Tennessee’s Bathroom Bill was Blocked

Photo by **Tim Mossholder** from **Pexels**

Everybody needs to pee. Holding in your pee for too long causes health problems. That’s one of many cruelties of “bathroom bills” that prohibit people who are transgender or non-binary from using a public restroom.

Holding in your pee causes health problems

What happens if you have no choice other than to hold in your pee? The answer to that question comes from Lamia Gabal, MD, a board-certified urologist. “Holding in pee is a complex series of interactions between your bladder muscle and your pelvic floor muscles, which make up the urinary sphincter,” Dr. Gabal said. “Chronically holding in your pee can overstretch your bladder and lead to muscle weakness.”

Planned Parenthood points to a number of ways to prevent having a urinary tract infection (UTI). One piece of advice says: “Pee when you need to. Don’t hold it.” Cleveland Clinic says that a urinary tract infection can be easily treated with antibiotics. If it isn’t treated or if the person stops taking the medication early, this type of infection can lead to a more serious infection, like a kidney infection.

In short, “bathroom bills” are a public health problem because they prohibit people who are transgender, non-binary (or both) from being able to pee when their bodies need to. Cruelty is the entire point of “bathroom bills”.

How did the Business Bathroom Bill happen?

It starts with Senate Bill 1224 (SB 1124) which was titled: “AN ACT to amend Tennessee Code Annotated, Title 4; Title 5; Title 6; Title 7; Title 49 and Title 68, relative to public facilities”. The purpose of this bill was to harm people who are transgender.

Here is what SB 1124 said:

SECTION 1. Tennessee Code Annotated, Title 68, Chapter 120, Part 1, is amended by adding the following as a new section:

(a) A public or private entity or business that operates a building or facility open to the general public and that, as a matter of formal or informal policy, allows a member of either biological sex to use any public restroom within the building or facility shall post notice of the policy at the entrance of each public restroom in the building or facility.

(b) Signage of the notice must be posted in a manner that is easily visible to the person entering the public restroom and must meet the following requirements:

(1) Be at least eight inches (8″) wide and six inches (6″) tall;

(2) The top-one third (1/3) of the sign must have a background color of red and state “NOTICE” in yellow text, centered in that portion of the sign;

(3) The bottom two-thirds (2/3) of the sign must contain in boldface, block letters the following statement centered on that portion of the sign:

THIS FACILITY MAINTAINS A POLICY OF ALLOWING THE USE OF RESTROOMS BY EITHER BIOLOGICAL SEX, REGARDLESS OF THE DESIGNATION ON THE RESTROOM

(4) Except as provided in subdivision (b)(2), have a background color of white with type in black; and

(5) Be located on a door to which the sign must be affixed or have its leading edge located not more than one foot (1′) from the outside edge of the frame of a door to which the sign must be affixed.

(c) If an entity or business is notified that it is not in compliance with this section, the entity or business has thirty (30) days in which to comply before any action is taken against the entity or business.

(d) As used in this section:

(1) “Policy” means the internal policy of a public or private entity or such policy as the result of a rule, ordinance, or resolution adopted by an agency or political subdivision of this state; and

(2) “Public restroom”:

(A) Includes a locker room, shower facility, dressing area, or other facility that is:

(i) Open to the general public;

(ii) Designated for a specific biological sex; and

(iii) Excludes a unisex, single-occupant restroom or family restroom intended for use by either biological sex.

SECTION 2. This act takes effect July 1, 2021, the public welfare requiring it.

What does this really mean?

There’s a whole lot of willful ignorance and cruelty to unpack here. I’m going to start by critiquing the sign that the Tennessee legislature wanted to force businesses to post on bathrooms doors. The top part of the sign must be red, and the word NOTICE on that part of the sign must be yellow.

Those colors, when put on a sign, typically indicates that there is something dangerous nearby (or past the point of where the sign is located). The purpose of forcing businesses to use up printer ink to post these horrible signs on every bathroom, locker room, etc., is to sneakily cause people to subconsciously start equating people who are transgender or non-binary as “dangerous”.

That intent is further emphasized by forcing the businesses to put an awkwardly worded sentence in BOLD TEXT that is really confusing to read. “THIS FACILITY MAINTAINS A POLICY OF ALLOWING THE USE OF RESTROOMS BY EITHER BIOLOGICAL SEX, REGARDLESS OF THE DESIGNATION ON THE RESTROOM” That wording, following the “danger danger” part at the top of the sign, was designed to not only make people afraid of encountering a transgender or nonbinary person in a public bathroom, but also to make them think they would be in great danger if that happened.

