[00:00:00] Speaker 04:
Good morning, everyone.

[00:00:02] Speaker 04:
We are here for argument on Appellants Emergency Motion under Circuit Rule 27-3 for an injunction pending an appeal in the case of Sexuality and Gender Alliance versus Debbie Critchfield.

[00:00:23] Speaker 04:
Council, is Mr. Olson?

[00:00:27] Speaker 01:
Yes, Judge.

[00:00:29] Speaker 04:
You may proceed.

[00:00:32] Speaker 01:
Thank you, Your Honor.

[00:00:33] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:36] Speaker 01:
Kel Olson, on behalf of Appellant Saga, I would like to reserve five minutes for rebuttal.

[00:00:42] Speaker 04:
All right.

[00:00:42] Speaker 01:
Please watch your clock.

[00:00:44] Speaker 01:
Will do.

[00:00:45] Speaker 01:
Thank you, Your Honor.

[00:00:47] Speaker 01:
This panel has already held that SB 1100 discriminates.

[00:00:51] Speaker 01:
We appreciate the opportunity to address Appellant's narrow request for injunctive relief during the pendency of appeal, which challenges Idaho's SB 1100

[00:01:01] Speaker 01:
specifically as applied to restrooms at Boise High School.

[00:01:05] Speaker 01:
This panel has already held that SB1100 discriminates based on sex and transgender status because it excludes transgender students from restrooms consistent with their gender identity.

[00:01:16] Speaker 01:
So the crux of the issue today is the means and fit between SB1100 and an interest in bodily privacy in restrooms.

[00:01:25] Speaker 01:
The question is not whether Idaho can maintain separate restrooms,

[00:01:30] Speaker 01:
which existed both before and after SB 1100, but how SB 1100 categorically assigns transgender students to those spaces.

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That is the discriminatory means this court has already identified and which must have the required fit with the interest.

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The result of course must turn on whether there is a meaningful risk of bodily exposure in the particular facility at issue.

[00:01:56] Speaker 01:
This panel already reflected in its previous opinion that context

[00:02:00] Speaker 01:
matters.

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It didn't have to then apply to a specific context previously, but that is the task before the court today.

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So we know context matters from the case law that describes the privacy interest at issue.

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We also know that if we depart from that context specific test, as we see in SB 1100, we end up with arbitrary and absurd results.

[00:02:25] Speaker 01:
Looking at the cases this panel cited to articulate the privacy interest at issue,

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and that defendants rely upon as well, we see that changing the context changes the outcome.

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So for example, in Sepulveda, we have a parole officer inside a bathroom stall with a person of a different sex while they're using it.

[00:02:43] Speaker 01:
And so that was a violation of bodily privacy.

[00:02:46] Speaker 01:
But the court compared a different context.

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If the person is outside a stall monitoring a shower from a distance where their view is partially obscured, that is not a violation.

[00:02:58] Speaker 01:
If you look at a strip search of intimate anatomy, which is what we had in bird, that was a violation.

[00:03:05] Speaker 01:
But again, the court compared that to a routine pat down body search, which was not a violation.

[00:03:11] Speaker 01:
And of course, the circumstances are all different, but the basic lesson holds, which is that you can't jump over the facts to do the analysis you have to do now.

[00:03:21] Speaker 02:
When you talk about you can't jump over the facts, so is there any record in the district court as to exactly how things are going right now?

[00:03:38] Speaker 02:
That is where the

[00:03:44] Speaker 02:
unisex bathrooms are, how they're being used, what the difficulties are or aren't from their use.

[00:03:54] Speaker 02:
School's been going on, what, two months now or so?

[00:03:59] Speaker 02:
Or six weeks?

[00:04:01] Speaker 02:
But whatever the number is, is there anything that we have in the record as to how things are going on the ground right now?

[00:04:09] Speaker 01:
We do have information in the record as to the layout of the buildings.

[00:04:13] Speaker 01:
how things are set up.

[00:04:14] Speaker 01:
Of course, each day is a day people need to use the restroom.

[00:04:18] Speaker 01:
So we don't know for each day what challenges people have today versus tomorrow as they're sitting in class now.

[00:04:25] Speaker 01:
We do have a map of the school buildings.

[00:04:28] Speaker 01:
That's at docket 90-3.

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We also have pictures of the stalls in the restrooms and what they look like.

[00:04:36] Speaker 01:
That's at 90-4 in the record.

[00:04:39] Speaker 01:
And so the court can refer to both of those.

[00:04:40] Speaker 01:
And what we see is we have three buildings

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one of which has no single user restroom available that students use for classes, another that has one stall available, and then a third building that has two stalls available, an entire floor, top floor of classrooms with no options, no single user options, and then one in a nurse's office.

[00:05:03] Speaker 01:
The two are one in a nurse's office and one in the corner of the basement of that building through an office.

[00:05:09] Speaker 01:
So that's the layout that

[00:05:11] Speaker 01:
students are having to deal with at this moment as they're in school.

[00:05:14] Speaker 01:
So for example, if you have a student who is in the classroom, in the building with no restrooms and SB 1100 leaves them with no option that matches their gender identity where they would be safe and where they wouldn't look like they're violating SB 1100 to use it, they would have to go to the next building over and if that one stall is occupied, they might have to go two buildings away.

[00:05:37] Speaker 03:
Right, could I ask a follow-up question or maybe to

[00:05:40] Speaker 03:
Council, since you're on this, the floor plan, call it, exhibit.

[00:05:47] Speaker 03:
On my end, at least, it's pretty fuzzy.

[00:05:50] Speaker 03:
And I wanted to ask a question.

[00:05:52] Speaker 03:
I read this putting them together with the declarations that on the main building on the basement at the end of the hallway, right near the art room, there's one of the bathrooms.

[00:06:02] Speaker 03:
I think that's the one you're mentioning.

[00:06:04] Speaker 03:
And then on the main building on the first floor, there's near the nurse's office.

[00:06:09] Speaker 03:
But none at all on the second or third floor of that building.

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And I think the second and third floor of that building pretty clearly has classrooms.

[00:06:20] Speaker 03:
In fact, that's not a question.

[00:06:21] Speaker 03:
I can tell that.

[00:06:22] Speaker 03:
But in the church building, the Frank Church building, the second floor, I don't see any alternative bathrooms in that building, but I can't tell where those classrooms in that building.

