NASHVILLE, Tenn. (WTVF) — Tennessee has been permanently blocked from enforcing a law requiring businesses to publicly post their policy on trans bathroom usage.
United States District Judge Aleta A. Trauger struck down Tennessee’s first-of-its-kind law requiring businesses to post special signs if they allowed transgender people to use the bathroom of their choice. The bill was first introduced in February 2021.
On May 17, 2021, Gov. Bill Lee signed House Bill 1182 into law, which required businesses open to the general public to post a notice outside of their bathrooms about whether they restricted usage based on biological sex.
If a business chose not to mandate biological sex restrictions, it had to post very obvious signage outside of its bathroom doors with the words, "This facility maintains a policy of allowing the use of restrooms by either biological sex, regardless of the designation on the restroom."
The bill went into effect in July 2021. Businesses that did not comply within 30 days of being notified that they were in violation would receive a Class B misdemeanor, punishable by up to six months in jail and up to a $500 fine.
The bill's sponsor was Representative Tim Rudd, R-Nashville, who argued that sexual predators would take advantage of trans-inclusive restroom policies, but he could not provide examples or evidence of the existence of the problem outside of the realm of the hypothetical.
On June 25, 2021, the ACLU brought a lawsuit against the bill on behalf of Bob Bernstein, owner of Fido restaurant in Nashville, and two other plaintiffs no longer part of the current litigation. They argued the signs violated their First Amendment rights by compelling them to communicate language they found offensive.
On July 9, 2021, the court granted the plaintiff's motion and temporarily blocked the law just days after it took effect. Trauger's latest ruling will now make the block permanent.
In the debate leading to Trauger's final decision, there were many arguments about trans and intersex identities and public presentations. While plaintiffs and defendants argued about terms such as "assigned sex at birth," Trauger determined that "the plaintiffs and defendants are simply characterizing the exact same social practice, which both sides agree occurs, in different ways, based on different underlying assumptions about the norms and terminology at issue."
A key factor in Trauger's ultimate ruling was the specificity of the required language and the appearance of the required signs. Her analysis determined that the requirement of the signage to include the phrase "either biological sex" with no alternative phrases would require an establishment to adhere to the concept of sexual binaries that it may or may not agree is true, and it would have to do so against its will.
Trauger offered examples of policies that would be more enforceable than this particular piece of legislation.
"The Act could, for example, merely require all businesses to disclose their policies upon request. It could permit businesses to choose their own factually accurate language for describing their policies. It could, at the very least, permit a business to design its signage without a cartoonishly alarmist color scheme," Trauger wrote.
Moreover, the law was determined to invite unnecessary additional costs to ensure its maintenance.
"[T]he Act effectively subjects those who defy it to a heightened level of potentially costly scrutiny under the state’s building code," wrote Trauger.
"A world in which a private person has to choose between complying with a controversial law or putting his business at risk, only then to be able to sue, is not a world in which the First Amendment is being adequately protected," her analysis continued.
Officials also conveyed unclear messages about how the measure would have been enforced.
"If anything, the uncertainty regarding the Act’s enforcement sheds a light on the degree to which the Act functions as a trap that the state can spring at any time on a business that it considers too friendly to its transgender patrons," wrote Trauger.
"The relevant constitutional question is whether the Act compels the plaintiffs to voice a message to which they earnestly object, based upon their disagreement with its content. The undisputed evidence shows that it does," Trauger ruled.
Defense argued that plaintiff complaints about the law were based on "imagined" undertones in the language required by the signs.
"The only thing that is imaginary in this case, though, is the imagined consensus on issues of sex and gender on which the defendants seek to rely," Trauger wrote. "Transgender Tennesseans are real. The businesses and establishments that wish to welcome them are real. And the viewpoints that those individuals and businesses hold are real, even if they differ from the views of some legislators or government officials."
You can read the full Memorandum and Analysis by Judge Trauger here.