Evans v. Garza: No Younger Abstention and a High Bar for Pre‑Enforcement First Amendment Challenges to Texas’s Bathroom‑Privacy Imaging Statute

I. Introduction

In Evans v. Garza, No. 23‑50541 (5th Cir. Dec. 9, 2025), the United States Court of Appeals for the Fifth Circuit addressed a politically charged First Amendment challenge to Texas’s “improper photography” statute, Texas Penal Code § 21.15(b)(2)–(3), in the context of nonconsensual photography and online dissemination of images taken in a women’s restroom at the Texas Capitol.

Michelle Evans, a political activist, tweeted a photograph of a transgender (biologically male) politician washing hands in the women’s restroom during a legislative debate on gender-transition treatment for minors. The Travis County District Attorney, José Garza, requested a DPS investigation under § 21.15(b). Evans responded by filing a federal § 1983 action seeking to enjoin any investigation or prosecution, claiming the statute was unconstitutional both on its face and as applied to her past and future publication of the image.

The district court denied a temporary restraining order and preliminary injunction, invoking Younger federalism concerns in its equitable analysis. On appeal, a divided Fifth Circuit:

Majority (Judge Richman): Affirms the denial of a preliminary injunction; holds that Younger abstention does not apply because there is no ongoing state judicial proceeding, but concludes Evans has not shown a substantial likelihood of success on the merits and has not carried her burden on the preliminary injunction factors.
Dissent (Judge Oldham): Argues that the district court misapplied Younger, that the majority improperly allows Younger values to bleed into the preliminary injunction analysis, and that Evans has satisfied all four factors for preliminary relief, particularly given the core political nature of her speech.

The case is important on several fronts:

It clarifies within the Fifth Circuit that a state investigation without formal charges is not an “ongoing state judicial proceeding” for Younger purposes.
It raises the bar for pre‑enforcement First Amendment plaintiffs seeking to enjoin Texas’s bathroom‑privacy imaging statute by embracing a narrow, intent-based construction of § 21.15(b) drawn from Texas appellate decisions.
It highlights a deep tension between federalism‑based abstention doctrines and the need to protect political speech from chilling effects—especially in contentious cultural disputes about transgender issues and public accommodations.

II. Factual and Procedural Background

A. The Incident and the Tweet

In May 2023, during a debate in the Texas House over medical gender reassignment treatment for minors, Michelle Evans attended the proceedings and used the women’s restroom at the State Capitol. There she encountered a transgender (biologically male) politician. After returning to the gallery, someone in her group had already posted a photograph on Facebook showing the politician, fully clothed, washing hands at a sink in the women’s restroom. Evans then tweeted that photograph, adding a caption expressing the view that the politician should not have been in the women’s restroom.

The tweet triggered controversy. The Texas Department of Public Safety (DPS) interviewed Evans, and she surrendered her cell phone. DPS opened an investigation, at the request of Travis County District Attorney José Garza, into whether Evans violated Texas Penal Code § 21.15(b)—then in effect as:

A person commits an offense if, without the other person’s consent and with intent to invade the privacy of the other person, the person: …
(2) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another in a bathroom or changing room; or
(3) knowing the character and content of the photograph, recording, broadcast, or transmission, promotes a photograph, recording, broadcast, or transmission described by Subdivision (1) or (2).

The offense is a state jail felony.

B. The 2025 Amendment

After the events in question, the Texas Legislature amended § 21.15(b) in 2025. The relevant change broadened subsection (b)(2) from “in a bathroom or changing room” to:

…a visual image of another person in a place in which a person has a reasonable expectation of privacy.

However, the Fifth Circuit emphasizes that the applicable law for Evans’s case is the version in effect in May 2023, limited to bathrooms and changing rooms.

C. Federal Lawsuit and District Court Ruling

Fearing prosecution and ongoing investigation, Evans filed a federal § 1983 suit in the Western District of Texas about 46 days after the incident, seeking:

A temporary restraining order and preliminary injunction barring investigation or prosecution of her based on the photograph.
Declarations that § 21.15(b)(2)–(3) are unconstitutional on their face and as applied to her past tweet and any future dissemination of the image, under the First and Fourteenth Amendments.

