Text of ID S 1100 (2023)

LEGISLATURE OF THE STATE OF IDAHO Sixty-seventh Legislature First Regular Session - 2023 IN THE SENATE SENATE BILL NO. 1100 BY EDUCATION COMMITTEE AN ACT 1 RELATING TO PROTECTING THE PRIVACY AND SAFETY OF STUDENTS IN PUBLIC SCHOOLS; 2 AMENDING TITLE 33, IDAHO CODE, BY THE ADDITION OF A NEW CHAPTER 66, TITLE 3 33, IDAHO CODE, TO PROVIDE LEGISLATIVE FINDINGS, TO DEFINE TERMS, TO ES- 4 TABLISH PROVISIONS REGARDING SCHOOL RESTROOMS, TO PROVIDE EXEMPTIONS, 5 TO PROVIDE FOR REASONABLE ACCOMMODATION IN CERTAIN INSTANCES, TO PRO- 6 VIDE FOR A CIVIL CAUSE OF ACTION, AND TO PROVIDE FOR PREEMPTION; PROVID- 7 ING SEVERABILITY; AND DECLARING AN EMERGENCY AND PROVIDING AN EFFECTIVE 8 DATE. 9 Be It Enacted by the Legislature of the State of Idaho: 10 SECTION 1. That Title 33, Idaho Code, be, and the same is hereby amended 11 by the addition thereto of a NEW CHAPTER, to be known and designated as Chap- 12 ter 66, Title 33, Idaho Code, and to read as follows: 13 CHAPTER 66 14 PROTECTING THE PRIVACY AND SAFETY OF STUDENTS IN PUBLIC SCHOOLS 15 33-6601. LEGISLATIVE FINDINGS. The legislature finds that: 16 (1) There are real and inherent physical differences between men and 17 women; 18 (2) Every person has a natural right to privacy and safety in restrooms 19 and changing facilities where such person might be in a partial or full state 20 of undress in the presence of others; 21 (3) This natural right especially applies to students using public 22 school restrooms and changing facilities where student privacy and safety is 23 essential to providing a safe learning environment for all students; 24 (4) Requiring students to share restrooms and changing facilities with 25 members of the opposite biological sex generates potential embarrassment, 26 shame, and psychological injury to students, as well as increasing the like- 27 lihood of sexual assault, molestation, rape, voyeurism, and exhibitionism; 28 (5) Providing separate public school restrooms and changing facilities 29 for the different biological sexes is a long-standing and widespread prac- 30 tice protected by federal law, state law, and case law; 31 (6) Federal legislative action, federal executive action, and fed- 32 eral court judgments that prevent public schools from maintaining separate 33 restrooms and changing facilities for different biological sexes are in- 34 consistent with the United States constitution and violate the privacy and 35 safety rights of students; and 36 (7) A statewide policy ensuring separate school restrooms and chang- 37 ing facilities on the basis of biological sex is substantially related to the 38 important governmental interest in protecting the privacy and safety of all 39 students. 40 2 33-6602. DEFINITIONS. For the purposes of this chapter: 1 (1) "Changing facility" means a facility in which a person may be in a 2 state of undress in the presence of others, including a locker room, changing 3 room, or shower room. 4 (2) "Public school" means any public school teaching K-12 students 5 within an Idaho school district or charter school. 6 (3) "Sex" means the immutable biological and physiological character- 7 istics, specifically the chromosomes and internal and external reproductive 8 anatomy, genetically determined at conception and generally recognizable at 9 birth, that define an individual as male or female. 10 33-6603. SCHOOL RESTROOMS. (1) Every public school restroom or chang- 11 ing facility accessible by multiple persons at the same time must be: 12 (a) Designated for use by male persons only or female persons only; and 13 (b) Used only by members of that sex. 14 (2) No person shall enter a multi-occupancy restroom or changing facil- 15 ity that is designated for one sex unless such person is a member of that sex. 16 The public school with authority over the building shall ensure that all re- 17 strooms and changing facilities provide its users with privacy from members 18 of the opposite sex. 19 (3) In any other public school setting where a person may be in a state 20 of undress in the presence of others, school personnel must provide separate 21 and private areas designated for use by persons based on their sex, and no 22 person may enter these private areas unless such person is a member of the 23 designated sex. 24 (4) During any school authorized activity or event where persons share 25 overnight lodging, school personnel must provide separate sleeping quar- 26 ters for members of each sex. No person shall share sleeping quarters, a 27 restroom, or a changing facility with a person of the opposite sex, unless 28 the persons are members of the same family. 