This case is being framed by some as a free speech controversy. It is not. At its core, it is a straightforward privacy case involving a bathroom, a photograph, and a statute that is neither vague nor ideological.
What Happened
Michelle Evans attended a session of the Texas legislature while lawmakers debated a bill restricting health care for transgender youth. While there, she encountered a transgender activist in a women's restroom and confronted her. After returning to her seat, Evans came into possession of a photograph—taken by someone else—showing the woman washing her hands in that restroom. Evans reposted the image on X, criticizing the woman for using the bathroom.
That repost is what triggered the legal consequences.
Travis County District Attorney José Garza opened an investigation under Texas Penal Code § 21.15. The statute makes it a felony to transmit or promote "a visual image of another in a bathroom or changing room" without that person's consent and with intent to invade their privacy.
Rather than waiting for the investigation to conclude, Evans sued Garza, arguing that even investigating her violated her First Amendment rights.
The Core Legal Question
Evans is not arguing that she exercised poor judgment, or that prosecutors should decline to charge her. She is arguing something much broader and far more difficult to sustain: that the Constitution forbids the district attorney from prosecuting her at all.
Her claim is that reposting the image was protected speech because she was commenting on what she calls a "matter of public concern," and that this protection overrides the privacy statute.
That is an extraordinarily high bar. Courts are generally reluctant to block prosecutors from even investigating alleged violations of a valid, content-neutral law.
Why Evans Is Likely to Lose
The reasonable expectation of privacy is firmly established in American law, and bathrooms are one of the clearest examples of spaces where that expectation applies. This protection does not depend on who the person is, what they believe, or whether someone else objects to their presence.
The statute itself is also clear and neutral. Texas law does not prohibit certain viewpoints or messages. It prohibits transmitting images of people in bathrooms without consent. The motive behind the transmission does not matter. As University of Texas law professor Sanford Levinson bluntly put it, "She clearly violated the law."
The fact that Evans did not take the photograph herself does not help her. The statute explicitly covers promoting or transmitting such images, regardless of who captured them. Reposting the image to a large audience is precisely the conduct the law addresses.
The Fifth Circuit has already weighed in. Earlier this month, a divided panel ruled 2–1 that the investigation may proceed. Evans is now seeking an en banc rehearing before all seventeen judges of the circuit.
Finally, the First Amendment does not provide blanket immunity for speech that violates content-neutral laws. Political intent does not override privacy protections any more than it overrides defamation law or harassment statutes. Courts routinely distinguish between speech and conduct, and this case sits squarely in that distinction.
What Musk's Involvement Actually Changes
Elon Musk, through X's Global Government Affairs department, has announced that the company will fund Evans' appeal, calling the Fifth Circuit decision "misguided and dangerous."
In practical terms, Musk's involvement means money. It means access to experienced appellate lawyers and the ability to push this case as far as possible through the courts.
What it does not mean is a stronger legal argument.
Funding cannot rewrite a statute, erase long-standing privacy doctrine, or force judges to ignore precedent. Courts decide cases based on law and facts, not the wealth or ideology of the party backing an appeal.
Likely Outcomes
The most probable outcome is that the en banc Fifth Circuit declines to rehear the case or affirms the panel's decision. The investigation would then continue. If Evans is charged, the case would proceed on straightforward facts under a clear statute.
A less likely outcome is that an en banc panel finds some narrow First Amendment issue. Even so, courts—conservative or otherwise—have historically treated bathroom privacy as foundational, not negotiable.
The long-shot scenario is Supreme Court review. Even there, it is difficult to imagine a ruling that bathroom privacy laws are unconstitutional when applied to political speech. Such a decision would destabilize privacy law far beyond this case.
The Hypocrisy Problem
The same political actors defending Evans are among the loudest proponents of bathroom bills supposedly enacted to protect women's privacy.
In this case, however, a woman's bathroom privacy was plainly violated. The person photographed was doing nothing more than washing her hands. The image was circulated for political targeting and harassment. Now, those same advocates argue that privacy laws should not apply.
Texas Attorney General Ken Paxton—who recently launched a tip line encouraging people to report suspected transgender individuals in bathrooms—has aligned himself with Evans. The concern was never privacy. It was always enforcement against trans people.
Bottom Line
Evans violated a clear, content-neutral statute. The First Amendment does not grant a license to distribute bathroom images for political purposes. Elon Musk's financial backing may prolong the litigation, but it does not change the underlying law or the facts.
The investigation will proceed. If charges are filed, conviction is likely unless a jury refuses to apply the law. Appeals will fail unless courts are willing to carve out a sweeping exception to privacy protections—an exception that would undercut the very bathroom laws these same actors claim to support.
