UPDATE: The governor signed this bill on March 22. Original post follows.
Republicans took another step last week toward making the Iowa legislature’s 2023 session the worst ever for LGBTQ people. After letting similar bills die without committee approval as recently as 2021, the GOP fast-tracked legislation this year that prohibits transgender people from using the school restroom or locker room that corresponds to their gender identity.
The Iowa Senate passed the latest “bathroom bill,” Senate File 482, on March 7 in a party-line vote. The Iowa House approved the bill on March 16 by 57 votes to 39, with five Republicans (Chad Ingels, Megan Jones, Brian Lohse, Phil Thompson, and Hans Wilz) joining every Democrat present in opposition.
Governor Kim Reynolds is expected to sign the bill, along with legislation banning gender-affirming health care for minors. At this writing, neither bill has been forwarded to her office.
Iowa’s GOP trifecta won’t have the final word on the subject, however. Transgender plaintiffs have challenged restrictive bathroom policies in several states, and I expect one or more Iowa students to file suit soon after Senate File 482 goes into effect.
During the floor debates in the Iowa House and Senate, lawmakers pointed to key issues courts will consider as they weigh the bill’s stated goal (protecting students’ privacy) against its adverse impact on a specific group (students whose sex listed on a birth certificate does not match their gender identity).
BATHROOM BILL LIKELY TO BE CHALLENGED IN FEDERAL COURT
The Iowa Civil Rights Act has prohibited discrimination on the basis of sexual orientation and gender identity since 2007. So the first section of Senate File 482 amends that code section to state it “shall not be an unfair or discriminatory practice” for schools to designate restrooms or changing areas for “persons of the same biological sex,” and prohibit people from using such facilities that don’t correspond with their biological sex.
Republicans included that carve out because the Iowa Supreme Court unanimously held in 2022 that a state agency unlawfully discriminated against a transgender employee by requiring him to use a separate unisex restroom, rather than the men’s rooms available to other employees.
It’s not the first time Iowa Republicans have amended the civil rights act to enable discrimination against transgender people. The Iowa Supreme Court has not yet ruled on a challenge to a 2019 statute, which was designed to prevent trans Iowans from obtaining Medicaid coverage for gender-affirming surgery.
Senate File 482 applies to all of Iowa’s public and private schools and would go into effect immediately after being signed by the governor. Any multiple occupancy restroom, locker room, changing room, or shower room would be designated for “persons of the same sex,” defined as the person’s biological sex (male or female) “as listed on a person’s official birth certificate” near the time of birth. No person would be allowed to enter such an area that “does not correspond with the person’s sex.”
Changing facilities used for extracurricular activities, or overnight accommodations used by students, would likewise be restricted to persons of the same biological sex.
Students who desire “greater privacy” when using a school restroom or changing area would be able to request an accommodation, with parental consent. But schools would be prohibited from providing any accommodation that allows a person to use a facility “designated for use by students of the opposite sex while students of the opposite sex are present or could be present.”
Instead, acceptable accommodations could include giving the student access to a unisex single-use restroom, or a faculty restroom.
To ensure compliance, Iowa’s bill allows any person to allege a school bathroom violation, then file a complaint with the Attorney General’s office if the school district “does not cure the violation” within three business days. The Attorney General’s office would investigate and file a civil action if necessary. Aggrieved individuals would also be able to take legal action against the school.
Given the uncertainty about how the Iowa Supreme Court would approach these questions, I anticipate that any challenge to the Senate File 482 would be filed in federal court, where lawsuits over similar state laws or school district policies have played out.
FEDERAL COURTS HAVE MOSTLY REJECTED EXCLUSIONARY BATHROOM POLICIES
The U.S. Supreme Court has not decided any case related to school bathroom policies for transgender students. In 2021, the court declined to hear an appeal of Grimm v. Gloucester County School Board, a case originating in Virginia. The school district barred Gavin Grimm from using male facilities at his high school. He was required to use either the girls’ room, a restroom located in the nurse’s office, or a separate single-user restroom.