29 33-6604. EXEMPTIONS. This chapter shall not apply: 30 (1) To single-occupancy restrooms and changing facilities or restrooms 31 and changing facilities that are conspicuously designated for unisex or fam- 32 ily use; 33 (2) To restrooms and changing facilities that have been temporarily 34 designated for use by that person's biological sex; 35 (3) To a person of one sex who uses a single-sex facility designated for 36 the opposite sex, if such single-sex facility is the only facility reason- 37 ably available at the time of the person's use of the facility; 38 (4) To a person employed to clean, maintain, or inspect a restroom or 39 single-sex facility; 40 (5) To a person who enters a restroom or facility to render medical as- 41 sistance; 42 (6) To a person who is in need of assistance and, for the purposes 43 of receiving that assistance, is accompanied by a family member, a legal 44 guardian, or the person's designee who is a member of the designated sex for 45 the single-sex restroom or changing facility; or 46 (7) During an ongoing natural disaster or emergency, or when necessary 47 to prevent a serious threat to good order or student safety. 48 3 33-6605. REASONABLE ACCOMMODATION. (1) A public school shall provide 1 a reasonable accommodation to a student who: 2 (a) For any reason, is unwilling or unable to use a multi-occupancy re- 3 stroom or changing facility designated for the person's sex and located 4 within a public school building, or multi-occupancy sleeping quarters 5 while attending a public school-sponsored activity; and 6 (b) Provides a written request for reasonable accommodation to the pub- 7 lic school. 8 (2) A reasonable accommodation does not include access to a restroom, 9 changing facility, or sleeping quarter that is designated for use by members 10 of the opposite sex while persons of the opposite sex are present or could be 11 present. 12 33-6606. CIVIL CAUSE OF ACTION. (1) Any student who, while accessing a 13 public school restroom, changing facility, or sleeping quarters designated 14 for use by the student's sex, encounters a person of the opposite sex has a 15 private cause of action against the school if: 16 (a) The school gave that person permission to use facilities of the op- 17 posite sex; or 18 (b) The school failed to take reasonable steps to prohibit that person 19 from using facilities of the opposite sex. 20 (2) Any civil action arising under this chapter must be commenced 21 within four (4) years after the cause of action has occurred. 22 (3) Any student who prevails in an action brought under this chapter may 23 recover from the defendant public school five thousand dollars ($5,000) for 24 each instance that the student encountered a person of the opposite sex while 25 accessing a public school restroom, changing facility, or sleeping quarters 26 designated for use by aggrieved student's sex. The student may also recover 27 monetary damages from the defendant public school for all psychological, 28 emotional, and physical harm suffered. 29 (4) Any student who prevails in action brought under this chapter is en- 30 titled to recover reasonable attorney's fees and costs from the defendant 31 public school. 32 (5) Nothing in this chapter limits other remedies at law or equity 33 available to the aggrieved student against the school. 34 33-6607. PREEMPTION. This chapter preempts any law, regulation, pol- 35 icy, or decree enacted or adopted by any city, county, municipality, or other 36 political subdivision within the state that purports to permit or require 37 public schools to allow persons to use facilities designated for the other 38 sex. 39 SECTION 2. SEVERABILITY. The provisions of this act are hereby declared 40 to be severable and if any provision of this act or the application of such 41 provision to any person or circumstance is declared invalid for any reason, 42 such declaration shall not affect the validity of the remaining portions of 43 this act. 44 SECTION 3. An emergency existing therefor, which emergency is hereby 45 declared to exist, this act shall be in full force and effect on and after 46 July 1, 2023. 47

