In March, the Idaho legislature enacted a law (H.B. 752) that bars a person from using a public restroom that “is designated for use by the opposite biological sex of such person.” In an order yesterday (in Jackson-Edney v. Labrador), federal district judge Amanda Brailsford issued a preliminary injunction that broadly bars Idaho officials from enforcing the law “against all transgender people.” Under Brailsford’s potty logic, any law that designates restrooms—or showers or locker rooms—by sex (and that imposes a penalty for violation) is unconstitutionally vague. And in practice no such law could be enforced against anyone, transgender or not.
Brailsford devotes most of her merits discussion to two of the exceptions that the law sets forth: one when a “single-user facility [designated for the opposite sex] is the only facility reasonably available at the time of the person’s use of the facility,” and the other when a “person is in dire need of urinating or defecating and such facility is the only facility reasonably available at the time of the person’s use.” (See slip op. at 11-15.) She somehow finds that those exceptions are unconstitutionally vague because they “leave[] critical enforcement decisions to the unguided discretion of individual officers.” Why this alleged vagueness in the exceptions is a reason to enjoin the law generally (rather than to invalidate the two exceptions or construe them expansively) is puzzling.
Brailsford then inserts a single paragraph (top of p. 16) in which she asserts that the law’s general bar “invites arbitrary and discriminatory enforcement” because it depends on “a law enforcement officer’s ability to determine an individual’s ‘biological sex.’” On that ground, she rules that plaintiffs have sufficiently established that the law is unconstitutionally vague.
I don’t see how any difficulties in enforcement create a constitutional problem, and I think that Brailsford’s ruling rests on an unstated—and in my view unsound—premise that individuals who identify as transgender have a constitutional right to have their gender identity accommodated.
I don’t mean to deny the difficulty that the law poses for the individual plaintiffs. They allege that they are routinely perceived to be of the sex that accords with their asserted gender identity. Thus, if they continue to present themselves consistent with their asserted gender identity, they risk being mistakenly thought to be in violation of the law when they use public restrooms. A woman, that is, who identifies as male and who is perceived to be male would fear being arrested for using a women’s restroom. (And vice versa for a man who identifies as female.)
My preferred way to finesse this problem is to have lots of single-user bathrooms that can be used by people of both sexes. (The Idaho law does not require that single-user facilities be designated for one sex.) Plaintiffs allege that this isn’t the situation where they live and work.
But this is a policy matter, not a legal one, and any effort to give legal relief creates larger problems.
The individual plaintiffs haven’t just sued on their own behalf. In order to get the remedy they want, they have brought a class action on behalf of “all transgender people who seek to use a restroom consistent with their gender identity in a government-owned building or a place of public accommodation in Idaho.” Brailsford certifies that class in her order and extends relief to everyone in that class, irrespective whether members of the class are perceived to be of the sex that accords with their asserted gender identity. So Brailsford’s order means that men who look like men but who identify as female are free to use women’s restrooms.
What’s more, it’s impossible to confine Brailsford’s relief to transgender individuals. Whatever difficulties a police officer might face in assessing an individual’s sex are surely matched or exceeded by the difficulties in determining a person’s gender identity. How is the officer supposed to know whether the man who looks like a man and who enters the women’s restroom identifies as male or female? What is to prevent such a man from asserting that he identifies as female?
Brailsford’s logic (if it may be called that) also can’t be confined to restrooms. If Brailsford’s reasoning were correct, laws that designate locker rooms and shower facilities by sex would also be unconstitutionally vague. Men who look like men and who identify as female would be entitled to judicial relief enabling them to use women’s locker rooms and shower facilities. And there would be no effective way of barring men who look like men and who identify as men.