[00:06:32] Speaker 01:
All right, my understanding is there are classrooms in that building.

[00:06:35] Speaker 01:
I don't know if that's clear in the record, but that is my understanding is that students do use that building for classes.

[00:06:40] Speaker 03:
Okay, so maybe we can hear from opposing counsel on that when we get that far.

[00:06:44] Speaker 03:
My related question is, from the declarations, it's a little unclear to me whether a student has to have a key card that's programmed to have access to get into the bathroom or the restroom by the gym and or the art room.

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Do you know that?

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Is that in our record?

[00:07:00] Speaker 01:
I do not know that about the art room because that is one that students were less familiar with before this came about because that's through an office area as well.

[00:07:08] Speaker 01:
But I do know that at least previously there was key card access required in the gymnasium stall.

[00:07:14] Speaker 04:
Is there key card access required for the buildings themselves or the classrooms or anything else?

[00:07:22] Speaker 01:
I'm not aware of that, Your Honor.

[00:07:24] Speaker 01:
I'm not aware if they need access for the general building.

[00:07:28] Speaker 04:
So are the students, I mean, is the key card something that's exceptional just for the restrooms or is it something that all the students have?

[00:07:40] Speaker 01:
I don't know that answer, Your Honor, as to whether they have an existing card that's used for other purposes and it can be specifically programmed for that bathroom or whether they are the only ones carrying that card.

[00:07:49] Speaker 04:
So what is the very, can you state very specifically the harm that

[00:07:58] Speaker 04:
your clients are facing by this statute.

[00:08:04] Speaker 01:
Yes, Your Honor.

[00:08:06] Speaker 01:
So there's, of course, per se irreparable harm for a violation of constitutional rights.

[00:08:13] Speaker 01:
But in addition to that, experts on both sides below agreed that restroom access is necessary for learning and that impeding access causes lasting harm to students.

[00:08:24] Speaker 01:
That's Dr. Spudge and Nanjia both

[00:08:27] Speaker 01:
acknowledge that truth and that this type of harm, because it affects a daily need, is ongoing, debilitating, and cannot be remedied, as I mentioned, by separate facilities.

[00:08:37] Speaker 01:
You have, first of all, the logistical problems that I mentioned before as far as the limited availability.

[00:08:45] Speaker 01:
First of all, as a legal matter, to be clear, having those separate facilities cannot justify the law.

[00:08:52] Speaker 01:
Idaho has to first justify how they've sorted students

[00:08:57] Speaker 01:
If you have to avoid applying the rule altogether by sending students elsewhere, that should set off alarm bells under any level of scrutiny, especially heightened scrutiny.

[00:09:06] Speaker 01:
But as a matter of harm, forcing students to use those separate facilities does not mitigate.

[00:09:12] Speaker 01:
And the evidence in the record is that it actually exacerbates harm because you're forcing students to use separate facilities.

[00:09:18] Speaker 01:
Very different than the status quo, which of course allowed the option of separate facilities.

[00:09:24] Speaker 01:
and which is part of the relief we would continue to ask for.

[00:09:29] Speaker 01:
But telling people they must use separate facilities because of who they are and to have the state tell them that is a very different harm.

[00:09:36] Speaker 01:
And it reinforces the stigma that you must go elsewhere.

[00:09:41] Speaker 01:
And of course, these students are spending most of their waking hours every day of the week on this campus.

[00:09:47] Speaker 01:
To imagine they're not going to have some urgent need at some point over the years they spend there and have to run to the nearest facility

[00:09:54] Speaker 01:
and to have the school say, now you have to run into the facility that doesn't align with your gender.

[00:10:00] Speaker 01:
It's going to look like you're violating SB 1100 by doing that, which shows the absurdity of how this is set up.

[00:10:06] Speaker 01:
And when you do that,

[00:10:09] Speaker 01:
The only way a school is going to be able to defend against that $5,000 penalty and attorney's fees is to essentially out the student.

[00:10:16] Speaker 01:
I don't know how else you get out of that situation.

[00:10:19] Speaker 02:
Council, you've said at page two of your motion for injunction pending appeal that the injunct, because you're just talking about outing students,

[00:10:31] Speaker 02:
And your injunction says, we narrowly sought a preliminary injunction limited only to restrooms and only to saga members at Boise High.

[00:10:43] Speaker 02:
That is the same limited injunction plaintiff now seeks from this court pending appeal.

[00:10:49] Speaker 02:
If we were ever to get there and consider granting this, how would that work?

[00:10:54] Speaker 02:
You're asking for an injunction limited to restrooms and only to SAGA members.

[00:11:01] Speaker 02:
What would an injunction say that would give the school fair notice of what conduct was prohibited given what you're asking for?

[00:11:12] Speaker 01:
In this record, we have a clear record of how the status quo worked.

[00:11:17] Speaker 01:
So if we look at the record at pages or addendum at pages 264,

[00:11:23] Speaker 01:
which is the school but Idaho School Board Association model policy and then page 303 where Boise High School or Boise High School District describes its approach says that a student has to go through an intake process

[00:11:38] Speaker 01:
completed gender support plan.

[00:11:40] Speaker 02:
So maybe I'm not asking a good enough question.

[00:11:43] Speaker 02:
You said limited to restrooms.

[00:11:46] Speaker 02:
I don't think that would have much problem and own limited only to saga members.

[00:11:53] Speaker 02:
That's what you have said your injunction would be.

[00:11:56] Speaker 02:
So how would the school know who was covered by the injunction?

[00:12:02] Speaker 02:
How would the school know who saga members were?

[00:12:05] Speaker 01:
Thank you, your honor.

[00:12:06] Speaker 01:
So because Boise

[00:12:08] Speaker 01:
high school would have an intake process they referred to on page 303.

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And we assume they would follow that same process as they did before SB 1100.

[00:12:17] Speaker 01:
A student would have to come to the school, ask for this permission, show that they say, I am a cellular member as part of that process.

[00:12:26] Speaker 01:
And then they have to make these additional showings.

[00:12:28] Speaker 01:
They have to meet with the school, have their parents sign off, and show that they consistently and persistently have this gender identity for a period

[00:12:37] Speaker 01:
over time and that they're only seeking access according to that gender identity.

[00:12:41] Speaker 02:
So there would be some people who would be identifying themselves to the school and the number of personnel at the school as a SAGA member?

