A Texas woman is facing potential criminal charges over her May 2023 reposting of a photo on X of a man who identifies as transgender in a women’s bathroom.

The platform that Michelle Evans reposted the photo on is now supporting her in what’s become a legal battle over freedom of speech, X announced Monday.

The Texas woman reposted a picture—one she did not take herself—of the transgender-identifying man washing his hands in the state capitol building bathroom, with a caption expressing how she didn’t believe he should use the women’s restroom. This led to Travis County District Attorney José Garza launching a criminal investigation into whether Evans violated a state law prohibiting the transmission of images of individuals in restrooms or changing rooms without consent and with intent to invade privacy.

Evans sued to block Garza from investigating or prosecuting her, citing First Amendment grounds, but that request was denied.

On appeal, a three-judge panel for the Fifth Circuit Court of Appeals ruled 2–1 against Evans earlier this month to allow the criminal investigation to move forward.

The case seems to be stuck in limbo, with no word on what’s coming next, Evans told The Epoch Times.

Restroom Incident

Evans, a political activist for a decade and GOP chair for Williamson County, Texas, who is currently running a reelection campaign, said she was in the state capitol building in May 2023 attending a floor debate over gender modification surgery for children. During the heated debate, Evans said herself and older women she was with were threatened and verbally harassed by supporters of such surgery, so she offered to help escort the women she was with to a restroom.

While waiting in line, Evans said a man walked in to use one of the stalls and then washed his hands.

“I went to the door to the bathroom ... held it open, and as he was leaving, I told him ‘Next time, use the bathroom across the hall. That’s for men,’” Evans said. “He insisted that he was legally a woman, and I said, ‘That doesn’t matter. You’re a man.’”

Upon returning to the gallery for the floor debate, a friend of Evans showed her a Facebook post of the man who identifies as transgender washing his hands in the women’s restroom who she had just encountered. Evans asked for the photo to post herself on X, and in just hours, it had gone viral.

“I’m sure it won’t be the last time today, but just had to tell this man to stop using the women’s restroom at the Capitol. There are young girls here on school field trips. Take your delusion and fetish [expletive] out of our spaces,” Evans wrote in her post.

While she was still at the capitol attending the debate, Evans learned that Travis County District Attorney Garza had opened an investigation into her and soon after, found herself sitting in an office of the capitol building being questioned.

“While my attorney was on his way, one of the representatives came in and informed me: ‘They’re not going to let you leave unless you give them your phone. You can leave, but your phone cannot,’” Evans said. “They confiscated my phone.”

Evans told The Epoch Times her phone was never returned.

Forty-six days after being questioned at the capitol in May 2023, Evans’s attorneys filed the lawsuit requesting an injunction against the Travis County district attorney office’s criminal investigation. The office agreed to pause its “evaluation of potential criminal charges” pending the lawsuit. It wasn’t until Dec. 9 this year that the three-judge panel gave the district attorney’s office the green light to continue its investigation.

“No law enforcement office, including the DA’s office, has had any contact with me or my attorney regarding taking a statement from me or anything of that sort,” she said, adding that no law enforcement officer or the district attorney’s office ever asked her who originally took the photo she reposted on X.

The Travis County District Attorney’s Office did not respond to a request for comment.

Support and Defense

The Sunday before Christmas, Evans’s lawyer received an email from X with an offer to provide legal support, and on Monday, Elon Musk’s social media platform officially announced its backing her case.

X’s Global Government Affairs page wrote, “The First Amendment protects Ms. Evans’ speech.”

“Ms. Evans did not even take the photo. She merely posted it on X as part of political commentary on transgender issues,” X’s Global Government Affairs page said. “X is therefore assisting Ms. Evans in pursuing an appeal before all 17 judges of the Fifth Circuit. We look forward to the full Fifth Circuit correcting this wrong and preserving free speech, which is the foundation of American democracy.”

Evans and her attorneys have also said that her post is a matter of free speech and the law she’s accused of violating is overly broad, with the dissenting judge in the 2–1 decision earlier this month agreeing.

“Michelle Evans retweeted a picture of a fully clothed man washing his hands in the women’s bathroom at the Texas State Capitol. For that purported sin, Travis County District Attorney Jose Garza opened a criminal investigation and threatened to bring the awesome weight of the County’s prosecutorial machinery down,” the appellate judge wrote, pushing back against arguments that the photo was an invasion of privacy.

The same judge said the law Evans was allegedly accused of violating cannot be applied in this case because it unconstitutionally suppresses political speech.

“There is no way that DA Garza could prove that Evans had some specific intent to commit an intolerable invasion of anyone’s privacy in retweeting a picture as part of a public policy debate,” the judge dissented.

One of the other judges said the law wasn’t unconstitutionally applied to Evans’s actions.

“[T]he statute protects compelling government interests because the rights to personal seclusion, bodily integrity, and sexual privacy are substantial rights; and the state has a compelling interest in protecting those rights from highly offensive or ‘intolerable’ attack,” one of the opposing judges wrote.

“It is also 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.”

Right now, it’s unclear as to what form X’s support will come in, whether it’s financially or symbolically.

“I’ve not signed any sort of engagement letter with them to represent me directly, and there’s been no commitment on document or anything of any kind of financial support,” Evans said. “My assumption is that they’re just going to be supporting me legally in some form or fashion.”

Legal Limbo

As far as what comes next, Evans said she is unsure as her counsel works to gather support for an “en banc” session in the Fifth Circuit Court of Appeals, where all judges of the court hear a case as opposed to a three-judge panel. This allows the possibility of the full circuit court overturning the previous decision by the three-judge panel.

According to the court’s website, a majority of the judges must vote in favor of a petition for an en banc hearing to consider a case. If the vote is not in favor, then the original three-judge panel makes the decision.

Evans’s attorney submitted their petition for an en banc last week.

“So far, I think we had one judge [who] has expressed interest,” Evans said. “As far as I know, we’re not there yet.”

Garza’s office did not respond to emailed questions about whether they plan to file criminal charges or if there is a criminal investigation still underway. The office also did not respond to questions regarding X’s support for Evans.

“I check the Travis County website periodically to see if there’s been a warrant filed. I’ve talked to the sheriff in my county to see what I would need to do if they do file a warrant,” Evans said.

The dissenting judge earlier this month wrote that if Evans achieves an acquittal, it won’t be enough of a remedy to make up for the suppression of speech she suffered. Evans’s professional career has not been severely affected since May 2023, she said, as the more worrying concern is about her and her family’s safety.

“People know where I live. People have come to my house. They’ve posted my GPS coordinates. They’ve talked about my kids,” Evans said.