous panel of the Ninth Circuit affirmed the district court. The ruling is welcome, especially given the composition of the panel, but it’s also narrow. It should not confuse anyone into thinking that the Ninth Circuit’s precedents that require heightened scrutiny of laws like Idaho’s are sound or workable.

1. Let’s start with the panel members. The author of the Ninth Circuit opinion is Judge Morgan Christen. Just six months ago, Christen, an Obama appointee, wrote a badly confused opinion (in Doe v. Horne) that barred Arizona officials from enforcing a state law that bars males at public schools (and at private schools that compete with public schools) from playing on girls’ or women’s sports teams.

A second member of the panel is Judge Kim McLane Wardlaw, a Clinton appointee who might hold the record for being most often summarily reversed by the Supreme Court. It was Wardlaw who wrote the lead opinion (joined by Christen) in the earlier case of Hecox v. Little in which she wrongly asserted that an Idaho law that provides that “[a]thletic teams or sports designated for females, women, or girls shall not be open to students of the male sex” classifies “based on transgender status.” The law in fact clearly classifies on the basis of sex and disregards gender identity. (My post critiquing Wardlaw’s initial August 2023 ruling in Hecox broadly applies to the revised ruling that she issued in June 2024.)

The third member of the panel is Mark Bennett, a Trump appointee whom I generally admire but who somehow cast the decisive vote in this same case in October 2023 (over the dissent of Judge Consuelo Callahan) to enjoin Idaho officials from enforcing the bathroom law during the pendency of this appeal.

In short, there would have been very little reason to expect that this panel would deliver a victory for Idaho.

2. The panel’s lead ruling is that the plaintiff student organization is unlikely to succeed on the merits of its equal-protection challenge. (The individual plaintiff dropped out of the case on appeal.) That ruling hinges on the fact that the plaintiff brought a “facial” challenge to the law (rather than objecting to how it was applied in particular circumstances). To prevail on its facial challenge, the plaintiff would have to show that the law is unconstitutional in all of its applications.

Applying the intermediate scrutiny that the Ninth Circuit’s mistaken precedent requires, the panel determines that the state’s undisputed important governmental interest in protecting student privacy “is most strongly implicated in locker rooms and communal shower rooms that lack curtains or stalls.” It rules that in these contexts the law’s “discriminatory effect on transgender students” is “substantially related” to this privacy interest. Because the law permissibly applies in these contexts, it is facially constitutional under the Equal Protection Clause irrespective whether some of its other applications might be impermissible.

The panel’s ruling thus leaves open that other applications of the Idaho law would be found to be unconstitutional in as-applied challenges. It seems to signal that it would look unfavorably on the law’s application to restrooms. Even as to locker rooms and showers, it leaves open that the law might not be permissibly applied against students who have “undergone gender-realignment surgery.” And more broadly, there will be plenty of room for future plaintiffs to contend that particular locker rooms and shower facilities are designed in a way that minimizes any threat to privacy interests.

In brief, intermediate scrutiny would have the federal courts as the Grand Tribunal of Restroom, Locker Room, and Shower Design.

3. The panel’s second ruling is that the Idaho law does not violate Idaho’s obligations under Title IX (of the Education Amendments of 1972), which broadly forbids sex discrimination in education programs that receive federal funds but which allows (via regulation) “separate toilet, locker room, and shower facilities on the basis of sex” (so long as the facilities of the two sexes are comparable). The panel declines to decide whether “sex” in Title IX includes gender identity. (If it does, sex-segregated facilities would no longer be possible.) Applying Spending Clause rules, it instead holds that the plaintiff failed to show that Title IX gave Idaho officials clear notice that acceptance of federal funding would require them to allow students who identify as transgender to use the facilities “corresponding to their gender identity.”

In a footnote, the panel expresses no opinion on whether Department of Education regulations adopted last August provide clear notice to programs that accept Title IX funds after that date or on how President Trump’s executive orders bear on the matter.