LEGISLATURE OF THE STATE OF IDAHO Sixty-seventh Legislature First Regular Session - 2023 IN THE SENATE SENATE BILL NO. 1100, As Amended BY EDUCATION COMMITTEE AN ACT 1 RELATING TO PROTECTING THE PRIVACY AND SAFETY OF STUDENTS IN PUBLIC SCHOOLS; 2 AMENDING TITLE 33, IDAHO CODE, BY THE ADDITION OF A NEW CHAPTER 66, TITLE 3 33, IDAHO CODE, TO PROVIDE LEGISLATIVE FINDINGS, TO DEFINE TERMS, TO ES- 4 TABLISH PROVISIONS REGARDING SCHOOL RESTROOMS, TO PROVIDE EXEMPTIONS, 5 TO PROVIDE FOR REASONABLE ACCOMMODATION IN CERTAIN INSTANCES, TO PRO- 6 VIDE FOR A CIVIL CAUSE OF ACTION, AND TO PROVIDE FOR PREEMPTION; PROVID- 7 ING SEVERABILITY; AND DECLARING AN EMERGENCY AND PROVIDING AN EFFECTIVE 8 DATE. 9 Be It Enacted by the Legislature of the State of Idaho: 10 SECTION 1. That Title 33, Idaho Code, be, and the same is hereby amended 11 by the addition thereto of a NEW CHAPTER, to be known and designated as Chap- 12 ter 66, Title 33, Idaho Code, and to read as follows: 13 CHAPTER 66 14 PROTECTING THE PRIVACY AND SAFETY OF STUDENTS IN PUBLIC SCHOOLS 15 33-6601. LEGISLATIVE FINDINGS. The legislature finds that: 16 (1) There are real and inherent physical differences between men and 17 women; 18 (2) Every person has a natural right to privacy and safety in restrooms 19 and changing facilities where such person might be in a partial or full state 20 of undress in the presence of others; 21 (3) This natural right especially applies to students using public 22 school restrooms and changing facilities where student privacy and safety is 23 essential to providing a safe learning environment for all students; 24 (4) Requiring students to share restrooms and changing facilities with 25 members of the opposite biological sex generates potential embarrassment, 26 shame, and psychological injury to students, as well as increasing the like- 27 lihood of sexual assault, molestation, rape, voyeurism, and exhibitionism; 28 (5) Providing separate public school restrooms and changing facilities 29 for the different biological sexes is a long-standing and widespread prac- 30 tice protected by federal law, state law, and case law; 31 (6) Federal legislative action, federal executive action, and fed- 32 eral court judgments that prevent public schools from maintaining separate 33 restrooms and changing facilities for different biological sexes are in- 34 consistent with the United States constitution and violate the privacy and 35 safety rights of students; and 36 (7) A statewide policy ensuring separate school restrooms and chang- 37 ing facilities on the basis of biological sex is substantially related to the 38 important governmental interest in protecting the privacy and safety of all 39 students. 40 2 33-6602. DEFINITIONS. For the purposes of this chapter: 1 (1) "Changing facility" means a facility in which a person may be in a 2 state of undress in the presence of others, including a locker room, changing 3 room, or shower room. 4 (2) "Public school" means any public school teaching K-12 students 5 within an Idaho school district or charter school. 6 (3) "Sex" means the immutable biological and physiological character- 7 istics, specifically the chromosomes and internal and external reproductive 8 anatomy, genetically determined at conception and generally recognizable at 9 birth, that define an individual as male or female. 10 33-6603. SCHOOL RESTROOMS. (1) Every public school restroom or chang- 11 ing facility accessible by multiple persons at the same time must be: 12 (a) Designated for use by male persons only or female persons only; and 13 (b) Used only by members of that sex. 14 (2) No person shall enter a multi-occupancy restroom or changing facil- 15 ity that is designated for one sex unless such person is a member of that sex. 16 The public school with authority over the building shall ensure that all re- 17 strooms and changing facilities provide its users with privacy from members 18 of the opposite sex. 19 (3) In any other public school setting where a person may be in a state 20 of undress in the presence of others, school personnel must provide separate 21 and private areas designated for use by persons based on their sex, and no 22 person may enter these private areas unless such person is a member of the 23 designated sex. 24 (4) During any school authorized activity or event where persons share 25 overnight lodging, school personnel must provide separate sleeping quar- 26 ters for members of each sex. No person shall share sleeping quarters, a 27 restroom, or a changing facility with a person of the opposite sex, unless 28 the persons are members of the same family. 