[00:00:01] Speaker 03:
All right, Mr. Wren, you may proceed.

[00:00:03] Speaker 00:
Good morning, Your Honors.

[00:00:04] Speaker 00:
May it please the Court, Peter Wren on behalf of Appellants.

[00:00:06] Speaker 00:
I'll reserve five minutes for rebuttal.

[00:00:08] Speaker 00:
The law at issue in this case seeks to blanket the entire state of Idaho with a mandate of discrimination and ban every transgender student in every school from every facility matching their gender identity.

[00:00:21] Speaker 00:
Before last year, there was never even a local policy in Idaho that did so.

[00:00:25] Speaker 00:
And there is not a single piece of evidence that longstanding status quo harmed a single person,

[00:00:30] Speaker 00:
But overnight, SB 1100 would yank transgender students out of the shared facilities that they've used for years without incident, banish them to single-user facilities isolated from their peers, and rob them of their sense of belonging.

[00:00:45] Speaker 00:
A preliminary injunction is warranted by each of our claims, but if I could, I'd like to begin with equal protection before discussing Title IX and the impact of the new regulations.

[00:00:55] Speaker 00:
Defendants concede that heightened scrutiny is required under equal protection, regardless of whether you view the law as discriminating against transgender students based on their sex or their status.

[00:01:05] Speaker 00:
That means that the law is presumptively unconstitutional, and the government bears the heavy burden of proving an exceedingly persuasive justification with evidence.

[00:01:15] Speaker 00:
That is an extremely fact-bound standard, as this court has recognized.

[00:01:19] Speaker 00:
But Idaho hasn't lifted a finger to meet that factual burden.

[00:01:22] Speaker 00:
There is not one crumb of record evidence in support of Idaho's privacy or safety rationales.

[00:01:28] Speaker 00:
That alone is fatal.

[00:01:30] Speaker 00:
And that silence speaks volumes because a huge swath of Idaho schools have even had inclusive policies explicitly permitting transgender students to use facilities matching their gender identity.

[00:01:41] Speaker 00:
Counsel, I'm correct.

[00:01:42] Speaker 01:
You brought only a facial challenge.

[00:01:45] Speaker 00:
It was both facial and as applied.

[00:01:47] Speaker 00:
But as we've noted, sometimes the label is a bit deceiving because we haven't sought relief as to, for example, the prohibition of cisgender people from facilities different from their assigned sex.

[00:01:58] Speaker 01:
But you sought to have the entire law enjoined.

[00:02:03] Speaker 00:
As applied to transgender people, yes.

[00:02:06] Speaker 01:
Yes, but not, for example, as applied to the particular plaintiff.

[00:02:12] Speaker 00:
I think it's both, Your Honor.

[00:02:14] Speaker 00:
Go ahead.

[00:02:16] Speaker 00:
The scope of relief here is as to the law as a whole, as applied to all transgender people in the state of Idaho.

[00:02:22] Speaker 00:
And that would of course include the name claim of Sir Rebecca Rowe and the student organization.

[00:02:27] Speaker 03:
What do you do with the Labrador case that the Supreme Court recently handed down?

[00:02:31] Speaker 00:
Absolutely.

[00:02:32] Speaker 00:
And I'm fully aware that this court has taken back the HECOX decision in order to address the import of Poe versus Labrador.

[00:02:40] Speaker 00:
But that type of narrowing of relief to only the named plaintiffs wouldn't be appropriate here for a very simple reason.

[00:02:46] Speaker 03:
I'm not sure it's appropriate in HECOX, so I'll just stop you there from that assumption.

[00:02:50] Speaker 00:
I understood absolutely, Your Honor.

[00:02:53] Speaker 00:
But to the extent that that is an argument that defendant would like to make, which they never made to date, the important point is that they never made it below.

[00:03:01] Speaker 00:
It was absolutely waived.

[00:03:02] Speaker 00:
Nowhere in their opposition to the motion for a preliminary injunction

[00:03:05] Speaker 00:
which can be found at District Court Docket 47-1 was this argument made.

[00:03:10] Speaker 00:
So that's not on the table at the moment.

[00:03:13] Speaker 00:
And furthermore, if they had raised that argument, we would have been able to respond in due course.

[00:03:18] Speaker 00:
So for example, if a transgender student was traveling to another school for whatever reason, be it a debate tournament or to watch a football game,

[00:03:27] Speaker 00:
They would also be subject to challenge by other students for their use of the facilities.

[00:03:32] Speaker 00:
After all, part of how this law works is that it essentially encourages students to police each other's facilities usage.

[00:03:41] Speaker 00:
And so it would be totally unworkable for a school to tell its students,

[00:03:45] Speaker 00:
SB 1100 doesn't apply today because we have a transgender student who's visiting.

[00:03:50] Speaker 00:
So that's one example of how the relief that is necessary here has to be statewide in scope, which of course mirrors the scope of the constitutional violation.

[00:04:00] Speaker 04:
I'd like to follow up on your assertion that the state, or your statement that the state doesn't have any evidence, and you said that speaks volumes.

[00:04:07] Speaker 04:
The state's asserted interest here is in preventing embarrassment, shame, and psychological injury, right?

[00:04:12] Speaker 04:
And what we said in Bird versus Maricopa County is that the desire to shield one's unclothed figure from the view of strangers, particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity.

[00:04:24] Speaker 04:
So I'm not so sure they need evidence of this.

[00:04:28] Speaker 04:
fact that you're challenging.

[00:04:31] Speaker 00:
Well, I do think it's their burden under Haydn's scrutiny to actually offer evidence in support of the justifications.

[00:04:36] Speaker 00:
So that's one part of the problem.

[00:04:38] Speaker 00:
But the other part of the problem.

[00:04:39] Speaker 04:
Can you fill that in?

[00:04:41] Speaker 04:
I'm not sure you're answering that.

[00:04:42] Speaker 04:
What about our observation in Byrd?

[00:04:45] Speaker 00:
Well, Byrd involved adverse parties, where we know that there was a plaintiff who objected to the strip search that was conducted at issue there.

[00:04:54] Speaker 00:
But here, we don't have any evidence from any student saying that I object to sharing facilities with a transgender student.