[00:12:51] Speaker 01:
Yes, Your Honor, and we think it's consistent with the status quo that they have had to go to the school, identify themselves and ask for permission.

[00:12:59] Speaker 02:
And I think your readings are clear that to be a SAGA member, you don't have to be transgender or LBGTQ.

[00:13:12] Speaker 02:
Anybody can be a SAGA member.

[00:13:15] Speaker 01:
Correct, Your Honor.

[00:13:16] Speaker 01:
And to qualify under the status quo, they have to meet additional requirements.

[00:13:21] Speaker 01:
They have to be transgender student to qualify under the status quo.

[00:13:24] Speaker 01:
So it would only in practical effect be granting relief

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to transgender members of SAGA that meet the school's intake process and criteria for the gender support plan.

[00:13:35] Speaker 02:
I didn't see that in your motion in terms of the relief you were seeking, but you've clarified that.

[00:13:42] Speaker 01:
Absolutely.

[00:13:43] Speaker 01:
Yes, it would apply to transgender members of SAGA who qualify under the status quo plan.

[00:13:48] Speaker 03:
Council, I think you make a strong argument that

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or maybe I'll just take it as an accepted for a purpose of a hypothetical that a student who is transgender would suffer harm if forced to use a bathroom that did not align with their gender identity.

[00:14:03] Speaker 03:
So if I accept that, then of course SB 1100 doesn't require that.

[00:14:09] Speaker 03:
It requires either that or that they use an alternative bathroom.

[00:14:13] Speaker 03:
So for this hypothetical, what I'd like to engage in is what is our record show about how available those bathrooms

[00:14:20] Speaker 03:
There's one possibility that the bathrooms are available, at least on the floor plan, but not on a day-to-day basis because they're located in areas that are too remote.

[00:14:29] Speaker 03:
Or there's another possibility to follow up, and I think I'm one of Judge Ward last questions about requiring a key card.

[00:14:34] Speaker 03:
What's it really take to use these?

[00:14:35] Speaker 03:
Are the students going to be late?

[00:14:38] Speaker 03:
And the principal's declaration indicates that cisgender students can use these bathrooms as well.

[00:14:45] Speaker 03:
So I'm trying to figure out everything from how accessible are they?

[00:14:48] Speaker 03:
What do we know about that in the record?

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and also whether or not a student would be outed by using that bathroom.

[00:14:56] Speaker 03:
I would take those harms very seriously, but I'm not sure I have the record that tells me the answers either of those questions.

[00:15:04] Speaker 03:
I've got the floor plans, I've got the two declarations of the students, I've certainly read those, I'm sure my colleagues have, and the declaration of the principal.

[00:15:13] Speaker 03:
But the situation we're in is that all the declarations were, of course,

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executed at a time when we're anticipating the school year.

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And SB 1100 had never been in operation.

[00:15:26] Speaker 03:
So as Judge Bennett indicated, now it has been for a couple of months.

[00:15:31] Speaker 03:
And so I'm wondering about whether we need a limited remand, whether that would be helpful to be able to show the final winter factor is whether your clients face irreparable injury.

[00:15:46] Speaker 03:
One, I think the easiest showing of irreparable injury, the most tangible would be the very personal fact of being transgender.

[00:15:55] Speaker 03:
Because once that's secret, for some students, I think that would be secret and private information.

[00:15:59] Speaker 03:
Once that's out of the bag, it's out of the bag.

[00:16:01] Speaker 03:
But I can't tell from this record whether that's happening.

[00:16:05] Speaker 03:
So could you speak to that?

[00:16:06] Speaker 03:
I'm not sure I really have a specific question there, but that's my problem.

[00:16:09] Speaker 03:
And I want to give you the best chance to respond to that.

[00:16:12] Speaker 01:
Yes, Your Honor.

[00:16:14] Speaker 01:
we think we have enough information in the record to show the limited availability that we're talking about three stalls spread across three buildings in a school with over a thousand people that bathrooms are remote.

[00:16:27] Speaker 01:
And by definition, when you go to the second building, if you're in that first one without a bathroom, there's one stall.

[00:16:34] Speaker 01:
So the chance of that being occupied is higher.

[00:16:37] Speaker 01:
And I don't think we need more evidence to show that obvious fact.

[00:16:40] Speaker 01:
And then we have the fact that restrooms are

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located in various places with various stalls.

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If you're a cisgender student, you're going to have dozens of stalls because people have urgent needs.

[00:16:51] Speaker 01:
And this is a place where people are spending their entire day.

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So I think that is a fact the court can recognize and have before it.

[00:16:58] Speaker 01:
The note from, again, because the experts below agree that restricting access impairs learning.

[00:17:05] Speaker 01:
We already have that evidence in the record.

[00:17:07] Speaker 01:
There's no real dispute there.

[00:17:10] Speaker 01:
and the principal's declaration in the record shows that counselors could have discretion to excuse people being tardy over and over for this, but again, did not try to say that they wouldn't be or that it wouldn't impair their learning.

[00:17:23] Speaker 01:
So I think there's plenty of evidence in the record for that.

[00:17:25] Speaker 01:
And I see that I'm running out of time.

[00:17:27] Speaker 03:
I just have a couple of follow-up questions quickly, forgive me for interrupting.

[00:17:32] Speaker 03:
We know how many students are members of SAGA?

[00:17:36] Speaker 01:
We don't know how many students are members of SAGA this year.

[00:17:40] Speaker 01:
We have a limited amount in the record as far as declarations.

[00:17:45] Speaker 03:
Okay, so I'll take that and just try to move on quickly here.

[00:17:51] Speaker 03:
Do we know how many cisgender students are using the single user stalls or facilities?

[00:17:57] Speaker 01:
We do not know that, Your Honor.

[00:17:59] Speaker 03:
Do we know that they are using, cisgender students are using them?

[00:18:02] Speaker 03:
I know that the principal says they're allowed to do that.

[00:18:06] Speaker 03:
Do we have anything that says that's happening?

[00:18:09] Speaker 01:
We don't have any confirmation of how many people are using it.

[00:18:12] Speaker 01:
We do know under the status quo policy and the Idaho school board policy at addendum 264, that what they suggest and what would be permitted under status quo is for anyone to be able to use those that have a need.

[00:18:24] Speaker 03:
Right.

[00:18:24] Speaker 03:
Okay.

[00:18:25] Speaker 03:
Thank you for your patience with any questions.