The District Attorney represented that his office had “paused its evaluation of potential criminal charges” during the federal litigation and pending any judicial determination of the statute’s constitutionality.

The district court denied injunctive relief. It discussed Younger v. Harris and suggested that Younger-type federalism concerns counseled against interfering with what it characterized as a state criminal investigation that might lead to prosecution. It then folded those concerns into its analysis of the balance of equities and public interest, concluding that federal intervention would be inappropriate.

D. Appeal

Evans appealed the denial of a preliminary injunction. On appeal, the key questions were:

Does Evans have standing to pursue a pre‑enforcement challenge?
Does Younger abstention or related federalism doctrines bar federal relief when only an investigation—not formal charges or a judicial proceeding—is pending?
Has Evans met the traditional four‑factor standard for a preliminary injunction, particularly her likelihood of success on the merits of her First Amendment challenge?

III. Summary of the Fifth Circuit’s Decision

A. Majority Opinion (Judge Richman)

Standing: Evans has standing. The “threat of future prosecution” is a cognizable injury that is “fairly traceable” to the District Attorney and redressable by injunctive relief, consistent with Susan B. Anthony List v. Driehaus.
No Younger Abstention: Younger abstention does not apply. There is no “ongoing state judicial proceeding” because only a DPS investigation is pending; no charges or judicial actions have commenced. Investigations alone do not trigger Younger.
Preliminary Injunction Standard: Although the district court discussed Younger, the Fifth Circuit reviews the preliminary injunction denial under the standard four‑factor test (Winter; Concerned Women for America). The plaintiff bears the burden of persuasion on all four factors.
Irreparable Harm: The majority acknowledges that the threat of prosecution “hangs over” Evans and likely chills her future dissemination of the image, which can qualify as irreparable harm. But irreparable harm alone is not sufficient; she must also show a substantial likelihood of success on the merits and that the equities/public interest favor an injunction.
Likelihood of Success on the Merits – Facial Challenge:
- Evans’s overbreadth challenge is unlikely to succeed. Overbreadth is “strong medicine” used “sparingly and only as a last resort” (Broadrick, N.Y. State Club Ass’n).
- Evans must show that “a substantial number” of the statute’s applications are unconstitutional “in relation to [its] plainly legitimate sweep.” She has not done so.
- The majority highlights numerous clearly constitutional applications, e.g., nonconsensual photographs of genitalia or other intimate body parts, or images of any person (adult or child) using bathroom facilities.
- The statute’s limitation to images “in a bathroom or changing room” further narrows its reach and makes facial invalidation “highly unlikely.”
Likelihood of Success on the Merits – As‑Applied Challenge:
- The Fifth Circuit relies heavily on Texas intermediate appellate case law, particularly Ex parte Metzger, which held § 21.15(b) is a content‑based restriction but survives strict scrutiny due to:
  - a compelling state interest in “personal seclusion, bodily integrity, and sexual privacy,” and
  - a constraining interpretation of the statute’s “intent to invade privacy” element.
- Under Metzger and decisions in Krenzer and Morgan, the “intent to invade privacy” element effectively limits the statute to images created or transmitted in a manner or with subject matter that is “highly offensive to a reasonable person of ordinary sensibilities.”
- The majority “agree[s] with Metzger” that the state’s interests are compelling and that the specific intent requirement sufficiently narrows the statute. This high mens rea threshold, they say, protects non‑offensive or incidental photography.
- Evans argues this intent requirement is vague or adds nothing, but she supplies no Texas case law undermining the narrowing construction. Accordingly, she fails to show a substantial likelihood of success on her as‑applied claim.
Balance of Equities and Public Interest:
- The third and fourth factors “merge” when the government is the opposing party (Nken v. Holder).
- Enjoining a duly enacted criminal statute imposes a form of irreparable harm on the State and disserves the public interest in having its laws enforced (Veasey v. Abbott; Justice Rehnquist’s in‑chambers opinion in New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co.).
- Although there is some harm to Evans from chilling of her speech, the majority finds she has not met her burden to show that this harm, combined with her limited likelihood of success on the merits, justifies the extraordinary remedy of a preliminary injunction.
Result: Because Evans did not carry her burden on likelihood of success and other factors, the Fifth Circuit holds that the district court did not abuse its discretion in denying a preliminary injunction. The judgment is affirmed.