[00:05:00] Speaker 00:
And more importantly, that wouldn't be sufficient in any event to justify the categorical ban that SB 1100 imposes, because Idaho hasn't shown why other non-discriminatory measures wouldn't be able to address any concern about bodily exposure.

[00:05:16] Speaker 00:
In every context regulated by SB 1100, schools can take steps to prevent bodily exposure.

[00:05:22] Speaker 00:
The most obvious example of that is maintaining doors on restroom stalls.

[00:05:27] Speaker 00:
Anyone who wants to avoid being seen by others simply needs to close the door behind them.

[00:05:32] Speaker 00:
And the same type of solutions are available in every single context regulated by the law.

[00:05:37] Speaker 00:
The record that the court actually does have before it shows that transgender students like Rebecca Rowe and AJ have been using the facilities matching their gender identity for years.

[00:05:48] Speaker 00:
Without any evidence of harm and that's further corroborated by the unrebutted Testimony of both school administrators and law enforcement who have overseen inclusive policies governing tens of thousands of students for years This provision could have been drafted more narrowly that it was required to be drafted more narrowly

[00:06:13] Speaker 00:
That's not my argument, Your Honor.

[00:06:14] Speaker 00:
It's that there will always be non-discriminatory measures available to the extent the concern is about preventing bodily exposure.

[00:06:22] Speaker 00:
Now, to the extent the argument is the mere presence of a transgender person in this facility violates my rights, there's a different response to that.

[00:06:30] Speaker 04:
I don't think that's the assertion, so.

[00:06:32] Speaker 04:
Please proceed with your argument.

[00:06:34] Speaker 00:
Certainly.

[00:06:35] Speaker 00:
So the other point I want to raise about Bird, and I think Parents for Privacy makes this point, is that all of those cases that are related to Bird involve coercive settings, where it was, for example, a parole officer barging into a restroom in order to see what the person inside was doing.

[00:06:52] Speaker 00:
Another instance involved a government officer taking gratuitous nude photographs of a victim.

[00:06:59] Speaker 00:
Those cases, in the words of parents for privacy, were egregious.

[00:07:03] Speaker 00:
Totally different from the context of the school environment, which we have here.

[00:07:07] Speaker 04:
Well, why is it different, though?

[00:07:08] Speaker 00:
Well, it's different because the power dynamics, of course, between, let's say, a police officer and someone in custody is not the same as between two students, one transgender who's washing their hands at the sink while the other person happens to be in the same.

[00:07:22] Speaker 04:
But this law, of course, includes showers and locker rooms.

[00:07:28] Speaker 04:
And it's not voluntary that kids take PE class or use the showers.

[00:07:36] Speaker 04:
that are available for the gym, right?

[00:07:38] Speaker 00:
Well, as to those facilities, again, the same non-discriminatory measures that can protect and prevent bodily exposure are equally available there as they are in the restroom.

[00:07:49] Speaker 00:
So let's take the example of locker rooms.

[00:07:50] Speaker 04:
That goes back, I think, to your asserting that they really were required to adopt a different provision because it was possible to tailor this more narrowly.

[00:08:01] Speaker 00:
The point is.

[00:08:02] Speaker 04:
I don't know how to get around that conclusion.

[00:08:05] Speaker 04:
That seems to me to be what you're arguing.

[00:08:07] Speaker 04:
Why am I wrong?

[00:08:09] Speaker 00:
If I understand the argument correctly.

[00:08:10] Speaker 04:
It's not an argument.

[00:08:12] Speaker 04:
It's a question.

[00:08:12] Speaker 04:
I'm trying to figure out what you're arguing.

[00:08:14] Speaker 04:
Are you arguing that this fails because they could have taken more narrowly tailored?

[00:08:22] Speaker 00:
It fails for two reasons, and I think of the government's arguments in two buckets here.

[00:08:25] Speaker 00:
One is they say we have to exclude transgender students because there's no other way we could prevent bodily exposure.

[00:08:32] Speaker 00:
But the record that's before this court confirms that we've had inclusive policies in Idaho for eight years, and there's no evidence as to why that has actually materialized as a problem.

[00:08:42] Speaker 00:
because, again, an opaque barrier.

[00:08:45] Speaker 00:
So if I could just use the example of a locker room, for instance, the reason why a privacy solution is available there to a student who objects to being seen by anyone else, including a transgender student, is that they can also go use a restroom stall in which to change.

[00:09:01] Speaker 00:
As to showers, the same point remains, that you can put up shower curtains.

[00:09:04] Speaker 00:
There are always going to be solutions that can prevent bodily exposure.

[00:09:08] Speaker 00:
So that leaves the only other argument that the government has available to it, which is about the mere presence of a transgender student.

[00:09:15] Speaker 00:
And this court's decision in parents for privacy makes clear that that is not a sufficient interest to justify the exclusion of transgender students.

[00:09:25] Speaker 00:
It said, quote, there is no privacy interest not to share restrooms or locker rooms with transgender students.

[00:09:30] Speaker 00:
We're talking about transgender students who are using the facilities for the same ordinary and permissible purposes as other students.

[00:09:37] Speaker 00:
And this court recognized that even though that may cause subjective discomfort on the part of cisgender students, that that was not, as an object of matter, legally sufficient as a basis for ousting transgender students.

[00:09:50] Speaker 04:
Is it your contention or understanding that Idaho is asserting that this interest that I've just described and quoted as the state's interest in preventing embarrassment, shame, and psychological injury is the assertion of a constitutional right?

[00:10:04] Speaker 00:
That's not, I believe, Idaho's argument.

[00:10:07] Speaker 00:
They're saying that there could be an interest.

[00:10:08] Speaker 00:
But I think that parents for privacy is nonetheless instructive on the point.

[00:10:12] Speaker 00:
We recognize that it, of course, doesn't resolve this case.

[00:10:14] Speaker 00:
It doesn't answer the same question that's presented here.

[00:10:16] Speaker 00:
But the same reasons why this court in parents for privacy was persuaded by the Seventh Circuit's reasoning in Whitaker was that the transgender student's presence poses no greater risk to other users of that facility than any other student who's using the facility at the same time.