A U.S. District Court ruled and the Fourth Circuit Court of Appeals affirmed that the Gloucester school board’s policy “violated the Equal Protection Clause of the Fourteenth Amendment and constituted discrimination on the basis of sex,” in violation of the federal policy known as Title IX. Grimm had been harmed “on a practical level,” due to the inconvenient locations of the alternative restrooms. He also endured the “stigma of being forced to use a separate restroom,” which invited scrutiny from other students.
In 2020, the U.S. Supreme Court declined to hear an appeal of a Ninth Circuit Court of Appeals decision in a case where the roles were reversed. The plaintiffs in Parents for Privacy v. Dallas School District objected to an Oregon school district’s policy that allowed transgender students to use restrooms aligning with their gender identity. The parents asserted that the policy violated the privacy of other students and discriminated against those who were not transgender. They also claimed the inclusive bathroom policy intruded on their parenting rights under the Fourteenth Amendment and their religious beliefs, protected by the First Amendment.
A U.S. District Court dismissed that lawsuit, and the Ninth Circuit affirmed the ruling. Sydney Finley summarized the key findings; one important point was that “the Fourteenth Amendment’s right to privacy does not encompass the right of non-transgender individuals to avoid all risk of intimate exposure to transgender individuals whose sex assigned at birth is different from theirs.”
The Seventh Circuit Court of Appeals ruled in 2017 in favor of Ash Whitaker, a transgender high school student who filed the case known as Whitaker v. Kenosha Unified School District. Although that Wisconsin school district had no written bathroom policy, officials “did not permit Ash to enter the boys’ restroom because, it believed, that his mere presence would invade the privacy rights of his male classmates.” Rather, they told Ash he could use a gender-neutral restroom in an office, which was off-limits for other students. Later, they offered him a key to single-user restrooms on the opposite side of campus.
The appeals court upheld an injunction blocking that policy, on the grounds that transgender students are protected from discrimination under Title IX and the Equal Protection Clause.
A U.S. District Court in Pennsylvania ruled in favor of three transgender students in a 2017 case known as Evancho et al v. Pine-Richland School District. The students had been using restrooms that aligned with their gender identities until a school board resolution gave them two options: a single-user restroom, or the multiple-user restrooms that corresponded to their gender assigned at birth. They sued, charging violations under Title IX and the Equal Protection clause of the Fourteenth Amendment.
The court determined the plaintiffs were likely to succeed on their Equal Protection claim, because the policy singled out the transgender students for differential treatment, and the school district was unable to show any “exceedingly persuasive justification […] that is substantially related to an important government interest.” The school district claimed it was trying to protect the privacy of all students, but the restrictive bathroom policy does “little to address any actual privacy concern of any student that is not already well addressed by the physical layout of the bathrooms.”
Iowa Republicans are pinning their hopes on a recent decision by the Eleventh Circuit Court of Appeals in Adams v. School Board of St. Johns County. A U.S. District Court and a three-judge appeals court panel had found a Florida school district’s bathroom policy violated the constitutional rights of a transgender student.
But in December 2022, a 7-4 ruling by the full circuit court found the St. Johns policy “does not unlawfully discriminate on the basis of biological sex.” The reasoning was that the policy “facially classifies based on biological sex—not transgender status or gender identity. Transgender status and gender identity are wholly absent from the bathroom policy’s classification.”
In the same opinion, the Eleventh Circuit majority determined the district’s policy did not violate Title IX, because the school board “provided separate bathrooms for each of the biological sexes. And to accommodate transgender students, the School Board has provided single-stall, sex-neutral bathrooms, which Title IX neither requires nor prohibits.”
The Eighth Circuit Court of Appeals, which includes Iowa, has not ruled on a case involving restrictions on transgender people’s use of bathrooms. Given the disagreement among other circuit courts, the U.S. Supreme Court may take up this issue before a challenge to Iowa’s forthcoming law reaches the Eighth Circuit.
Iowa lawmakers on both sides of the issue sought to lay the groundwork for future litigation.
