BOISE, Idaho — The American Civil Liberties Union has launched a legal challenge against the state of Idaho, taking aim at a newly passed law that it says violates core constitutional protections and threatens to criminalize everyday activities for transgender residents, according to a recent press release.
The ACLU is entering a legal fight with the state of Idaho on behalf of six transgender residents over the Idaho Legislature’s recent passage of House Bill 752 (H.B. 752), arguing that the law violates constitutional rights protected under the Fifth and Fourteenth Amendments, including due process, equal protection and privacy.
According to Kell Olson and F. Curt Kirschner, counsel for the lawsuit and junior strategist for LGBTQ+ Seniors at Lambda Legal, respectively, the law “criminalizes” people for using the restroom that matches their gender identity, even when there is no gender-neutral option. They claim that the law is meant to “erase the very existence of Idaho’s transgender community.”
Research from the National Library of Medicine supports the ACLU’s claims. According to the study, schools that restricted restroom access for LGBTQ+ students had students who “were more likely to experience sexual assault” compared to schools without restrictions. The ACLU stands against these types of restrictions, stating that “transgender Idahoans will not be forced out of public life.”
“This new law doesn’t protect anyone,” said Amelia Milette, a transgender woman and lifelong Idaho resident. She emphasized how H.B. 752 will substantially affect her ability to safely navigate public life.
Finding an available restroom will force her to compromise her “privacy and safety,” causing her to pit “every social activity I participate in against the risk I’ll experience if I need access to a bathroom facility.”
According to Paul Carlos Southwick, legal director for the ACLU of Idaho, H.B. 752 is “an unconstitutional intrusion on the fundamental rights of Idahoans.” “H.B. 752 has a clear discriminatory intent,” which undermines “the basic Idaho value” of people being “left alone in matters of personal privacy” and “invites intrusive stops, questioning, and even detention based on appearance alone.”
Southwick is not alone in his concerns about enforcement. Aside from the constitutional questions the law raises, several residents and officials are worried about how it would be implemented.
Diego Fable, one of the plaintiffs in the lawsuit and a local transgender man, questioned what his alternatives would be. He fears using his assigned-at-birth restroom “would only invite suspicion, questions, and raised eyebrows” that would make going out a source of anxiety.
“Ultimately, complying with this law would be extremely unsafe” for him, leaving his “only safe option” to “just stay home.”
Questions also remain about how law enforcement would apply the law. Representatives of law enforcement, such as the Idaho Fraternal Order of Police and the Idaho Chiefs of Police Association, opposed the legislation due to its invasive nature in the field. According to an article in the Idaho Capital Sun, FOP President Bryan Lovell believes “there is no clear or reasonable way for officers” to determine an accused person’s sex without “invasive and inappropriate” actions.
“This law is a dangerous and discriminatory effort to push transgender people out of public life,” said Barbara Schwabauer, senior staff attorney for the ACLU’s LGBTQ & HIV Rights Project. “If you cannot use the restroom, you can’t go to work, or to school, or travel freely.” H.B. 752 “undermines the freedom” of the ACLU’s clients, and the organization remains committed to “block” the legislation “completely.”
According to the official website of the Idaho Legislature, if the lawsuit is unsuccessful, the legislation will go into effect on July 1, making Idaho one of 12 states with similar laws. The first offense is a misdemeanor charge carrying a possible sentence of less than a year in jail, while additional offenses can lead to up to five years of imprisonment.
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