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Free Speech

Kafka's The Trial "Was Not Supposed to Be an Instruction Manual"

In a Fifth Circuit case (which the court just declined to rehear en banc), a woman had faced potential prosecution for publishing a photo of a transgender politician washing hands in a women's restroom.

Eugene Volokh | 10.9.2026 5:30 PM

From Fifth Circuit Judge Priscilla Richman, concurring in the 10-7 vote to deny rehearing en banc in Evans v. Garza (for more on last year's panel opinion, see here):

The statute under scrutiny made it a crime to disseminate a photograph of a person in a restroom under certain circumstances. The photo that Michelle Evans tweeted undoubtedly punctuated her political speech that accompanied the photo. But Michelle Evans could have conveyed her political views without publishing the photo. The Texas statute did not impinge at all on Evans's ability to broadcast to the world that she saw a biological male who is transgender, and who was also a political candidate, use a women's public restroom at the Texas Capitol complex, and to express her strong political views that this should not be permitted.

The question is whether it is likely (since we are at the preliminary injunction stage) that a state has a compelling interest in protecting a person's expectation of privacy in a restroom that is sufficient to outweigh First Amendment free speech rights under the facts of this case. I submit that the answer is "yes."

Evans attended a debate in the Texas House of Representatives at the Texas Capitol about gender reassignment treatment for children. When she visited the women's restroom, she encountered a biological male who is a transgender female, and who was at the time running for election to the Texas House of Representatives. Texas law did not prohibit a biological male who identifies as a female from using a women's restroom….

Evans then returned to her seat in the Capitol gallery, where one of her seatmates showed her that someone else from their group had posted on Facebook a photo of the candidate washing their hands in the women's restroom. Evans posted the photo on Twitter with a caption:

Evans's tweet generated a controversy, and the Travis County District Attorney, José Garza, investigated whether Evans had violated Texas Penal Code § 21.15(b). This statute criminalized—as a state jail felony—transmitting "a visual image of another in a bathroom or changing room" or promoting such a transmission if the action is done without consent and "with intent to invade the privacy of the other person."

Evans has not been prosecuted, but she sought a temporary restraining order and preliminary injunction in federal court prohibiting Garza from investigating or prosecuting her based........

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