That is an extremely harmful message because it could persuade a transphobic person to enact violence upon someone whom they think is in the wrong bathroom.

I’d also like to point out the part of the sign (that is in bold text) is extremely confusing. Trans women are women, and should use the women’s bathroom. Trans men are men, and should use the men’s bathroom. The sign isn’t there to protect people who are transgender, though. It’s there to rile up transphobic people in an effort to further “other” people who are not cis-gendered.

A similar type of discriminatory rules were enacted in the 1940s. Those rules were called Jim Crow laws, which were intended to cause harm to Black people. The Jim Crow laws segregated bathrooms, water fountains, and where people could sit on buses, based on whether the person was white or Black. Today’s anti-trans laws are not identical to the Jim Crow laws. However, both had the purpose of discriminating against entire groups of people simply for being who they are.

This is how the Tennessee legislators voted on SB 1124:

SB 1124 is the Senate version of the bill. HB 1182 is the House version of the bill. The primary sponsor of HB 1182 is Tim Rudd (Republican). He represents District 34. His term ends in 2022. SB 1124 was sponsored by Paul Rose. He represents District 32. His term ends in 2024. The vote on both bills is posted on the same page.

Here is who voted AYE on HB 1182:

Rebecca Alexander (R)
Charlie Baum (R)
Clark Boyd (R)
Rush Bricken (R)
Scotty Campbell (R)
Dale Carr (R)
Michele Carringer (R)
Glen Casada (R)
Scott Cepicky (R)
Mark Cochran (R)
Michael G. Curcio (R)
Tandy Darby (R)
Rick Eldridge (R)
Andrew Farmer (R)
Ron M. Gant (R)
Johnny Garrett (R)
Rusty Grills (R)
Curtis Halford (R)
Mark Hall (R)
Kirk Haston (R)
David Hawk (R)
Patsy Hazelwood (R)
Esther Helton (R)
Gary Hicks (R)
Tim Hicks (R)
John B. Holesclaw Jr. (R)
Dan Howell (R)
Bud Hulsey (R)
Chris Hurt (R)
Curtis G. Johnson (R)
Sabi ‘Doc’ Kumar (R)
Justin Lafferty (R)
William Lamberth (R)
Tom Leatherwood (R)
Mary Littleton (R)
Susan Lynn (R)
Eddie Mannis (R)
Debra Moody (R)
Jerome Moon (R)
Dennis Powers (R)
John Ragan (R)
Bob Ramsey (R)
Tim Rudd (R)
Iris Rudder (R)
Lowell Russell (R)
Jerry Sexton (R)
Paul Sherrell (R)
Robin Smith (R)
Mike Sparks (R)
Bryan Terry (R)
Todd Warner (R)
Terri Lynn Weaver (R)
Mark White (R)
Sam Whitson (R)
Ryan Williams (R)
Jason Zachary (R)
Speaker Cameron Sexton (R)

Here is who voted NAY on HB 1182:

Bill Beck (D)
Kent Calfee (R)
Karen D. Camper (D)
Jesse Chism (D)
John Ray Clemmons (D)
Barbara Cooper (D)
Vincent Dixie (D)
Bob Freeman (D)
Yusuf Hakeem (D)
G.A. Hardaway (D)
Torrey C. Harris (D)
Jason Hodges (D)
Darren Jernigan (D)
Gloria Johnson (D)
London Lamar (D)
Harold M. Love, Jr. (D)
Sam McKenzie (D)
Larry J. Miller (D)
Antonio Parkinson (D)
Jason Potts (D)
Jason Powell (D)
Johnny Shaw (D)
Mike Stewart (D)
Dwayne Thompson (D)

Here is who voted either “present” or “not voting”:

John Gillespie (R)
Pat Marsh (R)
Ron Travis (R)

Here is who voted AYE on SB 1182:

Mike Bell (R)
Janice Bowling (R)
Richard Briggs (R)
Rusty Crowe (R)
Todd Gardenhire (R)
Ferrell Haile (R)
Joey Hensley (R)
Ed Jackson (R)
Jack Johnson (R)
Becky Duncan Massey (R)
Frank S. Niceley (R)
Mark Pody (R)
Bill Powers (R)
Shane Reeves (R)
Kerry Roberts (R)
Paul Rose (R)
Steve Southerland (R)
Art Swann (R)
Dawn White (R)

Here is who voted NAY on SB 1182:

Raumesh Akbari (D)
Heidi Campbell (D)
Brenda Gilmore (D)
Sara Kyle (D)
Katrina Robinson (D)
Jeff Yarbro (D)

Here is who voted either “present” or “not voting”:

Page Walley (R)

On April 30, 2021, CNN posted an article titled: “Tennessee legislature passes bill requiring some businesses to post signs indicating inclusive bathroom policy”. It was written by Devan Cole and Veronica Stracqualursi. From the article:

Tennessee is a step away from requiring some businesses in the state to post signs indicating that they allow transgender and other non-binary people to use the bathroom in their establishment that matches their gender identity, a policy LGBTQ advocates say is “offensive and humiliating” for members of the community and could lead to harassment…
…While the legislation is reminiscent of the so-called bathroom bills a few years back — when Republican lawmakers around the country pushed to restrict trans students from using the bathrooms that corresponded to their gender identities — it doesn’t explicitly ban trans people from using the facility that matches their gender identity, but it is still harmful to trans people, LGBTQ advocates stress. They argue the signage could inadvertently lead to harassment of trans people and businesses with inclusive policies.
It also comes at a time when GOP-controlled states have been passing laws that advocates say restrict trans rights.
Tennessee’s GOP-controlled Senate passed HB 1182 on Thursday by a party-line vote of 21-4. The House previously passed the bill by a vote of 62-25 and the legislation now heads to Republican Gov. Bill Lee…
…Though the legislation doesn’t define what “biological sex” means, the term has been used by conservative lawmakers around the country to refer to one’s sex as determined at the time of birth based on their reproductive biology and genetics. While sex is a category that refers broadly to physiology, a person’s gender is an innate sense of identity. The factors that go into determining the sex listed on a person’s birth certificate may include anatomy, genetics and hormones, and there is broad natural variation in each of these categories.
For this reason, the language of “biological sex,” as used in this legislation, can be overly simplistic and misleading…

On May 17, 2021, Human Rights Campaign posted a press release titled: “Tennessee Gov. Bill Lee Signs Anti-Transgender ‘Business Bathroom Bill’ into Law”. It was written by Wyatt Ronan. From the press release:

Today, Tennessee Gov. Bill Lee signed House Bill 1182 (SB 1224) into law, a discriminatory bill that aims to prevent transgender people from using restrooms aligned with their gender identity by requiring businesses with “formal or informal” policies of allowing transgender people to use the appropriate restroom to post offensive and humiliating signage…
…HB 1182 (SB 1224) is part of the 2021 “Slate of Hate” rippling through the Tennessee state legislature.
This anti-transgender bill is the fourth discriminatory piece of legislation signed by Governor Lee this session, following SB 228 an anti-transgender sports ban, SB 1229, a sweeping anti-LGBTQ education, bill, and HB 1233, anti-transgender student bathroom bill. These anti-equality bills are being pushed by national extremist groups and peddled by lawmakers in Tennessee in an effort to sow fear and division.
The governor has not yet taken action on SB 126 (HB 1027), an unnecessary regulation of life-saving, best practice medical care for transgender youth.
Human Rights Campaign President Alphonso David issued the following statement in reaction to Gov. Lee signing HB 1182:
“Gov. Lee’s decision to sign HB 1182 will cause real harm to transgender Tennesseans. Denying transgender people the ability to access a bathroom consistent with their gender identity is degrading and dehumanizing – and can have real health and safety consequences. Gov. Lee and Tennessee lawmakers are determined to discriminate against the transgender community and roll back the clock on equality instead of focusing on real problems facing Tennesseans. To be clear – Tennessee residents will suffer economic, legal, and reputational consequences of these bills and we will hold those who are indoctrinating hate into our laws accountable.”

On May 25, 2021, News 4 Nashville posted an article titled: “Nashville DA won’t prosecute new bathroom bill”. It was written by Chuck Morris. From the article:

Nashville’s District Attorney General Glenn Funk said his office will not enforce the new bathroom equality bill signed by Tennessee Gov. Bill Lee earlier this month.
The bill requires any public or private entity or business that allows a member of either sex to use a public restroom to post a sign stating either sex, regardless of designation, can use that restroom.
“I believe every person is welcome and valued in Nashville,” Funk said in a statement. “Enforcement of transphobic or homophobic laws is contrary to those values. My office will not promote hate.”
Lee told reporters the bill promotes “equality in bathrooms”, despite the prohibition against transgender people using multi-person facilities that don’t align with their sex at birth…
…LGBTQ advocates have said the legislation is discriminatory. The Human Rights Campaign said its the first bill restricting bathroom use by transgender people signed in any state in about five years…

I posted that article in this blog post to point out that if the Nashville Attorney General has decided not to enforce the “Business Bathroom Bill”, no one else in Nashville will be able to enforce it, either. This is good news for transgender people and the businesses who welcome them. As I mentioned earlier in this blog post – everyone needs to pee.