[00:10:33] Speaker 00:
But again.

[00:10:33] Speaker 03:
The district courtier didn't get to safety concerns.

[00:10:37] Speaker 03:
He made his decision solely on the privacy concerns.

[00:10:40] Speaker 00:
That's absolutely right, Your Honor.

[00:10:41] Speaker 00:
But I do think that safety also provides no justification for the law here, because Idaho already has.

[00:10:48] Speaker 00:
And so the safety justification, to be clear, is the concern that cisgender students will engage in an elaborate charade of pretending to be transgender in order to access facilities where they're not supposed to be.

[00:11:00] Speaker 00:
And Idaho already takes steps to prevent that.

[00:11:03] Speaker 00:
So Boise School District, for example, for the last eight years has had a policy involving school counselors and written gender support plans to ensure that requests are actually legitimate.

[00:11:15] Speaker 00:
And furthermore, the unrebutted expert law enforcement testimony in the record from the president of the Idaho Association of School Resource Officers

[00:11:23] Speaker 00:
confirms that schools already have all the tools that they need in order to address any misconduct.

[00:11:30] Speaker 00:
And SB 1100 adds nothing to that arsenal.

[00:11:33] Speaker 03:
In fact... Have you considered the recent amendments to our recent Title IX regulations and how they might affect our decision in this case?

[00:11:47] Speaker 00:
Absolutely, Your Honor.

[00:11:47] Speaker 00:
So we believe that we have a likelihood of success even without, on the Title IX claim, even without those regulations, but I do think that the existence of the regulations makes that likelihood even more certain.

[00:11:58] Speaker 00:
But if I could just take one step back, the Title IX claim really turns on two separate issues.

[00:12:03] Speaker 00:
The first question is, is there discrimination based on sex?

[00:12:06] Speaker 00:
And the second question is, is there an exception that nonetheless excuses it?

[00:12:11] Speaker 00:
The answer to the first question is yes, by defendant's own admission.

[00:12:15] Speaker 00:
And the answer to the second question is no, regardless of whether you're looking at the current regulations or the new regulations that were recently released.

[00:12:22] Speaker 00:
So first.

[00:12:23] Speaker 00:
SB 1100 invariably discriminates based on sex against transgender students.

[00:12:29] Speaker 00:
And we know that because of Bostock.

[00:12:32] Speaker 00:
Even if you view sex as nothing more than the sex a person was assigned at birth, that's still the reason why a student like Rebecca Rowe is excluded from the girls' facilities.

[00:12:42] Speaker 01:
So does that mean that the current regulations under Title IX discriminate on the basis of sex?

[00:12:49] Speaker 00:
No, Your Honor.

[00:12:50] Speaker 01:
Or allowed discrimination on the basis of sex?

[00:12:52] Speaker 00:
know, Your Honor, because the regulation, the existing one that Idaho relies upon, only says that you can provide sex separation in facilities.

[00:13:02] Speaker 00:
But the reason you can do that is because that practice doesn't generally cause harm.

[00:13:06] Speaker 00:
At the point that you try to apply the regulation in an instance where it does- I don't understand the second part.

[00:13:11] Speaker 01:
I mean, I'm looking at

[00:13:12] Speaker 01:
I believe that.

[00:13:28] Speaker 01:
When Title IX uses the word sex, it's talking about the sex assigned at birth.

[00:13:35] Speaker 01:
And so to me, if your argument were correct about Title IX, 106.33 would authorize discrimination based on sex.

[00:13:46] Speaker 01:
Why am I wrong?

[00:13:47] Speaker 00:
The key word that I think is missing from that regulation that you just read is the word discrimination.

[00:13:53] Speaker 00:
So the statute itself prohibits discrimination on the basis of sex, which we know from Bostock means differences in treatment that injure protected individuals.

[00:14:03] Speaker 00:
That's the definition of discrimination.

[00:14:05] Speaker 00:
So when you're just separating students, let's say it's cisgender students based on sex, there's no discrimination there because it doesn't cause a cisgender student injury and harm to be excluded from a facility designated for another sex.

[00:14:19] Speaker 00:
But when you try to apply that regulation in the context of a transgender student to exclude them from a facility matching their gender identity, that does cause them harm and therefore it is discrimination.

[00:14:29] Speaker 00:
So there is no

[00:14:30] Speaker 01:
I apologize, I'm just missing your argument because the way I read 106.33, it authorizes recipients to do what you're saying is discrimination because they are authorized as I read it to establish facilities that are just for people of the sex they were born with.

[00:14:57] Speaker 00:
That's not discrimination as applied to cisgender people, because it does not cause them injury.

[00:15:02] Speaker 00:
To the extent that the regulation is trying to authorize discrimination, that's not something that they can do, because the statutory mandate is what controls over the regulation.

[00:15:13] Speaker 00:
But I do think that the new regulation that will be applied in August does make clear that the safe harbor that defendants are seeking here doesn't actually exist.

[00:15:23] Speaker 00:
And again, we are the ones who view the Title IX claim as a statutory one that can be resolved purely by the words of the statute.

[00:15:31] Speaker 00:
It's defendants who are the ones claiming that you should look at the regulations because there's a safe harbor there.

[00:15:36] Speaker 00:
So our arguments don't, to be clear, rely on agency deference.

[00:15:40] Speaker 00:
It's the defendants who claim that the regulations provide them something which it cannot do because it would then carve out from the statutory nondiscrimination rule something that Congress said

[00:15:50] Speaker 00:
you're not allowed to have in the context of facilities.

[00:15:55] Speaker 04:
That's absolutely right, Your Honor.

[00:16:02] Speaker 00:
Living facilities was the language which isn't implicated here by SB 1100.

[00:16:10] Speaker 04:
At a time when Congress thought that was okay, that it was, it felt necessary to say, to speak specifically to bathrooms and to shower rooms.

[00:16:24] Speaker 04:
In other words, it seems to me that would have gone without saying at that time, and you're asking us to read in.

[00:16:30] Speaker 00:
I don't think that's right, Your Honor.

[00:16:31] Speaker 00:
There are exceptions to title lines, statutory ones, a number of them, that Congress chose to write in, which indicates that Congress knew how to write an exception when it wanted to.