[00:18:27] Speaker 01:
Thank you, your honor.

[00:18:29] Speaker 04:
All right.

[00:18:30] Speaker 04:
We'll give you some extra time if you need it, Mr. Olson.

[00:18:35] Speaker 04:
And we'll hear from,

[00:18:39] Speaker 04:
Council for Ms.

[00:18:42] Speaker 04:
Critchfield, Mr. Hurst, next.

[00:18:48] Speaker 00:
Thank you, Your Honor.

[00:18:49] Speaker 00:
May it please the court, Alan Hurst on behalf of Superintendent Critchfield and the other appellees.

[00:18:54] Speaker 00:
I think I'll start by addressing some of the record questions and the irreparable harm questions that the court's been raising.

[00:18:59] Speaker 00:
And then from there, I would like to spend some time addressing the merits since that's the most important winners factor.

[00:19:05] Speaker 00:
I would say that yes, we have a very limited record.

[00:19:08] Speaker 00:
We don't know, as I think has been admitted, how many Saga members are transgender and would be taking advantage of an injunction like this.

[00:19:15] Speaker 00:
He talks about the harm of these members being outed.

[00:19:18] Speaker 00:
We don't know whether any of them are not already outed.

[00:19:21] Speaker 00:
This is not something that exists in the record for us to be able to know about.

[00:19:25] Speaker 00:
Another key fact that I think can't even be fixed by a limited remand is that the statute does not actually say, here is the accommodation, it has to be these other restrooms.

[00:19:36] Speaker 00:
What the statute says is,

[00:19:38] Speaker 00:
there is a process.

[00:19:40] Speaker 00:
If you are a person who does not feel comfortable using the multi-occupancy restroom assigned to your sex, then you can submit a request for reasonable accommodation in writing, and the school has an obligation to provide you with a reasonable accommodation.

[00:19:53] Speaker 00:
To my knowledge, no such request has been made.

[00:19:56] Speaker 00:
And so we don't know what the school's accommodation will look like once the request has been made in writing.

[00:20:03] Speaker 00:
And so perhaps it's the case

[00:20:06] Speaker 00:
that the school based on the written request determines that the Frank Church building that does not have a single occupancy restroom, that that's not an adequate reasonable accommodation.

[00:20:16] Speaker 00:
In that case, the school would have a duty to come up with some other accommodation that would be reasonable under the statute.

[00:20:23] Speaker 00:
And because the school has that duty, I don't think the Frank Church, at least at this point in the proceedings, I don't think the Frank Church building can be a justification for an injunction against the whole statute.

[00:20:33] Speaker 00:
We need to see how the statute works in this case first.

[00:20:35] Speaker 02:
Are you are you representing?

[00:20:39] Speaker 02:
And I'm sure you have information and we were also asking your friend what his information was.

[00:20:44] Speaker 02:
But are you representing that you have been relatively recently told that no one has asked for a reasonable accommodation?

[00:20:53] Speaker 02:
Or are you just saying you don't know of anything in the record that suggests that that happened?

[00:20:59] Speaker 00:
I can't say that I've been relatively recently told that no, but I don't know of anything record that says that's happened and I don't have any other

[00:21:06] Speaker 00:
out of the record information that suggests that's happened.

[00:21:08] Speaker 02:
So it's possible that it has happened?

[00:21:11] Speaker 00:
Yes.

[00:21:12] Speaker 00:
I can't say with complete certainty that it has not happened, but it has not happened in the record.

[00:21:17] Speaker 03:
So I'm going to follow up your statement about harm and the harm of being outed.

[00:21:22] Speaker 03:
And you said it's not clear.

[00:21:25] Speaker 03:
Perhaps these perhaps Saga members have already been outed, but

[00:21:30] Speaker 03:
I'm wondering if that means you're limiting the acknowledgement of harm, the state's acknowledgement of harm to being outed as opposed to the expert testimony declarations that we have here also discusses the harm affiliated with being treated differently or ostracized or just being forced to use a different facility.

[00:21:57] Speaker 00:
I acknowledge there's discomfort there.

[00:21:58] Speaker 00:
I acknowledge that especially there's certainly harm if people cannot find a restroom in time to use it and then thus the search for a restroom would interfere with their educational endeavors.

[00:22:10] Speaker 00:
I don't think anybody disputes that that would be a harm.

[00:22:13] Speaker 00:
Like your honor, I'm not convinced that we have a record to know that that is happening in this case.

[00:22:18] Speaker 00:
Beyond that, as far as the record and the experts, we do have some disagreement among the experts.

[00:22:23] Speaker 00:
Our expert thinks that the

[00:22:25] Speaker 00:
that the single occupancy restrooms are the best solution for transgender identifying students.

[00:22:31] Speaker 00:
So anyway, yes, we need more record.

[00:22:34] Speaker 00:
We don't know how this is playing out on the ground because the appeal was filed before the school year began.

[00:22:38] Speaker 03:
So a minute ago, one of you, perhaps as opposing council indicated there's a thousand people at this high school.

[00:22:46] Speaker 03:
Do you know where that is in the record?

[00:22:49] Speaker 00:
I do not, your honor.

[00:22:50] Speaker 03:
Okay.

[00:22:51] Speaker 03:
So,

[00:22:52] Speaker 03:
Could you talk to me a little bit about availability?

[00:22:54] Speaker 03:
It's sounding like I don't hear you pushing back on the premise that if a transgender student were indeed forced to use a bathroom, a restroom that did not correspond with their gender identity, that there'd be a harm there, at least for purposes of this argument.

[00:23:09] Speaker 03:
I don't hear you pushing back on that.

[00:23:11] Speaker 03:
SB 1100 doesn't require that.

[00:23:14] Speaker 03:
Well, so maybe the premise is, did I interrupt you?

[00:23:16] Speaker 03:
Are you pushing back on that?

[00:23:17] Speaker 00:
Oh, no.

[00:23:20] Speaker 00:
I agree, forcing someone to use a restroom that they're uncomfortable with is a harm to that person.

[00:23:24] Speaker 00:
The problem, of course, is that the transgender individuals are not the only people who might be made uncomfortable.

[00:23:29] Speaker 00:
Transgender people are diverse.

[00:23:32] Speaker 00:
Some of them do successfully pass as the opposite sex.

[00:23:34] Speaker 00:
Some of them do not.

[00:23:35] Speaker 00:
Some of them don't try.