“YOU JUST SINGLE OUT KIDS”
To prove an equal protection violation, plaintiffs challenging Senate File 482 would need to show the law treats certain students differently from others. A Title IX violation would occur if a school subjected students to different rules or treatment based on their gender non-conformance.
The Republican floor managers, State Senator Cherielynn Westrich and State Representative Steven Holt, depicted the legislation as subjecting everyone to the same requirement: use the facilities that correspond to your sex assigned at birth.
Iowa House Minority Leader Jennifer Konfrst characterized the bill as “state-sponsored bullying” of transgender kids. Democratic State Representative Sharon Steckman, who is a former fifth grade teacher, explained how the bill would put teachers in difficult situations.
A student who’s transitioned socially at school may have been using the girls’ room for years. Now the teacher would have “tell this poor child they’ve got to walk in with their dress on into the boys’ bathroom.”
Highlighting one absurd angle of this year’s wide-ranging Republican attacks on LGBTQ Iowans, Steckman noted that if other kids asked why “Susie” is using the boy’s bathroom, the teacher would be stuck. A different bill Iowa House Republicans approved in early March would prohibit any instruction on sexual orientation or gender identity in grades K-6.
So how would she explain and enforce a bathroom bill? “You don’t. You just single out kids and make them feel like—something.”
In this clip, Democratic State Senator Claire Celsi argued that the bill would put Iowa school districts in conflict with federal guidance on Title IX. The Biden administration has interpreted that law as requiring schools to accommodate transgender students.
Celsi noted that during the subcommittee meeting on the bill, lobbyists for education organizations had expressed concern that the legislature could be forcing districts to choose between violating state or federal law.
Westrich cited the recent Eleventh Circuit ruling, which said the Florida school district’s policy did not violate Title IX. Westrich contended that since the Eighth Circuit has not dealt with this issue, Iowa’s prospective law should be presumed constitutional unless proven otherwise. Celsi noted that other federal appeals courts have ruled differently on the issue.
“PLEASE DO NOT DO THIS TO THEM”
To persuade a court to block Senate File 482 from being enforced pending litigation, plaintiffs would need to show they are likely to succeed on the merits of case, and they would suffer “irreparable harm” in the absence of an injunction.
The plaintiffs in other lawsuits presented evidence that school bathroom policies had caused anxiety or depression. Some had suffered from urinary tract infections or other medical problems because they restricted fluids to avoid having to use the restroom at school. Some had experienced suicidal thoughts. (A large body of research has shown LGBTQ people are more likely to consider suicide after facing discrimination and rejection. LGBTQ youth are less likely to attempt suicide if they live in an accepting community.)
Several Democratic lawmakers underscored the damage done by bills targeting trans Iowans. State Representative Elinor Levin, who is part of the queer community herself, asked House members to put themselves in the place of a transgender student.
Imagine spending a large part of your life “knowing that the world does not see you the way that you see yourself.” After confiding in trusted people, you are finally able to be open and focus on school rather than “the conflict between your body and your soul.”
But using the bathroom is still stressful. “Kids can be mean,” calling names or worse. “You try holding it in, but you have to pee sometimes.” All you want to do is be left alone to pee and get back to class.
The school may offer you another single-use restroom in the office, but that’s far from your classroom. “You just want to pee like everyone else.” You don’t want to upset people or hurt anyone.
Over time, classmates lose interest, and using the bathroom becomes close to routine. Then you hear that people like you are supposedly causing a problem, putting your classmates at risk somehow. “The names and taunts start again,” now not just from kids, but also from adults. You hear rumors that you will have to use a bathroom where you don’t feel safe, or adults may stand outside monitoring the situation.
“It’s scary, and once again just peeing weighs on your mind all day long. That’s where Iowa’s trans kids are today, and it’s entirely our fault,” Levin said. While some push a false narrative about safety, the reality is that trans kids face harassment or even violence. “I am asking you personally: please do not do this to them.”