[00:16:41] Speaker 04:
Would have accepted dormitories, but not showers?

[00:16:44] Speaker 00:
That is absolutely Congress's prerogative.

[00:16:46] Speaker 01:
In 1972, that that was what they were doing.

[00:16:50] Speaker 00:
that they said the limits, the parameters of the exception, go as far as living facilities.

[00:16:57] Speaker 00:
Essentially, defendants argument would have this court rewrite that provision, statutory provision, and say, what Congress really meant was living facilities, comma, restrooms, comma, locker rooms.

[00:17:07] Speaker 00:
That is not within the province of this court.

[00:17:09] Speaker 00:
The spending clause argument certainly has no force at the point that the new regulations have taken effect.

[00:17:15] Speaker 00:
And the government is well aware of the reach of those prohibitions.

[00:17:22] Speaker 00:
But separate and apart from that, there is clear notice from the language of Title IX itself, because the law broadly prohibits the full scope of discrimination based on sex in all its forms.

[00:17:33] Speaker 00:
The statute doesn't try to list off every instance of discrimination.

[00:17:37] Speaker 00:
And so when recipients take federal dollars, they do so knowing that their liability will be subject to judicial determination.

[00:17:44] Speaker 00:
And the prime example of that is harassment.

[00:17:46] Speaker 00:
There was a time when lower courts held that harassment was not covered by discrimination, but the Supreme Court subsequently corrected that misunderstanding.

[00:17:54] Speaker 00:
This case is no different.

[00:17:55] Speaker 00:
And all of defendants' arguments would equally apply to this court's decision in Grabowski itself, which recognized that Title IX does reach harassment based on perceived sexual orientation.

[00:18:05] Speaker 00:
So ultimately, it's the broad scope of the statutory mandate that gives defendants' notice that they are responsible for all forms of sex discrimination.

[00:18:15] Speaker 00:
And unless there's further questions, I'll reserve the balance of my time for battle.

[00:18:18] Speaker 03:
All right.

[00:18:19] Speaker 03:
Thank you, counsel.

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

[00:18:24] Speaker 03:
Holly?

[00:18:26] Speaker 02:
Madam Chief Judge, and may it please the court, Erin Hawley for the state of Idaho.

[00:18:30] Speaker 02:
Consistent with his duty to educate and care for all of the state's public school students, Idaho enacted SB 1100, a law separating intimate spaces by sex and providing a sex neutral accommodation for anyone uncomfortable with using the boys and girls' spaces.

[00:18:47] Speaker 02:
Plaintiffs attacked that legislation facially and say it violates both the Equal Protection Clause and Title IX.

[00:18:54] Speaker 02:
but SB 1100 substantially relates to the state's important interest in privacy.

[00:19:00] Speaker 02:
As this court said in Hecox, bathrooms and other intimate spaces are quote, by their very nature, implicate important privacy interests.

[00:19:08] Speaker 02:
This is even more true in the school setting where adolescent children are still developing emotionally and physically.

[00:19:15] Speaker 02:
As for Title IX, that statute plainly contemplates the very law at issue here.

[00:19:20] Speaker 02:
It authorized schools and states to separate intimate spaces based on sex.

[00:19:26] Speaker 02:
As the late Justice Ginsburg noted, separate spaces to disrobe, sleep, and perform personal bodily functions are not only permissible, but sometimes authorized.

[00:19:35] Speaker 02:
Plaintiff's far-reaching theory is deeply harmful to the decades of progress in the academic setting made by girls and women.

[00:19:43] Speaker 02:
It dissolves important barriers in intimate spaces and pushes girls to the margins of programs both academically and athletically.

[00:19:52] Speaker 02:
Neither the Equal Protection Clause nor Title IX requires such a result.

[00:19:57] Speaker 02:
I welcome the Court's questions.

[00:20:03] Speaker 03:
Do you think there's a distinction between restrooms, under the Equal Protection Analysis, do you think there's a distinction between restrooms versus changing facilities and overnight lodging?

[00:20:18] Speaker 02:
We don't, Your Honor.

[00:20:19] Speaker 02:
For the reason, as this Court said in HECOX, that bathrooms, by their very nature, implicate the most- Not decide that question.

[00:20:26] Speaker 03:
HECOX did not decide that question.

[00:20:28] Speaker 03:
HECOX just noted a difference between athletic, outdoor athletic facilities and private areas, because that was not an issue in HECOX.

[00:20:40] Speaker 03:
But HECOX did not decide this question.

[00:20:43] Speaker 02:
Sure, Your Honor, and we're not arguing that it did, but what HECOX did do is it recognizes that personal spaces, intimate spaces like bathrooms, do implicate these personal privacy interests.

[00:20:55] Speaker 02:
As Justice Ginsburg said, engaging in the most private of bodily functions in addition to sleeping or showering with someone of the opposite sex involves the most basic of privacy interests.

[00:21:07] Speaker 02:
That's why Congress said that sex permissible

[00:21:10] Speaker 02:
restrictions were permissible in Title IX, precisely as Senator Bayh said in promulgating that statute to protect these sorts of privacy interests.

[00:21:24] Speaker 02:
So we think the privacy interests inherent not only in bathrooms, but as well in showers, in locker rooms, as well as in overnight accommodations.

[00:21:33] Speaker 02:
And with respect to the equal protection claim, as Judge Bennett noted, the plaintiffs here are bringing a facial challenge.

[00:21:41] Speaker 02:
That means under Salerno that they must show that in each and every application, that statute is unconstitutional.

[00:21:48] Speaker 02:
That's simply implausible.

[00:21:50] Speaker 02:
Again, Title IX authorizes the very statute Idaho enacted here.

[00:21:54] Speaker 02:
Idaho not only did its best to protect all of its students privacy interests, but as well offered an accommodation to anyone who didn't feel comfortable using the boys and girls spaces.

[00:22:06] Speaker 02:
There's no question that the statute satisfies Salerno and plaintiff's claims must fall on that basis alone.

[00:22:15] Speaker 02:
In addition, even if this court looks at the as applied claims, there's simply no allegations sufficient for any of the claims to meet this court's as applied challenge standard.