[00:23:37] Speaker 00:
We don't know how members of the opposite sex will feel on the arrival of these transgender people in the room.

[00:23:45] Speaker 00:
They may be made to feel uncomfortable.

[00:23:47] Speaker 00:
That is a harm, too.

[00:23:48] Speaker 00:
It weighs on both sides that way.

[00:23:49] Speaker 03:
I'm sorry.

[00:23:51] Speaker 04:
Go ahead.

[00:23:53] Speaker 03:
Go ahead, Judge Christian.

[00:23:54] Speaker 03:
Thank you, Judge.

[00:23:55] Speaker 03:
I was just going to follow up to say that I'm accepting that, that this is a complicated situation for our school leaders and the SB 1100 doesn't require someone with a male appearance to walk into a women's bathroom, doesn't require it.

[00:24:09] Speaker 03:
But it is why it seems to be really critical from a constitutional perspective that we make sure these bathrooms are indeed accessible.

[00:24:18] Speaker 03:
and truly available in every sense.

[00:24:20] Speaker 03:
And that would include students being able to get to class on time and knowing that there's enough of them to handle the number of people who need to use them.

[00:24:29] Speaker 03:
That was my only point.

[00:24:32] Speaker 03:
I think I interrupted Judge Wardlaw.

[00:24:35] Speaker 04:
I'm sorry, I didn't realize you had a follow-up.

[00:24:39] Speaker 04:
It's hard when we're all appearing by video to no cues.

[00:24:45] Speaker 04:
So my question is though,

[00:24:48] Speaker 04:
With the status quo being what it is, what evidence is there of harm to the other students?

[00:24:57] Speaker 04:
Because my understanding of the status quo is that these students that are members of SAGA are already allowed to use the restroom of their gender identity.

[00:25:14] Speaker 04:
So is there evidence of harm to the students that's

[00:25:18] Speaker 04:
in the record, the other students.

[00:25:21] Speaker 00:
Sorry, Your Honor, excuse me for talking over you.

[00:25:24] Speaker 04:
No, I'm just trying to clarify my question.

[00:25:28] Speaker 00:
We do have the AC declaration, right?

[00:25:30] Speaker 00:
We do have this event that happened at Boise High School last year where exactly what happened is disputed, but what is not disputed is that there was extremely uncomfortable interaction between two students that I think affected both of them for the worse.

[00:25:46] Speaker 00:
So we know about that one,

[00:25:49] Speaker 00:
We don't know if there are others.

[00:25:51] Speaker 00:
I don't think that we can say with confidence that there are no problems in the status quo.

[00:25:56] Speaker 02:
Well, the status quo right now, though, is the statute is in effect, right?

[00:26:03] Speaker 00:
That's correct, Your Honor.

[00:26:04] Speaker 02:
And I mean, not to keep going back to this, but we don't know how that new status quo has worked on the ground or has affected either cisgender or transgender students.

[00:26:23] Speaker 00:
And we don't know what additional accommodations might be made if it's determined that the present accommodations are not reasonable under the statute.

[00:26:31] Speaker 03:
Counsel, I think the district court didn't make this finding.

[00:26:34] Speaker 03:
He didn't go there.

[00:26:36] Speaker 03:
He talked about a minor harm, and I guess I would push back on that.

[00:26:39] Speaker 03:
But he thought the harm wouldn't be irreparable.

[00:26:42] Speaker 03:
And the district court cited page 925 of Roe for the proposition that the Ninth Circuit has already held that this alternative accommodation is valid and will not otherwise out a person of transgender.

[00:26:57] Speaker 03:
We didn't hold that in Roe.

[00:26:58] Speaker 03:
What I don't know is whether or not perhaps there's confusion, because was that argued?

[00:27:02] Speaker 03:
Did the council below argue to the district court that Roe made this holding?

[00:27:08] Speaker 00:
I'm afraid I can't answer that, Your Honor.

[00:27:11] Speaker 00:
I don't know the answer to that question.

[00:27:12] Speaker 03:
OK, so maybe it's just a misunderstanding.

[00:27:15] Speaker 03:
But since we haven't reached that, and I don't know how we could have, because we didn't have at that point even the floor plan, much less a decorative view, or we just had a total void about the on the ground

[00:27:28] Speaker 03:
reality.

[00:27:30] Speaker 03:
So it seems to me that our district court, who is labored over his case, missed making this finding.

[00:27:40] Speaker 03:
And I don't know what he would have decided had he had an occasion to hear the evidence and decide about the availability of these restrooms.

[00:27:47] Speaker 03:
That's my thinking.

[00:27:50] Speaker 00:
My recollection is that the district court's ruling on this point was also motivated by a citation to the statute, like the accommodation provision.

[00:27:59] Speaker 00:
And so I think the district court looked at the statute and said, well, a reasonable accommodation must be necessary.

[00:28:04] Speaker 00:
And therefore, if the statute is in effect, they won't be significantly harmed, because if they were significantly harmed, then it wouldn't be a reasonable accommodation.

[00:28:11] Speaker 03:
I think that's fair.

[00:28:12] Speaker 03:
That might have been what the district court meant.

[00:28:13] Speaker 03:
And if you're talking about the harm, or sorry, the state's interest being

[00:28:18] Speaker 03:
you know, the bodily exposure concern that we talked about, that our panel certainly talked about in Roe and the state was advancing when we were looking at a facial challenge, when we were considering showers and bathrooms and whatnot.

[00:28:32] Speaker 03:
Today, we're looking at bathrooms, just restrooms at Boise High School.

[00:28:37] Speaker 03:
So does the state have a different interest today that is broader than the concern about bodily exposure?

[00:28:45] Speaker 00:
I think that the state has a strong privacy interest, Your Honor, and thank you for the redirection to the merits, which I would like to talk about a bit.

[00:28:51] Speaker 00:
And if I'm asked, you know, where is the evidence of the record of the privacy interest, I'd direct the court's attention back to the map that we look at these restrooms, right?

[00:29:00] Speaker 00:
To begin with, look at the layouts is what I would say.

[00:29:02] Speaker 00:
To begin with, they didn't have to create separate boys and girls rooms when the statute was passed.

[00:29:08] Speaker 00:
They already had them.

[00:29:09] Speaker 00:
There was a reason for that.

[00:29:10] Speaker 00:
Next, you look at the layouts of these restrooms and you can see that they are all set up in such a way that you can't see the toilets from the hallway even when the stall doors are open.