Democratic State Representative Beth Wessel-Kroeschell (who floor managed the bill that added gender identity to the Iowa Civil Rights Act) pointed out that transgender children are already using bathrooms that align with their gender identity every day. She said she knows of one young child who has socially transitioned at school, and her classmates are not aware that she was assigned male at birth. This bill would “force her out,” before she is ready to tell friends and neighbors. “That is wrong. It is so wrong.”
State Senator Liz Bennett, who was the first out queer woman elected to the Iowa Senate, spoke more broadly about the harm done by this bill, which she said should be called “an act establishing the Iowa potty police,” or the “bathroom bullies bill.”
Bennett said this bill would be dangerous not only for transgender kids, “but for any kids who might not look how others think a boy or girl should look.” It empowers a new “potty police” and will enable bullying by classmates.
The concept behind this bill is “not new, and it’s not about safety or privacy,” Bennett argued. It’s another example of a long line of efforts to “use fear and violence to force people into gender roles assigned by society.” Women who appear masculine or “butch” can tell stories about being treated aggressively for being in the “wrong bathroom.”
Whereas “There have been exactly zero cases of a trans person hurting another person in a restroom,” Bennett reminded colleagues that hundreds of trans women are murdered every year. Perhaps the intent of the bill isn’t hostile, “but the impact certainly is.”
Bennett pointed out that the bill would also affect transgender parents who attend school activities. (For instance, a transgender man would be required to use a girls’ restroom while attending a performance at his child’s school.)
In a statement provided before the bathroom bill received final legislative approval, Lambda Legal Senior Attorney Kara Ingelhart told Bleeding Heartland,
Legislation designed to exclude transgender and nonbinary students from sex-segregated spaces at school are not only unlawful and unconstitutional, but the mere fact of lawmakers debating the rights of young people from equally accessing school accommodations impacts the well-being and health of trans and nonbinary students and allies.
Inclusion is important for all school-aged young people, especially LGBTQ youth who are at disproportionate risk for bullying, harassment, and mental health issues.
STATE CLAIMS BILL PROTECTS “THE SAFETY AND PRIVACY OF OUR CHILDREN”
Sex discrimination lawsuits are typically resolved using a legal framework known as “intermediate scrutiny.” As the Fourth Circuit explained in Grimm, “heightened scrutiny applies to Grimm’s claim because the bathroom policy rests on sex-based classifications”—just like Iowa’s bill—”and because transgender people constitute at least a quasi-suspect class.”
To defend Iowa’s prospective law, the state would need to show it has some “important governmental objective,” and that school bathroom restrictions are “substantially related” to that objective.
So Holt repeatedly claimed the bill was about privacy, and said unspecified incidents at unnamed school districts supported his contention. This clip shows part of his opening remarks on the amendment House Republicans adopted to match the Senate-approved bill.
My partial transcript:
This legislation is about ensuring the safety and privacy of our children. For many decades, schools have separated locker rooms and bathrooms by biological sex. It’s a simple policy that has existed for good reason: so that students can be safe and their privacy can be respected as they use the restroom or change their clothes in locker rooms. It is essential that schools continue to provide that safe, private space for children.
Holt said he empathized with children who do not feel comfortable using the bathroom that corresponds to their “biological sex” (that is, their sex assigned at birth). He said schools should accommodate those children, but that shouldn’t be done “at the expense of the privacy and safety of our daughters.” He repeated that the goal was to respect all children’s privacy at school.
Democrats emphasized that this bill was not offered in response to any real safety problems. Wessel-Kroeschell recalled that during the subcommittee on this bill, the people advocating for bathroom restrictions couldn’t recount any negative experience their children had had in a school restroom. Instead, they said they had asked their kids how they would feel if they encountered a transgender person in a bathroom, and the students said they would feel “uncomfortable.”
Wessel-Kroeschell called for prioritizing “the safety of all children over the hypothetical discomfort of a few.”
In this clip, Democratic Representative Austin Baeth said he’d heard a lot of talk about people possibly feeling uncomfortable. He asked Holt whether he could cite any reported incidents or criminal cases in Iowa related to current policy allowing people to use bathrooms that align with their gender identity.