[00:22:27] Speaker 02:
Of course, we agree.

[00:22:30] Speaker 01:
Council, let's say there had been a different claim before us.

[00:22:39] Speaker 01:
Let's say the claim had been that Rebecca Rowe is going to be fundamentally harmed by the use of this statute

[00:22:53] Speaker 01:
in the new school that they're going to be attending and that there was going to be irreparable harm to Rebecca Rowe from the application of this statute in that school.

[00:23:09] Speaker 01:
Would Idaho's arguments be exactly the same in response to that?

[00:23:14] Speaker 01:
in terms of the privacy, the law, et cetera, even if we were looking at one student in one application, as opposed to the whole state?

[00:23:27] Speaker 01:
Would Idaho be saying, no, these privacy interests that we're in general advancing bar that claim on the merits?

[00:23:36] Speaker 02:
So we agree, Your Honor, that would be a tougher claim because, of course, under a facial challenge, plaintiffs bear the burden under Salerno.

[00:23:44] Speaker 02:
But even with respect to that sort of as applied challenge, which plaintiffs have not brought, we do think that the statute at issue here makes distinctions not based on transgender status, but consistent with long standing practice divides intimate spaces into a boys and girls spaces based on

[00:24:04] Speaker 02:
biological or sex assigned at birth.

[00:24:07] Speaker 02:
Given that, Your Honor, as this court said in Hecox, as it said in Byrd, as the Supreme Court said in Virginia Military Institute, as well as Nugent versus INS, there are important privacy interests in shielding one's body from the eyes of the opposite sex, and we think that would apply in each and every case

[00:24:25] Speaker 02:
to which SB 1100 applies.

[00:24:28] Speaker 02:
But again, an as applied challenge might be tougher, but it's simply not presented here.

[00:24:32] Speaker 01:
Counsel, I apologize for not knowing the answer to this question, but is there anything about the procedural posture of this case which would prevent plaintiff from making that argument or bringing a new type of preliminary injunction motion if we were to affirm the decision of the district court here?

[00:24:55] Speaker 02:
So I think it was absolutely within plaintiff's purview to bring that sort of challenge.

[00:25:00] Speaker 01:
No, no, no.

[00:25:01] Speaker 01:
I'm saying, is there anything now?

[00:25:03] Speaker 01:
The case is still pending?

[00:25:06] Speaker 02:
That's correct, Your Honor.

[00:25:06] Speaker 02:
Yes.

[00:25:06] Speaker 01:
Is there anything, to your knowledge, that would prevent plaintiff from, if we were to affirm the denial of the preliminary injunction as sought, that would prevent plaintiff from making that type of as-applied claim in the future in this case?

[00:25:24] Speaker 02:
I don't think so, Your Honor.

[00:25:26] Speaker 02:
I think on the merits, that claim would still fail for reasons that I can explain.

[00:25:31] Speaker 02:
But I don't think that there's anything procedurally that would bar plaintiffs from making that sort of as applied challenge and putting that sort of evidence in the record.

[00:25:42] Speaker 02:
With respect to the merits, though, we think the analysis would be the same.

[00:25:46] Speaker 02:
And the reason being is under intermediate scrutiny.

[00:25:49] Speaker 02:
What's needed is a substantial relationship to an important state interest as Judge Kristen pointed out that there's nothing novel about recognizing a privacy interest in one's most intimate hygiene functions as well as disrobing in front of the opposite sex.

[00:26:05] Speaker 02:
VMI recognizes this.

[00:26:07] Speaker 02:
Bird recognizes this.

[00:26:09] Speaker 02:
Hecox recognizes this.

[00:26:10] Speaker 02:
And in addition, the legislative findings, under which case Turner versus FCC, the Supreme Court says that the legislative findings, even under intermediate scrutiny, are something courts should pay close attention to.

[00:26:23] Speaker 02:
And those legislative findings clearly lay out

[00:26:26] Speaker 02:
the state's important interest in privacy.

[00:26:29] Speaker 04:
Can I stop you there?

[00:26:30] Speaker 04:
Because I'm going to push back on this.

[00:26:32] Speaker 04:
What I recognize is that the state's interest here is preventing embarrassment, shame, and psychological injury, which I think opposing counsels acknowledge, something that falls short of a constitutional injury.

[00:26:44] Speaker 04:
But it seems to me, if that's the state's interest, and I think it is, yes?

[00:26:48] Speaker 04:
Is that correct?

[00:26:49] Speaker 02:
I think that's part of the state's interest, Your Honor.

[00:26:51] Speaker 02:
I think the state's interest is protecting the privacy of all of its public school students.

[00:26:56] Speaker 04:
Okay.

[00:26:58] Speaker 04:
I think that's a slightly different articulation, but I'm not sure it matters for purpose of this next question because it does seem to me that if this claim were an as-applied challenge and

[00:27:06] Speaker 04:
spoke to bathrooms without sweeping in the other facilities that involve disrobing in front of members of the opposite sex, that the analysis would be substantially different.

[00:27:17] Speaker 04:
And I think you're saying it wouldn't be.

[00:27:19] Speaker 04:
Is that right?

[00:27:20] Speaker 02:
So I think there's inherent privacy interest in both.

[00:27:23] Speaker 02:
I absolutely agree that there's privacy interest involved in disrobing or showering before members of the opposite sex, as would be required on a sports team, for example.

[00:27:33] Speaker 02:
But there's also inherent bodily functions in bathrooms that we think are also private.

[00:27:40] Speaker 02:
Bathrooms, of course, are also used to change.

[00:27:43] Speaker 02:
And I think as for plaintiff's suggestion that, you know, just put a curtain up or put a stall door up, you know, divide the urinals, things like that would be appropriate if this case was on a strict scrutiny standard.

[00:27:57] Speaker 02:
But of course, those sorts of gesturing towards things the states might do are impermissible at an intermediate scrutiny.

[00:28:04] Speaker 02:
stage your honor so so we think that intermediate scrutiny is met both for bathrooms as well certainly for things like showers and overnight accommodations.

[00:28:14] Speaker 04:
And you think the analysis doesn't change?