[00:29:20] Speaker 00:
Sometimes they have an extra door that obscures the, excuse me, sometimes they have an extra wall that obscures the doorway from the rest of the restroom, even the common areas.

[00:29:30] Speaker 00:
For a few of the girls restrooms, there are actually two doors that you have to go through from the hallway in order to get into the girls restroom.

[00:29:37] Speaker 00:
All of these things to me suggest

[00:29:40] Speaker 00:
that there is an interest in privacy that has always existed in these spaces and that the architects have always understood this.

[00:29:47] Speaker 00:
And essentially everyone has always understood this.

[00:29:49] Speaker 00:
Also on these diagrams, you'll see that all of the men's restrooms have urinals in them, which means that in half of the restrooms we're talking about, the district court is exactly correct that people are in a state of partial undress without a stall around them.

[00:30:04] Speaker 03:
So as far as we can tell, there are dividers along between the urinals.

[00:30:09] Speaker 03:
But if I could ask you to perhaps just refer back, I wasn't meaning to direct you to the merits.

[00:30:17] Speaker 03:
I was actually trying to get at, forgive me, but I'm actually trying to follow up on the district court's idea about what the harm is.

[00:30:23] Speaker 03:
He referred to this as a minor harm.

[00:30:25] Speaker 03:
I mean, in fairness, at the time, the state had been advancing its interest in describing it as an interest in preventing bodily exposure.

[00:30:32] Speaker 03:
So if that's what the district court had in mind, because that's the harm, or the interest the state was advancing, then using an alternative facility, I think, clearly would alleviate that concern.

[00:30:44] Speaker 03:
There's not going to be any danger of exposure.

[00:30:47] Speaker 03:
But there's this other harm that we don't have any findings about.

[00:30:50] Speaker 03:
And that's a harm, at least, that you and I have discussed.

[00:30:55] Speaker 03:
The harm of outing?

[00:30:57] Speaker 03:
The harm of outing and the harm of being treated as being shunned

[00:31:01] Speaker 03:
You know, inconsistent with the expert stuff and declarations, we certainly have evidence of that.

[00:31:08] Speaker 03:
And that wouldn't be addressed at all.

[00:31:11] Speaker 03:
In fact, it might be exacerbated.

[00:31:13] Speaker 03:
We don't know.

[00:31:14] Speaker 03:
We just have declarations that anticipate this will be a problem.

[00:31:17] Speaker 03:
You see what I mean?

[00:31:19] Speaker 00:
Yes, I understand that entirely.

[00:31:21] Speaker 00:
I would point out that this feeling of being excluded and shunned might also apply to the students who would feel uncomfortable in these restrooms if the injunction is granted.

[00:31:30] Speaker 00:
in this court's parents for privacy case, where you had the opposite side, right?

[00:31:34] Speaker 00:
You had the parents suing to prevent the kind of policies that Mr. Olson is arguing for.

[00:31:40] Speaker 00:
And this court said effectively, well, the other restrooms, like the single occupancy restrooms, they work, that's good enough.

[00:31:47] Speaker 00:
If it's good enough for them, then I think that's at least like a prima facie showing that it's good enough for anybody.

[00:31:52] Speaker 03:
Well, it is the flip side of the coin though.

[00:31:56] Speaker 03:
Those cisgender students did not voice concern about being outed.

[00:32:00] Speaker 03:
I'm not trying to prevent you from talking about the merits if you want to, but I just wanted to explore your, the state's position on those points.

[00:32:06] Speaker 01:
Okay.

[00:32:07] Speaker 04:
Can I just ask Mr. Hurst, are you arguing, you're not arguing today that the existence of these three restrooms are in fact a reasonable accommodation.

[00:32:20] Speaker 04:
Are you?

[00:32:21] Speaker 00:
I don't think I am able to say that on this record.

[00:32:26] Speaker 00:
Like it has not been tested.

[00:32:28] Speaker 00:
you know the request has not been made to my knowledge.

[00:32:32] Speaker 04:
But I have to the district court had to assume that that was a reasonable accommodation to reach the ruling it did correct.

[00:32:42] Speaker 00:
I'm I'm not certain of that the district court may simply have concluded that a reasonable accommodation must be made available and therefore the district court could assume that one would be made available.

[00:32:53] Speaker 00:
Or the district court may have determined simply that there was not a sufficient record to show that the accommodation was unreasonable.

[00:33:00] Speaker 00:
Those are other interpretations of board sort.

[00:33:02] Speaker 02:
Because the record does show there are these other bathrooms and that there's a requirement that if someone doesn't think they're in the statute, at least that if someone doesn't think they're reasonable, they have to request something else.

[00:33:16] Speaker 00:
Correct, your honor.

[00:33:22] Speaker 00:
Seeing no further questions on this topic, I would like to use the remainder of my time on the merits.

[00:33:27] Speaker 00:
To me, I'm grateful to hear Mr. Olson agree that separate boys and girls rooms are constitutional, legal, but that's not what this case is about.

[00:33:37] Speaker 00:
And I'm grateful to hear him saying that they're seeking a narrow injunction and not something that would apply to the entire state.

[00:33:41] Speaker 00:
My concern is that I don't see the legal theory that would stay narrow.

[00:33:46] Speaker 00:
I don't see the way that a ruling that, well, let's put it this way, under equal protection.

[00:33:54] Speaker 00:
Mr. Olson's argument is that this is both a sex-based and a gender identity-based classification.

[00:33:59] Speaker 00:
It fails heightened scrutiny under both of those prongs because the state has no privacy interest in those stalls, excuse me, in the restrooms once you put the stalls up.

[00:34:07] Speaker 00:
But if that's the case, once you put the stalls up, what's the state's interest in dividing the restrooms to begin with, right?

[00:34:13] Speaker 00:
It seems to me that there are three options.

[00:34:15] Speaker 00:
Either heightened scrutiny is satisfied, or heightened scrutiny doesn't apply, or all the restrooms have to be unisex.

[00:34:21] Speaker 00:
And I haven't heard an argument from Mr. Olson that distinguishes that and explains why that's not true.

[00:34:26] Speaker 00:
On the Title IX side, it's the same thing, right?

[00:34:29] Speaker 00:
Their argument isn't that Title IX prohibits gender identity discrimination.

