Transgender rights advocates push back on Idaho Republicans’ school bathrooms bill
Feb. 24, 2023 Updated Fri., Feb. 24, 2023 at 7:16 p.m.
Eve Devitt, 17-year-old transgender teen of Boise, addresses a crowd of more that 300 people on the steps of the Idaho Capitol building opposing anti-transgender legislation, Friday, Feb. 24, 2023, in Boise. (Darin Oswald/Idaho Statesman)
Eve Devitt has protested anti-transgender policies from Idaho Republicans for the last three years, the same period she’s used medication to aid her gender transition.
Standing on the Capitol steps Friday in Boise, the 17-year-old denounced one of the latest proposals, which may push her out of the state.
“I love Boise and have lived here my whole life,” Devitt said, as hundreds rallied to protest a pair of new bills targeting transgender health care and bathroom access. The Access Coalition Taskforce, a group of Idaho nonprofits advocating for transgender rights, hosted the event. “I’ve always seen Boise as a safe space, a safe haven away from the bigotry and hate of outer Idaho. But legislation like this is trying to take away that safety net.”
A bill that would ban gender-affirming health care for transgender minors is moving through the Legislature. Devitt earlier this month told a legislative committee that taking estrogen for the last three years has improved her mental health, and hormone therapy helped save her life. She’s now seeking consultation about transition-related surgery.
The legislation, from Rep. Bruce Skaug, R-Nampa, would make it a felony for Idaho doctors to provide puberty blockers, hormone therapies and transition-related surgeries to minors.
Bill would require separate bathrooms for trans students
A second bill, which cleared a Senate committee on a party-line vote Thursday, would allow students to sue their school if they encounter a student using a bathroom that doesn’t align with their sex at birth.
Sponsored by Sen. Ben Adams, R-Nampa, and the Idaho Family Policy Center, a religious lobbying group, the new restroom bill comes as Idaho school boards mull best practices for addressing students’ gender identity and sexual orientation.
“This is a hot-button issue for a lot of people,” Adams told the Senate Education Committee on Thursday. “That’s why this legislation is here. Imagine being a school superintendent or a school administrator and having this on your plate every day.”
The bill would require that public schools maintain male and female multi-use restrooms accessible to students based on their sex as “genetically determined at conception.” It would also direct schools to offer separate restroom accommodations for transgender students.
The policy would apply to locker rooms, showers, dressing areas and overnight accommodations. A student encountering a transgender person in one of the listed rooms could sue the school for $5,000, if school officials “failed to take reasonable steps to prohibit that person from using” the facility, according to the bill.
Most of the public testimony supported the legislation and centered on fears that transgender students would violate the privacy of other students if they were allowed to use restrooms that align with their gender identity. Others said they fear transgender students would harm other students in bathrooms.
A handful of Idaho residents who said they’re transgender vehemently opposed the bill. Emilia Connelly, who’s transgender, expected to face harm after moving to Idaho. Instead, Connelly has found “almost complete acceptance,” including from a co-worker who offers daily reminders to take estrogen.
“That kind of response doesn’t come from people who are afraid of trans folks,” Connelly said. “This Legislature is acting as though we are a threat.”
Both Democrats on the committee opposed the bill. Sen. Janie Ward-Engelking, D-Boise, asked about the verification process for someone’s sex and said schools’ liability insurance would be more expensive under the threat of lawsuits over the proposed bathroom policy.
Sen. Carrie Semmelroth, D-Boise, asked Adams whether he believes transgender students are people, and if so, why they aren’t awarded equal privacy rights within the bill.
“Everyone that comes into this world … is a biological male or a biological female,” Adams replied. “This legislation gives that privacy to both.”
Is bathroom bill constitutional?
Blaine Conzatti, president of the Idaho Family Policy Center, told the Senate committee that the bill is “deeply rooted in the tradition of Title IX,” the federal civil rights law that prohibits sex-based discrimination in schools. The federal law explicitly allows for separate restrooms and changing facilities for men and women, Conzatti said.
Federal courts have issued conflicting rulings in cases involving similar attempts to ban transgender students from multi-use restrooms.
In 2020, a federal court ruled that a Virginia school board violated Title IX and the equal protection clause of the U.S. Constitution when it blocked a transgender student from using a restroom that aligned with his gender identity.
But late last year, a different federal appeals court upheld a Florida public school policy that barred transgender students from using their preferred bathroom.
“We want schools focusing on teaching students, not on fighting culture war battles,” Conzatti said. “This legislation gives certainty to schools, while also protecting the privacy and safety rights of all students, ensuring that every student can feel safe at school.”
Amy Dundon, of the American Civil Liberties Union of Idaho, said the ACLU is litigating cases against similar policies in other states, and Idaho “will not be able to legitimize” a justification for the proposed law because it singles out transgender students.
Under “heightened equal protection scrutiny,” the state would need to offer “exceedingly persuasive justification,” Dundon said.
“The rationale for the bill rests on hypothetical problems concerning public school restrooms,” Dundon said.
Transgender rights advocates protest legislation
Dr. Marvin Alviso, a Boise-based family physician and member of the LGBTQ community, began the rally by discussing his experience providing gender-affirming care to minors.
Alviso said his first transgender patient was a 15-year-old who was assigned male at birth but identified as female. His patient had moved from Pocatello to Boise to seek puberty blockers.
“They were driven out by lack of community acceptance and provider knowledge that created an unsafe environment for them,” he said. “I watched this scared transgender girl blossom into a confident, intelligent woman who now has a career in modeling.”
Alviso said anti-transgender legislation would further harm the future practice of medicine as Idaho ranks 45th in the nation with physician shortages as of 2020.
“My duty as a physician providing evidence-based gender affirming care is threatened by House Bill 71,” he said. “It will make me a felon to provide this life saving standardized care to patients under 18.”
Dr. Angeline Devitt, a family physician whose transgender daughter also spoke at the rally, said gender-affirming care is necessary to promote mental health among LGBTQ youth.
“In this state, certain legislators care more about our child’s genitalia than they do about her safety, her autonomy, her mental health and her education,” she said. “Legislators, why are you making parenting harder than it already is?”
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