Holt claimed he knows of at least six school districts (which he would not name) and “countless parents” who have expressed concern. He added that his mother used to say, “an ounce of prevention is worth a pound of cure. I’m not interested in waiting until a child is raped in a restroom by someone pretending to be transgender.”
That prompted House Minority Leader Jennifer Konfrst to call a point of order. Holt had previously stated the bill was about protecting students’ privacy. “We are not talking about people pretending to be another gender and raping students in the restroom.” (House Speaker Pat Grassley ruled the point of order well-taken.)
A few minutes later, Baeth commented that he might understand the legislation if there were any evidence that school bathrooms were being misused in Iowa. “But inventing these horror scenarios of a bad person going into a bathroom—it might be an effective tool of fear mongering, but it doesn’t reflect reality.”
Holt sounded angry as he delivered his closing comments in support of Senate File 482. He accused Democrats of trying to minimize and trivialize legitimate concerns by saying kids “just need to pee.”
He assured the body that nothing in the bill “prevents anyone from peeing.” Attempting to cast conservatives as the victims in this controversy, he said, “You know, I’ve heard a lot about the feelings of those who are transgender, and this bill tries to be sensitive to those feelings.”
But what about the legitimate concerns, safety concerns, and privacy concerns, of our daughters, who don’t want to change clothes in front of a biological male? Or our young men, who don’t want to change clothes in front of females? This isn’t about peeing, ladies and gentlemen.
Holt said the U.S. has segregated bathrooms by biology since 1887. The people supporting the bill “did not move the goalposts.” It was understood until recently that restrooms should be separated according to biology. He claimed the bill “really tries hard to address the concerns on both sides of this issue.”
Again, Holt insisted the bill was about protecting children’s safety. He also claimed many schools wanted the state to clarify the matter, saying he had recently met with superintendents who were “begging for guidance.”
The lobbyist declarations show that every mainstream education organization was registered against Senate File 482, including the Iowa Association of School Boards, the School Administrators of Iowa, Rural School Advocates of Iowa, the Urban Education Network of Iowa, and the Iowa State Education Association. Major medical and public health association were also united in opposition.
Holt declined to name school districts that had problems related to bathroom use, but said there had been an issue related to a show choir. He later told the Des Moines Register he was alluding to a 2016 show choir incident in Fairfield. But as Courtney Crowder reported at the time, the transgender student who stayed in a room with other boys overnight during a show choir trip was not the aggressor. On the contrary: that student’s car was vandalized after the trip.
At another unidentified school, Holt asserted, young men were trying to take advantage of the bathroom policy, because “they thought it was a big joke.” He did not explain why the legislature would respond to that alleged behavior by punishing every transgender student in Iowa, as opposed to letting the school in question discipline the perpetrators.
As mentioned above, the Eighth Circuit has not ruled on this issue. They (or the U.S. Supreme Court, if a bathroom policy case reaches them first) may agree with the Seventh Circuit, which found the Wisconsin school’s policy stigmatized and punished a transgender student for non-conformity. “Providing a gender‐neutral alternative is not sufficient to relieve the School District from liability, as it is the policy itself which violates” Title IX. The Seventh Circuit also found the school district’s stated concerns were “all speculative and based upon conjecture,” whereas the harms to the transgender student “are well‐documented and supported by the record.”
In the Grimm case from Virginia, the Fourth Circuit held,
The Board does not present any evidence that a transgender student, let alone Grimm, is likely to be a peeping tom, rather than minding their own business like any other student. Put another way, the record demonstrates that bodily privacy of cisgender boys using the boys restrooms did not increase when Grimm was banned from those restrooms. Therefore, the Board’s policy was not substantially related to its purported goal.
Alternatively, they may follow the logic of the Eleventh Circuit, which held that a similar policy in Florida can survive “intermediate scrutiny” because it “advances the important governmental objective of protecting students’ privacy in school bathrooms and does so in a manner substantially related to that objective.”
Top image: High school students protest anti-LGBTQ bills during a school “walk out” on March 1. Photo provided by Iowa WTF, which organized the walkout at dozens of schools, and published with permission.