[00:28:16] Speaker 04:
My question was actually whether the analysis changes and I thought that I heard you say in response to Judge Bennett's question you think it does not.

[00:28:23] Speaker 02:
So I think the I think the privacy interest supports of both the state's interest in providing for sex separated bathrooms as well as separated showers and overnight accommodations.

[00:28:37] Speaker 02:
So I think the same interest in protecting the privacy, again, we're talking about adolescent girls who, as the record reflects, the amicus briefs are in dire straits, mental health straits.

[00:28:51] Speaker 02:
And these adolescent girls may be forced to change or shower or use the bathroom next to a biological male.

[00:28:59] Speaker 02:
And those sorts of privacy interests.

[00:29:00] Speaker 04:
You keep sweeping in showering.

[00:29:02] Speaker 04:
And my question, just to be clear, was not that.

[00:29:06] Speaker 04:
Maybe you've answered it the best you can, but it does seem to me to be a significantly different analysis if we were just talking about bathrooms.

[00:29:13] Speaker 04:
So maybe I've made my point and maybe you've answered the question.

[00:29:16] Speaker 02:
So again, Your Honor, I think the privacy interests are the same, but but even if you disagree, I mean, it sounds like you might even if you disagree that the states excuse me plaintiffs challenge here is a facial one.

[00:29:27] Speaker 02:
So under Solano they have to show that each and every application of the statutes unconstitutional that that's simply implausible under under either of these statutes and to talk just a moment about the equal protection.

[00:29:42] Speaker 02:
Excuse me about the title nine challenge.

[00:29:44] Speaker 02:
We do agree.

[00:29:45] Speaker 02:
that the spending clause legislation is especially relevant here.

[00:29:49] Speaker 02:
As your honors pointed out in 1972, there is nothing to indicate that Congress intended a law that was supposed to advance and promote women's interests

[00:29:59] Speaker 02:
in academic and sports to mean.

[00:30:02] Speaker 02:
And the government's theory under the new Title IX regulations, plaintiff's theory in this case, let's be absolutely clear, it is absolutely limitless.

[00:30:11] Speaker 02:
It means that the NCAA's rules regarding testosterone testing, regarding its sport by sport analysis, those would fall.

[00:30:18] Speaker 02:
In addition, it would mean that it's soccer, it would mean swimming, it would mean sororities, all of those sorts of things that are traditionally reserved for women and girls would be open in addition to intimate spaces like those that issue under Idaho's law.

[00:30:37] Speaker 02:
It's clear that the text, structure, and history of Title IX is all against that interpretation.

[00:30:42] Speaker 02:
With respect to the text, as was mentioned, Section 1686 expressly carves out living facilities.

[00:30:50] Speaker 02:
In addition, if you look at 1681A6, that provision includes things like sororities and Girl Scouts.

[00:30:57] Speaker 02:
Again, things that wouldn't make sense if the definition of sex was fluid, Your Honors.

[00:31:03] Speaker 02:
It clearly contemplates that in order to advance women's interest in academic and sports,

[00:31:08] Speaker 02:
Congress recognized, as Justice Ginsburg eloquently said, that there are times when the Constitution and Title IX not only permit but also require separation based on sex.

[00:31:20] Speaker 02:
So we think that neither the Title VII claim nor the Equal Protection Claim

[00:31:26] Speaker 02:
gets off the ground in this case for both of those reasons.

[00:31:32] Speaker 02:
And I would also just point your honors to the district court's careful opinion in this case.

[00:31:37] Speaker 02:
Again, this was the same district court that decided the Hecox decision.

[00:31:42] Speaker 02:
In Hecox, the court came out against the state of Idaho.

[00:31:46] Speaker 02:
In this decision, the court held for the state of Idaho, and on the equal protection grounds, the reason the court found for Idaho was it acknowledged that there's a long-standing privacy interest in intimate spaces, and it also acknowledged that there's, quote, no doubt that SB 1100 substantially advances the state's interest because bathrooms, locker rooms, overnight accommodations

[00:32:10] Speaker 02:
are the places where it's most likely that students would find other students in a partial or full state of undress.

[00:32:19] Speaker 02:
With respect to Title IX, the district court rejected the very same argument made by the government in the new Title IX regulations.

[00:32:27] Speaker 02:
It looked at the text of the statute and it said that simply something that Congress would not have countenanced in 1972.

[00:32:35] Speaker 02:
And I think another thing that's important to realize here, both about the way the statute operates and with respect to the district court opinion, is the statute differentiates based on sex.

[00:32:47] Speaker 02:
It does not differentiate based on transgender status, as plaintiffs would have you believe.

[00:32:52] Speaker 02:
As the district court found, and this is at ER 20, there simply was, quote, no animus on the state of Idaho

[00:32:59] Speaker 02:
in enacting SB 1100.

[00:33:02] Speaker 02:
Instead, what the court did was separate based on sex in order to advance the state's long-standing privacy interest.

[00:33:10] Speaker 02:
Indeed, the district court, again, this is the same district court that decided Hecox, the district court went on to sort of chide plaintiffs in this case and say, you know, plaintiffs lob a lot of accusations at the state of Idaho.

[00:33:24] Speaker 02:
But the court said that, read in context, it was clear that those statements did not demonstrate any animus, that people on both sides of this policy issue can disagree, but that the state of Idaho did its best in seeking to protect the interests of- I'm gonna push back on that.

[00:33:41] Speaker 03:
Isn't it true that the only students actually affected by SB 1100 are transgender students?

[00:33:51] Speaker 02:
No, Your Honor, that's absolutely incorrect.

[00:33:53] Speaker 02:
The statute separates out biological men and biological females.

[00:33:56] Speaker 03:
That means... Right, but it's the only change to anybody is to transgender students.

[00:34:02] Speaker 02:
That's not correct, Your Honor, because the statute before, due to confusion over the Dear Colleague letter, which was issued in 2009, school districts in Idaho had done different things.

[00:34:16] Speaker 03:
But the statute... No, I think the record says that 25% of the schools in Idaho had inclusive policies and 75% had no policies at all.