[00:34:33] Speaker 00:
Their argument is that they are being denied access to the restroom onto a particular restroom on the basis of sex, and that that constitutes sex discrimination under section 1681.

[00:34:43] Speaker 00:
But if that's sex discrimination under 1681, and if restrooms are not living facilities under section 1686, then nobody can be denied access to a restroom on the basis of their sex.

[00:34:56] Speaker 00:
And once again, the conclusion is we have to have unisex restrooms.

[00:34:59] Speaker 00:
Which I think is why the court said at the footnote 15 of the Roe opinion, right, that this is not what the statute meant, you know, that at the time Title IX was passed, it was so assumed that restrooms and locker rooms and showers would be, you know, would be separated that it did not merit special mention in the text of the statute.

[00:35:19] Speaker 00:
So that that would be how I would lay this out is I don't see the way to rule for them on these theories.

[00:35:25] Speaker 00:
and still leave the school able to maintain separate boys and girls restrooms as it has always done.

[00:35:38] Speaker 00:
Let me take a moment here.

[00:35:42] Speaker 00:
Beyond that, I think that the school, I think that the court shouldn't, I've discussed the interest in privacy.

[00:35:48] Speaker 00:
I think the court also shouldn't discount the interest in safety.

[00:35:53] Speaker 00:
We have no desire, no intention to accuse transgender people of being particularly likely to commit acts of violence or voyeurism or the like in restrooms.

[00:36:03] Speaker 00:
On the other hand, people who go into that restroom don't know whether the person they're seeing is transgender.

[00:36:08] Speaker 00:
We cite a number of cases.

[00:36:09] Speaker 00:
There's one news article on briefs that talks about six cases where men have dressed up in female attire and gone into the restrooms, used that to get access to the restrooms, and then committed acts of voyeurism inside the restroom or the locker room or what have you.

[00:36:21] Speaker 03:
A male could do that right now.

[00:36:25] Speaker 03:
The difference would be that the means to end fit is really tough for you on the safety argument council.

[00:36:31] Speaker 03:
Alright, what's your best shot?

[00:36:33] Speaker 03:
Because I am very skeptical.

[00:36:36] Speaker 00:
OK, I. The means to end fit is that if that happens now, nobody knows that he's not supposed to be there.

[00:36:45] Speaker 00:
Basically, right?

[00:36:46] Speaker 00:
If that happens now, excuse me, not now.

[00:36:48] Speaker 00:
If that happens under an injunction, nobody knows he's not supposed to be there.

[00:36:51] Speaker 00:
If that happens with an injunction where the law is not in effect, a girl going into that restroom does not know that that restroom is an unsafe place to be because of this person's presence.

[00:37:00] Speaker 00:
The girl will assume this person's been cleared by the school.

[00:37:03] Speaker 00:
This person is allowed to be here.

[00:37:04] Speaker 00:
So it's maintaining the separate spaces allows people to feel safe.

[00:37:09] Speaker 00:
It's not merely an interest in actual physical safety.

[00:37:12] Speaker 00:
It's an interest in perceived safety because if you know if

[00:37:16] Speaker 00:
again, leaving the transgender issues out of it, right?

[00:37:18] Speaker 00:
If all the bathrooms were made unisex tomorrow, the result of that would be that girls and not boys would sometimes fear for their safety in restrooms.

[00:37:29] Speaker 00:
And that would be a detriment to the educational experience of girls and not boys.

[00:37:34] Speaker 00:
So maintaining these separate restrooms, I mean, we cite an article in our brief, right?

[00:37:39] Speaker 00:
That separate women's spaces like this are in fact a civil rights triumph

[00:37:45] Speaker 00:
that have enabled women to succeed in a variety of areas in education, in sports, and so on.

[00:37:51] Speaker 00:
And that without those spaces, people will be hurt.

[00:37:55] Speaker 00:
Whether that's safety, whether it's privacy, whether it's simple feeling comfortable at school and being able to succeed, the people affected on the other side of the injunction have those interests the same way that the people who would benefit from the injunction have.

[00:38:08] Speaker 00:
And as the court has discussed, I don't think we have a record on which we can determine which of those harms would outweigh the other.

[00:38:18] Speaker 00:
Seeing no further questions, I thank your honors for your consideration and I ask that the injunction be denied.

[00:38:24] Speaker 04:
All right.

[00:38:25] Speaker 04:
Thank you, counsel.

[00:38:26] Speaker 04:
Mr. Olson, you may conduct your rebuttal.

[00:38:35] Speaker 01:
Thank you, your honors.

[00:38:36] Speaker 01:
Taking that last point first, I agree there's no basis to find that there was clear error in the court determining that the safety evidence was insufficient, was unclear, exaggerated, or speculative.

[00:38:48] Speaker 01:
Respectfully, Mr. Hurst is simply wrong as to how this would play out.

[00:38:52] Speaker 01:
Under the status quo, someone who is John during math class is also John when he goes to the restroom.

[00:38:57] Speaker 01:
Under SB 1100, his gender has to switch when he goes in if he has an urgent need.

[00:39:01] Speaker 01:
So it completely has the opposite absurd results.

[00:39:06] Speaker 01:
Regarding whether defendants have provided enough evidence to say that there is no harm because of a separate restroom and therefore you don't even have to look at the discriminatory classification in the law,

[00:39:17] Speaker 01:
They simply have not done that.

[00:39:18] Speaker 01:
They've had an opportunity to do it.

[00:39:20] Speaker 01:
We have plenty of evidence in the record that there is significant harm.

[00:39:23] Speaker 01:
In the context of civil rights, sending people to separate facilities has never been the answer and it should not start here.

[00:39:31] Speaker 01:
There is significant injury.

[00:39:32] Speaker 01:
We have evidence from multiple studies below at the lasting harm it sends.

[00:39:36] Speaker 01:
It's very different to have the choice to go to a separate facility as an additional option than it is to be forced to go there because of who you are.

[00:39:44] Speaker 01:
And on your way down that hallway to get there,

[00:39:47] Speaker 01:
You pass a girl's room that the state has pasted a message underneath that says, but not you.

[00:39:53] Speaker 01:
That is very different than a student in Parents for Privacy getting an additional option to use a room and being able to still have that fallback option when they need it.

[00:40:02] Speaker 01:
And Parents for Privacy is very important here because it found there was no plausible privacy interest.

[00:40:08] Speaker 01:
It was a dismissal, affirming a dismissal.