B. Dissenting Opinion (Judge Oldham)

Judge Oldham offers a robust dissent on both procedural and substantive grounds.

Critique of the District Court’s Younger Analysis:
- The district court erroneously treated a criminal investigation as sufficient to trigger Younger abstention and referred to an “ongoing state criminal investigation” as if it were an “ongoing state criminal prosecution.”
- That approach conflicts with Fifth Circuit precedent (e.g., Google Inc. v. Hood, where an investigation did not trigger Younger) and Supreme Court authority requiring actual “pending state judicial proceedings.”
Anti‑Injunction Act and § 1983:
- The dissent provides a detailed history of the Anti‑Injunction Act (AIA) (28 U.S.C. § 2283), which generally bars federal injunctions staying state court “proceedings” subject to three statutory exceptions.
- Mitchum v. Foster interprets the “expressly authorized” exception and holds that § 1983 suits fall within that exception, meaning that federal courts can enjoin state proceedings when necessary to vindicate federal rights.
- Because Evans proceeds under § 1983 and there is no pending state proceeding, neither the AIA nor Younger bars her claim for injunctive relief.
Critique of the Majority’s Use of “Younger Values” in the PI Analysis:
- The majority and district court both rely on “values underlying Younger” as part of the balance‑of‑equities and public‑interest analysis.
- Judge Oldham argues this gives Younger “double billing”: once as a threshold abstention doctrine (which the majority concedes does not apply), and then again indirectly when weighing the preliminary injunction factors.
- He cites Steffel v. Thompson and Lake Carriers’ Ass’n v. MacMullan to argue that comity and federalism concerns have “little force” absent a pending state proceeding. Once we determine no proceeding exists, Younger should disappear from the analysis.
Recommendation: Remand for Proper PI Analysis:
- Because the district court’s reasoning was “tainted” by its misapplication of Younger, Judge Oldham would remand for the district court to consider the preliminary injunction factors “in the first instance,” consistent with the Supreme Court’s admonition that appellate courts are courts “of review, not of first view.”
- However, since the majority proceeds to apply the PI factors, he does as well.
As‑Applied First Amendment Analysis:
- Judge Oldham agrees that § 21.15(b) is content‑based (following Metzger) and subject to strict scrutiny (Reed v. Town of Gilbert).
- He acknowledges the State’s compelling interest in preventing voyeuristic invasions of sexual privacy.
- However, he views this case as a clear example of unconstitutional application:
  - The subject is a political activist and candidate involved in a public policy debate at the State Capitol.
  - The photograph shows the person fully clothed, washing hands at a public sink—conduct that he argues is essentially no different, privacy‑wise, from standing in any other public area.
  - The tweet is “speech concerning public affairs” at the “core” of First Amendment protection.
- In his view, applying the statute here does not meaningfully further a privacy interest, and is not the least restrictive means of achieving the State’s legitimate aims.
Overbreadth and Facial Concerns:
- On the facial front, Oldham emphasizes that the overbreadth inquiry is “fact‑intensive” and should be conducted on remand with evidence concerning the statute’s actual applications (Moody v. NetChoice / NetChoice v. Paxton).
- He criticizes the majority for hypothesizing favorable applications (e.g., paparazzi chasing celebrities) without an evidentiary record.
- He also notes that § 21.15(b)(1) separately covers “intimate areas,” so invoking intimate‑area photography to justify § 21.15(b)(2) risks conflating distinct statutory provisions.
Irreparable Harm and Balance of Equities:
- Evans’s chilling of speech—her self‑censorship from re‑tweeting the image while under threat of prosecution—is classic irreparable First Amendment harm (“even minimal periods of time” suffice).
- He rejects the idea that it matters Evans sued “only forty‑six days” after the tweet; any chilling effect during that period is constitutionally significant.
- Regarding equities and public interest, he stresses that “injunctions protecting First Amendment freedoms are always in the public interest.”
- He disputes that Travis County has a special sovereign interest in enforcing state criminal statutes (as opposed to “the State”), and he sees little equitable weight in the DA’s maintaining a years‑long threat of prosecution (“Damoclean sword”) while simultaneously pausing formal charges.
Conclusion of the Dissent:
- Judge Oldham would either (1) remand for a clean PI analysis, or (2) on the existing record, grant preliminary injunctive relief to Evans, particularly as to her future publication of the image.
- He closes with a cautionary note about the fragility of free speech and the danger of expanding federalism‑based doctrines at the expense of core political expression.

