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X joins suit over trans bathroom photo

Platform says panel's decision is 'dangerous'

By: BrieAnne J. Frank
USA Today

..... Elon Musk's social medal platform X announced it;s getting involved in a legal fight on behalf of a Texas woman under investigation for posting a photo of a transgender woman in a women's restroom.
..... Michelle Evens, who serves as chair of the Williamson county Republican Party, posted the photo showing a transgender activist who had announced a potential bid for the Texas legislature on a women's restroom on the day a bill related to gender transitions came up for debate at the state Capitol in May 2023, according to a complaint field in U.S. District Court for the Western District of Texas.
..... The move trigged a Texas Department of Public Safety investigation that led to Even's surrendering her cell phone to authorities, which in turn prompted her to sue in part on First Amendment grounds. Both a district court and a three-judge panel of the 5th U.S. Circuit Court of Appeals denied Evens' request for a preliminary injunction, allowing the investigation to continue as litigation proceeds.
..... The state's law governing "invasive visual recording: was first implemented in 2001 but has been amended several times in the years since. It's most recent version, which went into effect in September, [2025] bars non-consensual visual recordings of people "in a place in which a person has a reasonable expectation of privacy," which includes bathrooms, bedrooms and changing rooms.
..... X Corporation's Global Government Affairs teams aid in tis December 29 [2025] announcement that it was "proud to support" Evens in her case. It called the panel's decision "misguided and dangerous" and said it would seek an appeal with the entire appellate court.
..... "We look forward to the full fifth Circuit correcting this wrong and preserving free speech, which is the foundation of American democracy," the com,many said.
..... The X announcement came days after Texas Attorney General Ken Paxton launched a tip line to report violations of a state law requiring government buildings to restrict access to restroom facilities based on biological sex.
..... In a statement to USA Today, Evens said she was "grateful for X's legal support in hr fight against what she described as a district attorney "abusing hos power to target me for speaking out against gender identity ideology in Texas."
..... Attorney tony McDonald, who is representing Evens, said it was an "important First amendment case" and that he was "excited that X Corp had joined the fight to defend Mrs. Evens" free speech rights."
..... The prosecutor's office in Travis County, which includes Austin, fired back at the involvement of X.
..... "Of course, under Elon Musk's leadership. X supports users posting photos of other users in the bathroom without their consent," the office said in a statement.
..... USA Today reached out to the activists and X for comment.
..... Evens did not take the photo in question, according to the complaint. She saw the photo on Facebook and copied it to spot on her X account, it said.
..... The spot promptly gained traction and complaints from people with assumed Evans had taken the photo. Just prior to the vote on Senate bill 14, which bans gender-affirming health care for transgender youth and ultimately became law, Department of Pubic Safety officers detained Evans for questioning, the complaint said.
..... Evans surrendered her cell phone after being told she could only leave if she did so, the complaint said.
..... A Department of Public Safety official later told Evens that Travis County District Attorney Jose Garza ordered the investigation because of a Texas law banning people form distributing an image of someone in a bathroom "without the other person's consent and with intent to invade the privacy of the other person," the complaint said.
..... Evans said Garza in his official capacity as district attorney over the matter, arguing in part the First Amendment "protect the rights of Texans to speak about matters of public concern," which she said applied to her case.
..... Courts disagreed.
..... A district court denied Evens' request for a preliminary injunction, and the 5th U.S. Circuit Court of Appeals affirmed that decisions in a 2-1 ruling.
..... The court's December 9 [2025] opinion said its "far from clear that there is a First Amendment right to capture and distribute an image without their permission, of a fully clothed adult while in a public bathroom."
..... "Is any citizen, celebrity or not, fair game for photos or videos while in a restroom?" the opinion read. "Does the fact that a person is an elected official change that equation? The law is certainly not clear that politicians may be pursued, even in a public restroom, for the purpose of obtain and publicizing their image."
..... Similar questions were raised in Arizona after a group of activists followed then-Democratic Senator Kyrsten Sinema into a restroom at Arizona State University in October 2021. The activists were confronting Sinema over her ambivalence for then-President Joe Biden's Build Back Better Act, the Arizona Republic reported.
..... The appellate court panel said it is "not clear" whether Evans will ultimately face criminal charges but that the "threat of prosecution hands over her."
..... It's not the firs time X Corporation has gotten involved with a First Amendment fight.
..... The company sued the state of New York in June 2025 over the Stop Hiding Hate Act, which compelled companies to outline steps taken to combat extremism, disinformation and other potentially harmful content.
..... X Corporation argued that the law was unconstitutional because it "permissibility interferes with he First Amendment-protected editorial judgments of companies ... to remove demonetize, or depriortize such speech on their platforms."
..... The company also reached a settlement with the state of California in February 2025 in a lawsuit over a similar law.
..... It also sued the state of Minnesota in April 2025 in part on First Amendment grounds over a law making it illegal to use AI-generated deep-fakes to influence an election.

..... BrieAnna Frank's First amendment reporting is supported through a collaboration between the Freedom Forum and Journalism Funding Partners. Funders do not provide editorial input.

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