9th Circuit Upholds Bathroom Ban, Says Trans Students Violate Cis People's Privacy

The ruling, the first of its kind, asserts that the rights of cisgender people to not have a transgender person in the same bathroom are more important than the equal protection of trans students.

Judge Morgen Christen, Wikimeida Commons

In a stunning decision, the 9th Circuit Court of Appeals has ruled that Idaho can ban transgender students from using bathrooms that align with their gender identity. The ruling prioritizes cisgender students’ “privacy concerns” over the harm faced by transgender students, effectively stripping them of Title IX protections in school facilities. It also contradicts recent precedent from both the 9th Circuit and other federal courts that have affirmed equal protection rights for transgender people. Even under heightened scrutiny, the court determined that transgender students could legally be excluded from bathrooms corresponding to their gender identity due to unspecified harm they may be hypothesized to cause cisgender students. In multiple instances, the decision also treats transgender students as their assigned sex at birth, setting a dangerous legal precedent with implications far beyond Idaho.

The court ruled that a “privacy interest” in excluding transgender students from bathrooms outweighs their equal protection rights. It stated that “not exposing students to the unclothed bodies of students of the opposite sex, and protecting students from having to expose their own unclothed bodies to students of the opposite sex” justifies barring transgender students from locker rooms, changing rooms, and bathrooms. It also stated that a person’s sex is “typically identified at birth” and treats “biological sex” as “sex assigned at birth” without justification. In doing so, the ruling explicitly categorizes transgender youth as the “opposite sex” in legal terms, setting a precedent that could further erode their protections under federal law.

Though the ruling acknowledges that the transgender plaintiff, Rebecca Roe, “alleged that excluding her from those facilities would jeopardize her social transition, imperil her mental and physical health, and “out” her to her peers as transgender when she entered a new school in seventh grade,” the ruling does not find that harm compelling. That is because the ruling determines that despite the harm done to Roe, the state has a “compelling interest” to protect cisgender students from Roe in intimate spaces.

The ruling acknowledges that Idaho’s bathroom ban discriminates on the basis of sex and transgender status, triggering heightened scrutiny as required by 9th Circuit precedent. Yet, despite this recognition, the court still ruled against the transgender plaintiffs. It determined that the state’s interest in “preventing schools from requiring students to share restrooms and changing facilities with members of the opposite biological sex” advances “privacy and safety objectives” and prevents “potential embarrassment, shame, and psychological injury” to cisgender students. This, the court concluded, was sufficient justification to override the documented harms experienced by transgender students. The ruling further denied equal protection claims, asserting that “excluding all students, including transgender students who have not undergone gender-realignment surgery, from locker rooms and shower rooms designated for students of the opposite ‘biological sex’ is substantially related to the same privacy interest.”

To justify this decision, the panel had to address the fact that the state failed to produce any evidence of harm caused by transgender students using bathrooms or changing rooms. Rather than confront this gap, the court sidestepped the issue by creating what effectively amounts to a transgender injury exception. It ruled that “common experience” is enough to assume harm to cisgender students, stating: “SAGA overlooks that this is an unusual situation in which the State’s privacy justification is easily corroborated by common experience… That some students in a state of partial undress may experience ‘embarrassment, shame, and psychological injury’ in the presence of students of a different sex is neither novel nor implausible.” In doing so, the court required no actual evidence of harm to justify the ban under heightened scrutiny.

The court sidestepped strong precedent affirming transgender people’s equal protection rights, including a case which states that “the mere presence” of a transgender person does not violate cisgender students’ privacy in shared spaces. To do so, it reframed the issue, claiming that the “mere presence” of transgender students in bathrooms was not at issue in the case. Instead, the ruling asserts that transgender people are not being discriminated against for their presence, but rather are simply being told they must be treated as their assigned sex at birth—a distinction that functionally erases transgender identity in legal protections.

The ruling also denies transgender people protection under Title IX, explicitly allowing Idaho to define transgender students by their birth sex within the law’s framework. This could have far-reaching consequences, as courts have ruled that Title IX protects transgender students from discrimination. If this interpretation gains traction, it could instead be used to mandate discrimination by requiring schools to treat transgender students as their assigned sex at birth. The ruling states: “But from the time of the enactment of Title IX and its implementing regulations, the scheme has authorized schools to maintain sex-segregated facilities, and contemporary dictionary definitions commonly defined ‘sex’ in terms that refer to students’ sex assigned at birth.”

Lastly, the court rejected transgender students’ claims under the right to informational privacy. While it acknowledged that such a right might exist, it ruled that Idaho’s law does not compel transgender students to disclose their gender identity because “anyone” may use a single-use bathroom. This reasoning ignores the reality that transgender students who are disciplined for using a restroom that matches their gender identity will, by default, be forcibly outed to their peers.

This ruling sets a devastating precedent for transgender rights. Issued by a majority Democratic-appointed panel in the 9th Circuit, it marks the first significant decision in which Democratic-appointed judges have ruled against transgender protections. By prioritizing cisgender discomfort over the tangible harm faced by transgender people, the court has effectively sanctioned a legal framework in which transgender individuals can be forced to live as their assigned sex at birth. Even more troubling, this decision comes at a critical moment—just ahead of a looming Supreme Court case that will determine whether transgender people have equal protection under the law at all. That such a ruling emerged from the historically progressive 9th Circuit signals that courts may be increasingly willing to uphold laws restricting transgender people’s rights, potentially paving the way for a wave of anti-trans legislation to be deemed constitutional in the months ahead.