IV. Detailed Doctrinal Analysis

A. Threshold Issues: Standing and Younger Abstention

1. Standing and Pre‑Enforcement Challenges

The majority’s standing discussion is brief but significant. Relying on Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014), the court treats the threat of future enforcement as a sufficient injury‑in‑fact when:

The plaintiff intends to engage in conduct arguably covered by the statute (here, re‑tweeting or further disseminating the restroom photograph).
There is a credible threat of prosecution (DPS investigation at the DA’s request; phone seizure; ongoing evaluation of charges).

By affirming standing, the Fifth Circuit reinforces that pre‑enforcement First Amendment suits are available in this posture, even before indictment, so long as a credible enforcement threat exists.

2. Younger Abstention and What Counts as an “Ongoing State Judicial Proceeding”

The Fifth Circuit applies its three‑part Younger test (from Bice v. Louisiana Public Defender Board):

Would the federal proceeding interfere with an ongoing state judicial proceeding?
Does the state have an important interest in regulating the subject matter?
Is there an adequate opportunity in the state proceedings to raise constitutional challenges?

Here, the court essentially stops at prong one. Drawing on:

Mulholland v. Marion County Election Board, 746 F.3d 811 (7th Cir. 2014)
Guillemard‑Ginorio v. Contreras‑Gomez, 585 F.3d 508 (1st Cir. 2009)

the majority holds that DPS contact and investigation—without formal charges or proceedings—does not constitute an “ongoing judicial proceeding.” Therefore, Younger abstention is inappropriate.

This is a notable clarification in the Fifth Circuit: mere investigative activity, even by prosecutors or law enforcement, is not enough to trigger Younger’s deference regime. That position aligns with other circuits and with the Supreme Court’s emphasis on actual “pending” prosecutions or state proceedings.

Judge Oldham agrees entirely on this point, and goes further by explaining why the Anti‑Injunction Act (AIA) also poses no barrier: because § 1983 suits fall within § 2283’s “expressly authorized” exception (Mitchum), and because there is no state “proceeding” to be stayed.

B. The Preliminary Injunction Framework

Both opinions apply the standard four‑factor test (Winter; Concerned Women for America):

Substantial likelihood of success on the merits.
Substantial threat of irreparable injury without an injunction.
Balance of harms (plaintiff’s injury vs. harm to defendant if injunction issues).
Public interest (which merges with factor 3 when the government is a party).

Key doctrinal points:

The plaintiff bears the burden of persuasion on all four factors (Canal Authority of Florida v. Callaway).
A preliminary injunction is an “extraordinary remedy” never awarded as of right (Winter).
When the government is the defendant, factors 3 and 4 merge (Nken).

While both judges agree on the legal standard, they profoundly disagree on its application:

The majority treats the strength of the State’s privacy interests and the narrowness of the statute (as construed) as undermining Evans’s likelihood of success.
The dissent views the application here as an outlier that squarely targets core political speech, making Evans’s as‑applied claim particularly strong.

C. Facial Overbreadth vs. As‑Applied First Amendment Challenges

1. Facial Overbreadth Doctrine

Evans argued that § 21.15(b)(2)–(3) are facially unconstitutional because they sweep too broadly into protected expression. The majority applies the Supreme Court’s classic overbreadth framework:

Overbreadth is “strong medicine,” to be used sparingly (Broadrick v. Oklahoma; N.Y. State Club Ass’n v. City of New York).
A plaintiff must show that the statute’s unconstitutional applications are substantial “in relation to the statute’s plainly legitimate sweep.”

