A federal judge seemed skeptical about an Idaho law set to take effect soon that will make it a criminal offense for transgender people to use bathrooms that align with their gender identity.
The law, which is set to take effect July 1, would make the first offense a misdemeanor, with subsequent offenses committed within five years a felony.
ACLU of Idaho lawyer Emily Croston, who represents transgender plaintiffs in the case, said the law is unconstitutionally vague and unenforceable in the real world.
"Are we just going to look at folks as they enter a restroom and determine whether or not we think they look enough like a man or a woman? That's ridiculous," Croston said.
Those behind the lawsuit are asking a federal judge to prevent the law from taking effect, but only as it applies to restrooms. It could still affect who's allowed to use gender-specific changing facilities.
In order to receive a preliminary injunction, the plaintiffs must convince the judge they're likely to win the case based on its merits — not on legal technicalities.
During oral arguments Friday morning, another attorney for the plaintiffs, Kell Olson, pointed out law enforcement lobbying groups testified against the legislation making similar points.
"There will be a moment to moment assessment for that officer," Olson said, noting that individual officers may choose to enforce the law differently.
Without clarity and consistency, he said it puts them in a tough situation.
Idaho District Court Judge Amanda Brailsford repeatedly questioned the state attorney general's office over these points.
Deputy Attorney General Michael Zarian acknowledged it will be tough for law enforcement to determine whether a crime has been committed.
"It might be difficult on the spot for a police officer to decide. But, if anything, that works in the plaintiff's favor," Zarian said, suggesting that fewer people will ultimately be charged.
Brailsford also asked how police will interpret out-of-state identification from states that list a person's gender identity as their given sex.
At some point, Zarian said making these determinations will be "easy" by using DNA testing to find out a person's chromosomal makeup.
State law protects criminal defendants and general citizens alike from being forced to give a DNA sample unless presented with a warrant or if they've previously been convicted of a felony.
Ultimately, if the law goes into effect, Croston said transgender people will likely withdraw from typical, daily activities.
"We know that when folks are not able to access restrooms they stop going in public. They're not able to be in public safely and that impacts the lives of every trans person who is in Idaho."
Brailsford said she will issue a decision on the preliminary injunction "as soon as possible."
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