“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. It includes judges nominated in both his first and second terms.
What’s at stake in this case?
In the October 2026 case of Evans v. Garcia, an opponent of transgender equality claims a First Amendment right to post photos of a trans woman in a public bathroom as protected political speech.
What happened in this case?
Michelle Evans was attending a Texas legislative debate on transgender rights in 2023. When she went to use the women’s bathroom, she saw a trans woman there and thought she should be forced to use the men’s bathroom. Evans posted a photo of the trans woman washing her hands at the bathroom sink, with a caption saying “I just had to tell this man to stop using the women’s restroom.”
Texas has a privacy law that prohibits the dissemination of photos of people in a public bathrooms without their consent. Prosecutors investigated the incident. Evans sought a court order prohibiting prosecutors from further investigation, claiming her constitutional rights to free speech were being violated.
A federal district court ruled against her in an opinion that was upheld by a divided three-judge panel of the Fifth Circuit in 2025. One of the judges in the circuit then asked the court to rehear the case en banc.
How did the court rule?
The full court voted 10-7 not to rehear the case. The ten judges in the majority included those nominated by Presidents Reagan, Clinton, George W. Bush, Obama, and Biden.
Bush Judge Priscilla Richman, who had written the original panel majority opinion, concurred with the decision not to rehear the case. She wrote that the law did not stop Evans from “broadcast[ing] to the world” who she saw in the bathroom and her strong objections to her presence. At the same time, the state has a compelling interest in protecting a person’s expectation of privacy in a public bathroom.
Richman rejected Evans’ claim that since the trans woman was fully clothed and at the sink, others have a right to photograph her. Richman wrote that “to say that a person has an
expectation of freedom from being photographed only when that person's genitalia might be exposed would confine the right to privacy and seclusion too narrowly.”
What position did the Trump judges take?
All six Trump judges, along with Reagan judge Edith Jones, dissented. Andrew Oldham wrote a short dissent joined by several other judges complaining that conservative political speech was being targeted. There was also a much longer dissent from James Ho that no other judge joined.
What did Ho’s dissent say?
Ho’s dissent misgendered the crime victim and denigrated trans people. He complained that “a man enters a women’s bathroom – and it’s the man’s privacy that is violated?” He also complained that the majority decision “captures the cultural zeitgeist of societal elites.”
He also condemned judges who use the pronouns that transgender litigants apply to themselves. He even expressed particular bitterness about an aspect of last term’s West Virginia v. B.P.J. case, in which the majority ruled against trans women and girl athletes. The full title of the case was West Virginia v. B.P.J. by her next friend and mother Heather Jackson. This prompted Ho to complain that “the Supreme Court used a female pronoun to describe the male plaintiff in the caption of its decision.”
What is the importance of Ho’s dissent?
Ho’s solo dissent made clear his contempt for trans litigants and hostility to understanding the reality of trans people’s existence. Ho is a leading name floated as a possible Trump nominee for a potential vacancy on the Supreme Court. His dissent is a reminder that our rights and safety depend on having fair-minded judges on our federal courts.