Given that:

the statute targets nonconsensual images in inherently private locations (bathrooms; changing rooms), and
obvious constitutional applications exist (e.g., surreptitious photos of nude or partially nude individuals or those engaged in intimate conduct),

the majority concludes that a facial invalidation is “highly unlikely.”

The dissent agrees that a proper overbreadth analysis requires balancing unconstitutional and constitutional applications, but insists that this balancing cannot be conducted solely by appellate speculation. It must be grounded in an evidentiary record developed in the district court showing how the law is actually invoked in practice.

2. As‑Applied Challenge and the Nature of Evans’s Speech

The focal point of the dissent—and the core controversy between the judges—lies in whether § 21.15(b) can be constitutionally applied to Evans’s particular conduct.

Key elements:

The subject of the photo: a transgender activist and candidate, participating in a public legislative debate on gender treatments for minors.
The content: a fully clothed person washing hands at a sink in the Capitol women’s restroom, a space accessible to the public.
Evans’s use: tweeting (and potentially re‑tweeting) the image with commentary criticizing the politician’s presence in the women’s restroom—i.e., political advocacy on a contested public issue.

Judge Oldham characterizes this as “speech concerning public affairs,” entitled to heightened protection. He argues that whatever privacy interest exists in using a sink in a public restroom is negligible and cannot justify criminalizing the dissemination of a photograph in this political context.

The majority, by contrast, emphasizes the location (a restroom) and the legislature’s ability to draw a line at bathroom and changing‑room imagery to protect privacy, even for fully clothed individuals. It also repeatedly underscores that there is no clearly recognized First Amendment right to photograph and distribute images of people in restrooms without consent—especially when privacy‑motivated restrictions are tailored with a specific intent requirement.

D. The “Intent to Invade Privacy” Element and Narrowing Constructions

Central to the majority’s constitutional analysis is the mens rea requirement: the defendant must act “with intent to invade the privacy of the other person.” Texas appellate courts have construed this phrase narrowly.

Ex parte Metzger (Tex. App.—San Antonio 2020):
- Held that § 21.15(b) is a content‑based restriction.
- Upheld the statute under strict scrutiny because it serves compelling interests in personal seclusion, bodily integrity, and sexual privacy.
- Interpreted the intent element to limit the statute to “intolerable” invasions of substantial privacy interests—that is, images whose subject matter or manner of creation would be “highly offensive to a reasonable person of ordinary sensibilities.”
Krenzer v. State (Tex. App.—Dallas 2022) and Morgan v. State (Tex. App.—Amarillo 2023):
- Adopted Metzger’s construction of the statute and its mens rea requirement.

The Fifth Circuit majority expressly embraces these state‑court narrowing constructions, treating them as integral to the statute’s constitutionality. This is an example of the familiar principle that federal courts, when evaluating a state statute, often consider authoritative state‑court interpretations that narrow or limit statutory reach in ways that avoid or mitigate constitutional problems.

Evans attacks the mens rea element as vague or non‑meaningful. But because she does not show that Texas courts ignore or dilute the intent requirement in practice, the majority treats the high mens rea threshold as a key safeguard that prevents the statute from sweeping too broadly.

The dissent responds that, in this case, it would be difficult for the DA to prove that Evans subjectively intended to “invade privacy” in a way any reasonable person would deem “highly offensive,” given:

the public nature of the Capitol restroom sink area, and
the overt political context of the photograph and tweet.

Nonetheless, the dissent stresses that the chilling effect—Evans’s self‑censorship while the DA sits on an unresolved threat of prosecution—is present regardless of whether a conviction would ultimately be obtained.

V. Complex Concepts Simplified

1. Younger Abstention in Plain Language

Younger v. Harris says that, as a matter of federalism and comity, federal courts generally should not enjoin ongoing state criminal prosecutions, except in extraordinary circumstances (e.g., bad faith enforcement). The idea is to avoid federal interference with state courts performing their ordinary judicial functions.