29 33-6604. EXEMPTIONS. This chapter shall not apply: 30 (1) To single-occupancy restrooms and changing facilities or restrooms 31 and changing facilities that are conspicuously designated for unisex or fam- 32 ily use; 33 (2) To restrooms and changing facilities that have been temporarily 34 designated for use by that person's biological sex; 35 (3) To a person of one sex who uses a single-sex facility designated for 36 the opposite sex, if such single-sex facility is the only facility reason- 37 ably available at the time of the person's use of the facility; 38 (4) To a person employed to clean, maintain, or inspect a restroom or 39 single-sex facility; 40 (5) To a person who enters a restroom or facility to render medical as- 41 sistance; 42 (6) To a person who is in need of assistance and, for the purposes 43 of receiving that assistance, is accompanied by a family member, a legal 44 guardian, or the person's designee who is a member of the designated sex for 45 the single-sex restroom or changing facility; 46 (7) To coaching staff and personnel during athletic events; or 47 3 (8) During an ongoing natural disaster or emergency, or when necessary 1 to prevent a serious threat to good order or student safety. 2 33-6605. REASONABLE ACCOMMODATION. (1) A public school shall provide 3 a reasonable accommodation to a student who: 4 (a) For any reason, is unwilling or unable to use a multi-occupancy re- 5 stroom or changing facility designated for the person's sex and located 6 within a public school building, or multi-occupancy sleeping quarters 7 while attending a public school-sponsored activity; and 8 (b) Provides a written request for reasonable accommodation to the pub- 9 lic school. 10 (2) A reasonable accommodation does not include access to a restroom, 11 changing facility, or sleeping quarter that is designated for use by members 12 of the opposite sex while persons of the opposite sex are present or could be 13 present. 14 33-6606. CIVIL CAUSE OF ACTION. (1) Any student who, while accessing a 15 public school restroom, changing facility, or sleeping quarters designated 16 for use by the student's sex, encounters a person of the opposite sex has a 17 private cause of action against the school if: 18 (a) The school gave that person permission to use facilities of the op- 19 posite sex; or 20 (b) The school failed to take reasonable steps to prohibit that person 21 from using facilities of the opposite sex. 22 (2) Any civil action arising under this chapter must be commenced 23 within four (4) years after the cause of action has occurred. 24 (3) Any student who prevails in an action brought under this chapter may 25 recover from the defendant public school five thousand dollars ($5,000) for 26 each instance that the student encountered a person of the opposite sex while 27 accessing a public school restroom, changing facility, or sleeping quarters 28 designated for use by aggrieved student's sex. The student may also recover 29 monetary damages from the defendant public school for all psychological, 30 emotional, and physical harm suffered. 31 (4) Any student who prevails in action brought under this chapter is en- 32 titled to recover reasonable attorney's fees and costs from the defendant 33 public school. 34 (5) Nothing in this chapter limits other remedies at law or equity 35 available to the aggrieved student against the school. 36 33-6607. PREEMPTION. This chapter preempts any law, regulation, pol- 37 icy, or decree enacted or adopted by any city, county, municipality, or other 38 political subdivision within the state that purports to permit or require 39 public schools to allow persons to use facilities designated for the other 40 sex. 41 SECTION 2. SEVERABILITY. The provisions of this act are hereby declared 42 to be severable and if any provision of this act or the application of such 43 provision to any person or circumstance is declared invalid for any reason, 44 such declaration shall not affect the validity of the remaining portions of 45 this act. 46 4 SECTION 3. An emergency existing therefor, which emergency is hereby 1 declared to exist, this act shall be in full force and effect on and after 2 July 1, 2023. 3