[00:34:28] Speaker 02:
So that's correct, Your Honor, but what the record goes on to reflect is that those 75 percent, it was testified that those 75 percent generally separated into male and female restrooms, consistent with long-standing tradition and policy.

[00:34:44] Speaker 03:
Right, but they allowed transgender students to use the restrooms consistent with their gender identity.

[00:34:51] Speaker 02:
No, ma'am, I don't think that's correct.

[00:34:53] Speaker 02:
If you look at the record, 25% of schools did that, but not the other 75%.

[00:34:57] Speaker 02:
They didn't have a formal policy, but they generally- They didn't have a policy.

[00:35:02] Speaker 03:
I think Judge Nye chastised the government in a footnote for misrepresenting the policy of the other 75% of the schools.

[00:35:13] Speaker 02:
So I think there was a declaration, Your Honor, that was misinterpreted.

[00:35:18] Speaker 02:
But what I'm saying here is accurate.

[00:35:19] Speaker 02:
There was 25% that had inclusive policies.

[00:35:22] Speaker 02:
The other 75% did not have a policy in place.

[00:35:26] Speaker 02:
But it was testified that generally those schools did separate based on sex, on male and females.

[00:35:33] Speaker 02:
In addition, your honor, and putting all that to one side, what SB 1100 does is it separates based on sex.

[00:35:41] Speaker 02:
So it applies in the mind run of cases to students who are not transgender to the extent plaintiffs seek to carve out

[00:35:50] Speaker 02:
those affected as being transgender students, that is a disparate impact claim under which they must prove animus.

[00:35:58] Speaker 02:
Again, the district court's factual conclusions at ER 20 are not clearly erroneous.

[00:36:04] Speaker 02:
In fact, the district court found there was no animus.

[00:36:07] Speaker 02:
And for plaintiffs to sort of suggest that the Equal Protection Clause analysis turns on those who are affected on plaintiffs,

[00:36:16] Speaker 02:
that that sort of definitional ploy would turn the Equal Protection Clause into a plaintiffs always win type of theory.

[00:36:23] Speaker 02:
That's why disparate impact under the Equal Protection Clause requires animus.

[00:36:28] Speaker 02:
That animus under the District Court factual findings is lacking here.

[00:36:31] Speaker 02:
What Idaho did was do its best.

[00:36:35] Speaker 03:
I can recite to you several things that would lead to the conclusion that some of this was protectual.

[00:36:42] Speaker 03:
For example, Senator Chris Tracal attended a school board meeting in 2023 where he said, you under Idaho law are required to maintain the morals and the health of all students.

[00:36:54] Speaker 03:
And thereafter, Senator Cindy Carlson wrote that we need to send the message that we want to educate the kids of Idaho, not indoctrinate them with this garbage.

[00:37:03] Speaker 03:
And the fact that SB 1100 itself was drafted by the Idaho Family Policy Center,

[00:37:10] Speaker 03:
whose mission is to promote God honoring public policy and biblical truths and sexuality and gender.

[00:37:17] Speaker 03:
And then we have Senator Trackel again saying the Idaho Republican Party recognizes that children are a heritage of the Lord.

[00:37:23] Speaker 03:
We believe biological gender to be an essential characteristic of a child's identity and purpose.

[00:37:28] Speaker 03:
And I can go on with the statements that were made by the various legislators who enacted this law.

[00:37:36] Speaker 02:
So many of those statements, Your Honor, were outside the legislative context.

[00:37:40] Speaker 02:
But regardless, the district court looked at all of those statements in this case.

[00:37:44] Speaker 02:
And again, he sort of chided the other side and said, despite the repeated arguments that plaintiffs make impugning the integrity and motives of the Idaho legislature, they had, quote, no animus.

[00:37:57] Speaker 03:
I read that section of the opinion with interest, especially what Judge Neistat says that

[00:38:05] Speaker 03:
The court receives enough hate mail and hate calls to know that there are people on both sides of the equation who do not have respect for the other side.

[00:38:13] Speaker 03:
And it caused me to wonder, since this is the same judge that wrote Hecox, is he receiving a lot of threats and hate messages because of his rulings in some of these cases?

[00:38:26] Speaker 02:
So I think the import of that part of the opinion, Your Honor, and I can't speak to the judge's sort of motives for writing it, but I think if you look at his words, what he's saying is that there are reasonable people on both sides of this policy issue and that his lane was to follow the law that neither the Equal Protection Clause nor Title IX prohibited Idaho from separating intimate spaces.

[00:38:51] Speaker 02:
Again, what we're talking about showers as I was

[00:38:53] Speaker 02:
discussing with Judge Kristen, as well as bathrooms.

[00:38:57] Speaker 02:
And these have from time immemorial been separated based on sex.

[00:39:01] Speaker 02:
And the district court goes on.

[00:39:02] Speaker 02:
Again, I point, Your Honor, to ER 20, where Judge Nye is clear that there was, quote, no animus.

[00:39:09] Speaker 02:
In Hecox, this court deferred to the very same findings at the very same stage by the very same district court judge.

[00:39:17] Speaker 02:
I don't think they're clearly eroded here.

[00:39:20] Speaker 02:
And so I think that animus standing

[00:39:22] Speaker 02:
and must be deferred to under this course precedent.

[00:39:25] Speaker 04:
I do have one more question because I think your answer here might differ from what I understood from your briefing about the extent to which the status quo changes here and how this case may be different from Heacock's.

[00:39:36] Speaker 04:
And as Judge Wardlot acknowledged, the Heacock's opinion has been withdrawn at the moment, but you've invoked it several times.

[00:39:43] Speaker 04:
And it is the same district court judge.

[00:39:45] Speaker 04:
And in that case, there was an analysis that explained

[00:39:49] Speaker 04:
The status quo and how it changed only for transgender students, and I understood from your briefing that your position was that this statute that we're talking about in this case changed the status quo for everybody because it also required upon request gender-neutral bathrooms and facilities.

[00:40:09] Speaker 04:
But I don't know if you're abandoning that or changing that or if I misunderstood that.

[00:40:12] Speaker 04:
I didn't hear you mention that in response to Judge Wardlaw's question.

[00:40:16] Speaker 02:
Absolutely not, Your Honor.