Key points from Evans v. Garza:

An investigation (police questioning; phone seizure; DA “evaluating” charges) is not itself an “ongoing state judicial proceeding.”
Because no charges were filed and no state court case existed, Younger abstention did not bar the federal court from hearing Evans’s constitutional claims.

2. The Anti‑Injunction Act and § 1983

The Anti‑Injunction Act (AIA), 28 U.S.C. § 2283, generally prohibits federal courts from issuing injunctions that halt state court proceedings, subject to three specific exceptions. One such exception allows injunctions “expressly authorized by Act of Congress.”

In Mitchum v. Foster, the Supreme Court held that 42 U.S.C. § 1983—the core civil rights statute—fits that exception. That means:

In proper circumstances, § 1983 allows federal courts to enjoin state proceedings when necessary to protect federal constitutional rights.
However, if no state proceeding exists, the AIA is not even triggered; the question then becomes whether equitable standards for injunctive relief are satisfied.

3. Facial vs. As‑Applied Challenges and Overbreadth

Facial challenge: The plaintiff argues that a statute is unconstitutional in all (or a substantial number of) its applications, not just as applied to her particular conduct.
As‑applied challenge: The plaintiff accepts that the statute may be valid in some or many contexts, but claims it cannot constitutionally be used against her because of the specific facts of her case.
Overbreadth doctrine (First Amendment): A specialized type of facial challenge where the plaintiff claims the statute punishes a substantial amount of protected speech relative to its legitimate reach, justifying invalidation even if the plaintiff’s own conduct might not be protected.

In Evans:

The majority finds a face‑wide overbreadth argument unlikely to succeed due to the statute’s bathroom/change‑room limitation and the clear existence of legitimate applications.
The dissent focuses on the as‑applied challenge, arguing that prosecuting political commentary based on a photo at a public restroom sink is a classic example of unconstitutional application.

4. Strict Scrutiny and Content‑Based Restrictions

A law is content‑based when it regulates speech because of what the speech communicates—its topic, idea, or message. Under Reed v. Town of Gilbert, such laws are presumptively invalid and subject to strict scrutiny, which requires:

A compelling governmental interest, and
Use of the least restrictive means (or a “narrowly tailored” approach) to achieve that interest.

In Metzger and in Evans, the courts treat § 21.15(b) as content‑based because it singles out images taken in bathrooms or changing rooms (and, post‑amendment, in places of reasonable privacy). However:

The state’s interests in sexual privacy, bodily integrity, and seclusion are deemed compelling.
The statute is viewed as narrowly tailored because it:
- Is location‑specific (restrooms, changing rooms), and
- Requires specific intent to invade privacy, construed to reach only “intolerable” invasions that are highly offensive.

The crux of the disagreement in Evans is whether, given those interests and constraints, applying the law to Evans’s tweet is still constitutional.

5. Preliminary Injunctions and Burden of Proof

A preliminary injunction is emergency relief that preserves the status quo before a full trial on the merits. It is not a final determination of rights. To obtain it, the moving party must show:

They are likely to win at trial (not just that they have a non‑frivolous case).
They will suffer irreparable harm without interim relief (harm that can’t be repaired by money or later remedies).
The harm to them outweighs the harm to the defendant from being enjoined.
The injunction is in the public interest.

In Evans, the majority stresses that:

The plaintiff has the burden of persuasion on all four elements.
Even accepting some degree of irreparable harm (chilling of speech), Evans’s inability to show likely success on the merits and to overcome the state’s interest in enforcing its statute is fatal to her request.

VI. Potential Impact and Future Litigation

1. Pre‑Enforcement Challenges to Privacy‑Protective Imaging Laws

Evans v. Garza will likely be cited by:

State and local prosecutors defending “improper photography,” voyeurism, and nonconsensual distribution statutes against First Amendment challenges.
Defendants arguing that such statutes, particularly when limited to locations of heightened privacy and subject to robust intent requirements, can survive strict scrutiny.