[00:40:10] Speaker 01:
No plausible privacy interest when you have two users of a restroom, one transgender and one not.

[00:40:15] Speaker 01:
No privacy interest implicated.

[00:40:17] Speaker 01:
So here to say that there is also at the same time an exceedingly persuasive justification to separate those students by barring all transgender students is very difficult to reconcile with parents for privacy, even with the different posture there because it deals with this context.

[00:40:35] Speaker 01:
And as I mentioned, this context is what really matters is these two users using restrooms for their ordinary purposes who both have a right to be there.

[00:40:44] Speaker 01:
We do have additional evidence in the record from Daisy Davis's declaration that using separate facilities in the past caused her problems.

[00:40:52] Speaker 01:
We have evidence from Jane Doe talking about her process, trying to avoid the restrooms until she could qualify because she was far enough in her transition and what that did to her.

[00:41:03] Speaker 01:
Whereas plenty of evidence in the record to show that this is a daily harm and that we have a strong showing to provide relief in the interim while this appeal continues.

[00:41:15] Speaker 01:
On the title, well, I see I'm about out of time.

[00:41:18] Speaker 01:
If you would like me to address the title.

[00:41:19] Speaker 04:
Give you another minute or so, but I'm interested in your position.

[00:41:23] Speaker 04:
You say your position is that these three bathrooms are not a reasonable accommodation.

[00:41:30] Speaker 01:
They do not mitigate the harm.

[00:41:34] Speaker 01:
They definitely do not eliminate the harm and they can't avoid, defendants can't avoid the test altogether.

[00:41:41] Speaker 01:
by just assuming no one's ever going to use the classification they've put in place.

[00:41:45] Speaker 01:
So I think first we have to keep the legal test, whether they can justify sorting the students the way they have from the measure of harm where single use comes into play.

[00:41:55] Speaker 01:
And it certainly, there's plenty of evidence that forcing people to go elsewhere based on their status is increasing the damage and not solving it.

[00:42:04] Speaker 02:
Council, you would know this even if your friend didn't have any of the individuals who are SAGA members made a reasonable accommodation filing.

[00:42:17] Speaker 02:
Submission.

[00:42:19] Speaker 01:
Under SB 1100 this year, are you speaking of?

[00:42:24] Speaker 01:
Yes.

[00:42:25] Speaker 01:
I believe the difference between the status quo and what we have now is they would have had that additional option as needed if they weren't having an urgent need already.

[00:42:34] Speaker 01:
and probably already have that in place.

[00:42:36] Speaker 01:
The difference with SB 1100 is now, if they have to go to the multi-user for some reason, now they have to go to the one with the statute.

[00:42:43] Speaker 02:
No, my question was more specific.

[00:42:46] Speaker 02:
Your friend has talked about how the statute allows for a specific request for a reasonable accommodation, I think, in writing.

[00:42:55] Speaker 02:
Have any of the individuals who would be protected by the injunction you're seeking filed or submitted such a request in writing?

[00:43:05] Speaker 01:
I presume they would have continued their pre-existing request, which is to use those single facilities that have existed previously and still exist.

[00:43:19] Speaker 01:
And briefly, Your Honor, on the Title IX issue, I disagree with my friend on the other side that finding for plaintiff's reasoning, which is

[00:43:33] Speaker 01:
very much consistent with Bostock and the other circuits on this Title IX issue that have found this a violation and decided it does not lead to anyone being able to use any restroom because there would not be the threshold showing of discrimination someone would need to have unless they were in a position where they weren't able to use a restroom that is consistent with their gender identity, which this circuit has held is not something that can be changed or forced into consistency without extreme harm.

[00:44:01] Speaker 01:
And whether or not

[00:44:03] Speaker 01:
Congress anticipated this application is also an issue squarely addressed in the same reasoning used under Bostock.

[00:44:12] Speaker 01:
And of course, in this circuit, we look at interpreting Title VII and IX consistently in that way.

[00:44:19] Speaker 01:
Looking at Congress's silence around whether you can separate restrooms in the first instance is not

[00:44:29] Speaker 01:
an opportunity for the court to add an ad hoc exception, which is something Bostock talks about along those same exact lines.

[00:44:37] Speaker 01:
Instead, the appropriate way to think about it is that this is perhaps an unintended consequence.

[00:44:42] Speaker 01:
And Bostock starts out with the first two sentences all the way through and at the end saying with this type of statute, that's exactly what happens.

[00:44:49] Speaker 01:
It's practically guaranteed to happen.

[00:44:53] Speaker 01:
And what the court said there is our job is still to just apply the text as it is,

[00:44:59] Speaker 01:
Assuming sex means nothing more than sex assigned at birth.

[00:45:03] Speaker 01:
This court has already found that SB 1100 discriminates based on sex.

[00:45:07] Speaker 01:
And so if it's not carved out by the statute, then it is covered under Title IX.

[00:45:13] Speaker 01:
And so the only narrow finding the court would need to find there if it went to Title IX.

[00:45:18] Speaker 01:
And we don't think the court needs to.

[00:45:20] Speaker 01:
We think there's a straightforward basis for relief under equal protection.

[00:45:25] Speaker 01:
Court could do what it did in Dovey Horn and just reach that.

[00:45:28] Speaker 01:
But if it does,

[00:45:30] Speaker 01:
the, it would just need to simply reach the issue that restrooms in particular are not living facilities.

[00:45:37] Speaker 01:
And therefore it's not carved out from the clear text, regardless of the definition of sex.

[00:45:43] Speaker 01:
Do you want to sum up council?

[00:45:45] Speaker 01:
I'm sorry.

[00:45:46] Speaker 01:
I did not notice my time was counting up instead of down.

[00:45:48] Speaker 01:
My apologies.

[00:45:49] Speaker 01:
Yeah.

[00:45:51] Speaker 01:
So thank you for your time.

[00:45:52] Speaker 01:
Very much appreciate it.

[00:45:54] Speaker 01:
And with that appellant would request and urge the court to grant injunctive relief pending appeal.

[00:46:01] Speaker 04:
Thank you very much, counsel.

[00:46:03] Speaker 04:
And thank you both for your excellent arguments today.

[00:46:07] Speaker 04:
We will take this case or take this motion under submission.

[00:46:14] Speaker 04:
And this session of the court is adjourned for today.

[00:46:18] Speaker 04:
Thank you.