[00:40:19] Speaker 02:
We are not abandoning that.

[00:40:20] Speaker 02:
I agree completely that Idaho did its best here to not only provide for the privacy, but also to give an accommodation.

[00:40:27] Speaker 02:
And it's possible that some of the past accommodations made and mentioned in the declarations wouldn't have satisfied SB 1100.

[00:40:36] Speaker 02:
SB 1100 is clear that upon request, any student must be given an accommodation, whether it's for an overnight accommodation, whether it's a bathroom, whether it's a changing facility.

[00:40:46] Speaker 02:
Again, Idaho has done its best to accommodate the privacy interests of all of its students, including those who identify as transgender.

[00:40:55] Speaker 03:
Thank you.

[00:40:56] Speaker 03:
All right.

[00:40:56] Speaker 03:
You're over your time.

[00:40:57] Speaker 03:
Any further questions?

[00:40:58] Speaker 03:
No.

[00:40:59] Speaker 03:
No.

[00:40:59] Speaker 03:
Okay.

[00:40:59] Speaker 03:
Thank you very much, Council.

[00:41:01] Speaker 03:
Okay.

[00:41:01] Speaker 03:
Mr. Wren, you had some time left.

[00:41:08] Speaker 00:
The government's argument that this law is justified in order to prevent students, cisgender students to be cleared from feeling embarrassment, shame, or stress, things of that nature, rely entirely on speculation because there is not one piece of evidence in the record that shows that any cisgender student in Idaho actually objects to sharing a facility with a transgender student.

[00:41:29] Speaker 00:
And that's critical under heightened scrutiny, where speculation, hypothesis is not enough.

[00:41:34] Speaker 00:
The government has to come forward with evidence.

[00:41:36] Speaker 00:
And so even if you take the lion and bird about exposure at face value, we have no evidence here to substantiate that those are borne out in the facts on the ground in Idaho.

[00:41:48] Speaker 00:
And even if they were,

[00:41:50] Speaker 00:
The point would remain that those students who object to sharing spaces with transgender students have an accommodation available to them under the law, which is that they can go to an alternate facility.

[00:42:00] Speaker 00:
And those are very different harms, to be clear, because that is something that accommodates their desire for additional privacy, whereas what the government is suggesting happens to transgender students is that they be shunted off to other facilities that are totally stigmatizing to forcibly use

[00:42:18] Speaker 00:
That is a type of burden that the discord is repeatedly recognized as a significant one of constitutional magnitude.

[00:42:25] Speaker 03:
Before you depart, you're appealing the denial of the motion for preliminary injunction, which you sought a preliminary injunction striking down enforcement of the act in all respects, right?

[00:42:41] Speaker 00:
That is absolutely part of the ask, yes.

[00:42:44] Speaker 03:
That's what you asked for.

[00:42:45] Speaker 03:
Yes.

[00:42:45] Speaker 03:
And that's what was denied.

[00:42:46] Speaker 03:
But the government made a motion to dismiss this case, and the district court judge denied that motion as well.

[00:42:56] Speaker 00:
Yes.

[00:42:57] Speaker 03:
So if we affirm the district court on what he did in this specific case procedurally, what happens next?

[00:43:07] Speaker 00:
The litigation would continue in the district court.

[00:43:09] Speaker 00:
But the problem with that, Your Honor, is that the rationales for why the district court believed that there was, for example, no equal protection violation was that the mere presence of transgender students is a sufficient government interest to warrant the categorical exclusion of transgender students.

[00:43:24] Speaker 00:
The district court adopted the Adams Court reasoning.

[00:43:27] Speaker 03:
Your motion was to all facilities.

[00:43:28] Speaker 03:
And I think you've heard from questioning up here that maybe there is a difference among facilities and among applications.

[00:43:36] Speaker 00:
That's not a difference that the government has substantiated is born out with evidence.

[00:43:43] Speaker 00:
And at a minimum, the relief.

[00:43:45] Speaker 03:
Of course not, yet.

[00:43:47] Speaker 03:
You haven't proceeded with this case.

[00:43:50] Speaker 00:
But under a preliminary injunction, the government's still required to come forward with evidence, Your Honor.

[00:43:55] Speaker 00:
That's their burden, both as non-movements, but also because of heightened scrutiny.

[00:43:59] Speaker 00:
And they haven't introduced a single piece of evidence to support those justifications.

[00:44:03] Speaker 00:
But at a minimum, the relief that plaintiffs sought does include- Because that's not their argument.

[00:44:07] Speaker 03:
They're saying that all these facilities implicate the same privacy interests.

[00:44:14] Speaker 03:
And I think you might have heard from the questioning that some of the

[00:44:19] Speaker 03:
some of the jurists, and certainly if you look at the inter-circuit split that's developing around, for example, bathrooms, that different jurists have different thoughts distinguishing the types of facilities that you are talking about.

[00:44:39] Speaker 00:
I would commend the court to the Seventh Circuit's reasoning in AC, where that court held that locker room use, for example, was indistinguishable from bathroom use, because the same privacy accommodations that would accommodate an objecting student are available exactly the same way in both facilities.

[00:44:53] Speaker 01:
So, counsel, this is not going to be a question, but as you're commending the court to look at various things, I commend you to perhaps listen to what Judge Wardlaw was saying to you.

[00:45:08] Speaker 03:
But thank you, Judge Bennett.

[00:45:10] Speaker 03:
Sometimes it takes a judge to tell another judge to get someone to listen, but.

[00:45:17] Speaker 00:
There are no further questions.

[00:45:18] Speaker 00:
We urge the court to reverse and maintain the status quo.

[00:45:20] Speaker 00:
Thank you.

[00:45:21] Speaker 03:
Thank you very much.

[00:45:22] Speaker 03:
Roe versus Critchfield will be submitted.

[00:45:26] Speaker 03:
We have previously submitted Russell v. Walmart.

[00:45:30] Speaker 03:
And let me just check if there's anything further.

[00:45:33] Speaker 03:
OK.

[00:45:34] Speaker 03:
This session of the court is adjourned for today.

[00:45:36] Speaker 03:
Thank you.

[00:45:48] Speaker 03:
This court for this session stands adjourned.