By embracing Metzger’s narrowing construction and rejecting a facial overbreadth challenge at the preliminary injunction stage, the Fifth Circuit makes it harder for plaintiffs to obtain early, sweeping relief against bathroom‑privacy statutes in the circuit. Future plaintiffs will likely have to produce a robust factual record demonstrating:

Patterns of unconstitutional enforcement (e.g., repeated use against benign or political speech), and/or
Circumstances where the specific intent requirement is disregarded or effectively watered down.

2. Clarification of Younger’s Reach in the Fifth Circuit

On the federal courts side, the opinion reinforces that:

Investigations are not “proceedings” for Younger purposes—no abstention where only law enforcement inquiries are pending.
Federal district courts in the Fifth Circuit retain jurisdiction to adjudicate pre‑enforcement constitutional challenges in such circumstances.

The more subtle and unresolved question, highlighted sharply by the dissent, is:

To what extent, if any, may district courts consider “values underlying Younger”—federalism and comity—when applying the balance‑of‑equities and public‑interest prongs of the preliminary injunction test in the absence of ongoing state proceedings?

The majority’s willingness to affirm, even while noting the district court’s reference to Younger, suggests some tolerance for such considerations, so long as they do not lead to formal abstention. The dissent sees that as effectively expanding Younger by stealth.

3. Political Speech, Transgender Issues, and Sensitive Locations

Factually, the case sits at the intersection of:

Political speech about gender identity and public accommodations, and
Statutory efforts to protect privacy in places like restrooms and changing rooms, particularly against nonconsensual photography amplified by social media.

Future disputes are likely where:

Political actors or activists document the presence of transgender individuals in sex‑segregated spaces to make a point about policy or culture.
The photographed individuals invoke privacy‑protective statutes to counter what they experience as harassment or “outing.”

Evans signals that, at least in the Fifth Circuit, privacy‑based imaging restrictions in bathrooms have substantial doctrinal support, and courts may be reluctant to enjoin their enforcement at the preliminary stage—even where the speech has a strong political dimension—unless the plaintiff can show a clear mismatch between the privacy interest and the application at issue.

4. Procedural Strategy and the “Squeeze Play” Concern

The dissent raises a structural concern: if plaintiffs file too early (before charges), district courts may deny relief on equitable grounds, citing comity and federalism; if they wait until after charges are filed, Younger might bar relief entirely. This “squeeze play” can make it practically difficult for even meritorious constitutional challenges to obtain timely injunctive protection.

Evans does not resolve that tension. But litigants in the Fifth Circuit will need to calibrate timing, factual development, and the framing of both facial and as‑applied claims with that dynamic in mind.

VII. Conclusion: Key Takeaways

Evans v. Garza is not a final merits ruling on the constitutionality of Texas’s improper‑photography statute. It is, however, a significant appellate decision that:

Rejects Younger abstention in the context of a DA‑requested criminal investigation without charges or judicial proceedings, confirming that such investigations do not trigger Younger within the Fifth Circuit.
Affirms denial of a preliminary injunction by finding that Evans has not shown a substantial likelihood of success on either her facial overbreadth or as‑applied First Amendment challenges to § 21.15(b)(2)–(3).
Endorses state appellate courts’ narrow reading of the statute’s “intent to invade privacy” requirement, treating it as a key constitutional safeguard that confines the law to “highly offensive” invasions of sexual and personal privacy.
Highlights a sharp divide between the majority and dissent on:
- How robustly political speech in sensitive locations (like restrooms) should be protected.
- Whether federalism and comity considerations can permissibly influence equitable relief when no state proceedings are pending.

For practitioners and scholars, Evans underscores the need to:

Develop strong factual records showing how privacy‑protective speech restrictions operate in practice.
Carefully distinguish between facial and as‑applied theories, especially in politically charged speech cases.
Remain attentive to the interplay between abstention doctrines and the practical availability of pre‑enforcement relief for chilled speakers.

In sum, the decision sets a high bar for pre‑enforcement First Amendment challenges to Texas’s bathroom‑privacy imaging statute, even while leaving key constitutional questions open for fuller development in future litigation.