BOISE, Idaho — Starting with the next school year, all Idaho public schools will be required to maintain bathrooms and changing rooms on the basis of biological sex – the sex a person was assigned at birth – or face possible civil fines.
Gov. Brad Little on March 23 signed an amended version of Senate Bill 1100, now set to become state law on July 1. It allows a person who encounters someone of the opposite sex in a public-school bathroom, locker room or sleeping quarters to sue the school district for $5,000 for each instance. It requires every facility accessible by more than one person at the same time to be designated for “male persons only or female persons only.”
The new law also will pre-empt any ordinance or rule adopted by a city, county or local school district within Idaho "that purports to permit or require public schools to allow persons to use facilities designated for the other sex."
The governor didn’t issue a transmittal letter or other public statement to accompany his signing of the bill, which states that federal legislative actions, federal executive action and federal court judgments that prevent public schools from maintaining separate restrooms and changing facilities are “inconsistent with the United States Constitution and violate the privacy and safety rights of students.”
The bill, drafted by the Idaho Family Policy Center and put forward by Sen. Ben Adams (R-Nampa), states that there are “real and inherent physical differences between men and women,” that every person has a right to privacy and safety in restrooms and changing facilities, and that requiring students to share facilities with “members of the opposite biological sex generates potential embarrassment, shame, and psychological injury… as well as increasing the likelihood of sexual assault, molestation, rape, voyeurism, and exhibitionism…”
The bill doesn’t specifically mention transgender students – those who identify with a gender different from their sex at birth – or those who identify as non-binary or gender-fluid, but during a Senate Education Committee hearing in February, the ACLU, Add The Words Idaho and three people who are transgender argued that it amounts to government-endorsed discrimination.
In House and Senate votes on the final version of the bill, the Senate approved it 28-7 – along party lines; the House approved it by a vote of 59-10-1. According to the roll-call vote posted on the Idaho Legislature’s website, one Democratic House member, Rep. Steve Berch of Boise’s 15th District, voted in favor.
SB 1100 includes requirements for “reasonable accommodations” for any student unwilling or unable to use a multi-occupancy bathroom or changing room. The request for such accommodation must be provided to the school in writing, and the accommodation does not include a facility “designated for use by members of the opposite sex while persons of the opposite sex are present or could be present.”
Other exemptions include the following:
- Single-occupancy restrooms and changing facilities, or facilities designated for unisex or family use.
- Facilities temporarily designated for use by that person’s biological sex
- If a single-sex facility is the only facility reasonably available at the time of a person’s use of the facility
- A person employed to clean, maintain or inspect a single-sex facility
- A person who enters a facility to render medical assistance
- A person who is in need of assistance, accompanied by a family member, legal guardian, or a designee who is a member of the designated sex for the single-sex restroom or changing facility
- Coaching staff and personnel during athletic events
- During an ongoing natural disaster or emergency, “or when necessary to prevent a serious threat to good order or student safety.”
The bill provides for civil cause of action against a school if the school gave someone permission to use facilities designated for the opposite sex or “failed to take reasonable steps” to prohibit such use.
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