On June 10, 2021, WKRN.com posted an article titled: “Nashville DA can refuse to enforce transgender bathroom sign law, lawyers say”. It was written by Gerald Harris. From the article:

Davidson County District Attorney Glenn Funk is not backing down on his decision not to enforce the controversial transgender bathroom sign legislation once it becomes law July 1.
This is despite backlash from Republican lawmakers including East Tennessee Representative John Ragan who said the action from Funk is “offensive.”
The law requires businesses to notify the public if their bathrooms are inclusive.
“Every person is welcomed and valued in Nashville. Enforcement of transphobic and homophobic laws is contrary to those values. My office will not promote hate,” Funk said in a letter.
Abby Rubenfeld, a Nashville Civil Rights attorney with Rubenfeld Law Office said, “General Funk’s response was completely appropriate, I mean he has limited resources, he has to make priorities about enforcement of laws and that’s just the accepted part of his job.”
There’s been continued outcry from Republican lawmaker who say it’s there job to write the laws and it’s Funk’s job to enforce them…
…It’s unclear how the law will be enforced or if any other district attorney will also refuse to enforce the law…

Here come the lawsuits

On June 25, 2021, the Tennessee American Civil Liberties Union (ACLU) posted a press release that stated the following:

The American Civil Liberties Union of Tennessee and the ACLU filed a lawsuit in federal court today challenging a new, first-of-its-kind Tennessee law that would require businesses and other entities that allow transgender people to use the restroom that matches their gender to post a government-prescribed warning sign.
The lawsuit, filed on behalf of business owners in Nashville and Chattanooga who object to the stigmatizing message they would be required to display, states that the law violates the First Amendment and asks the court for a preliminary injunction to stop enforcement of the law while the lawsuit proceeds.
“Forcing businesses to display a stigmatizing message for political expedience is unconstitutional,” said Hedy Weinberg, ACLU of Tennessee executive director. “Furthermore, by targeting the transgender community, these government-mandated signs marginalize and endanger transgender individuals. Tennessee should be embracing and protecting all Tennesseans, not passing unconstitutional discriminatory laws.”
The lawsuit was filed on behalf of Kye Sayers, owner of the Sanctuary performing arts and community center in Chattanooga, and Bob Bernstein, owner of Fido restaurant in Nashville. Both businesses have informal policies allowing customers to determine which restroom is appropriate for them, and have not had any complaints or concerns raised about their restroom policies.
“Sanctuary was founded specifically to create a safe space for transgender and intersex people and their families in a state that can be unwelcoming to LGBTQ people,” said plaintiff Kye Sayers. “I am against posting offensive signs that stigmatize and deny the existence of transgender and intersex people at our center. These signs undermine Sanctuary’s very mission and send the exact opposite of the welcoming message we try to convey in everything we do.
“As a former journalist, I believe strongly in free speech. Politicians have no right to force me to post a controversial, ideologically-motivated and inaccurate sign in my place of business,” said plaintiff Bob Bernstien. “I have worked hard to create a welcoming environment for all in the restaurants that I own, and I don’t intend to stop now.”
If the law goes into effect, any business that fails to prevent transgender and intersex people from using the restroom that most aligns with who they are would be forced to post signs with the word “NOTICE” in yellow on a red background at the top, followed by text stating “THIS FACILITY MAINTAINS A POLICY OF ALLOWING THE USE OF RESTROOMS BY EITHER BIOLOGICAL SEX, REGARDLESS OF THE DESIGNATION ON THE RESTROOM,” or face criminal charges…
…While courts have recognized that businesses can be required to display factual and noncontroversial information, they have repeatedly ruled that forcing a business owner to display a sign for the sole purpose of promoting a political viewpoint is unconstitutional…

A Copy of the lawsuit was posted by the Tennessee ACLU:

The Plaintiffs are: Bongo Productions, LLC, Robert Bernstein, Sanctuary Performing Arts LLC, and Kye Sayers

The Defendants are:

Carter Lawrence, Tennessee State Fire Marshal, in his official capacity
Christopher Bainbridge, Director of Codes Enforcement, in his official capacity
Glenn R. Funk, District Attorney General for the 20th Judicial District, in his official capacity,
and Neal Pinkson, District Attorney General for 11th Judicial District, in his official capacity

The lawsuit went to the United States District Court For the Middle District of Tennessee Nashville Division.

Here are some key portions of the lawsuit:

…Plaintiffs are Tennessee businesses and service providers and their owners. They serve the public, and provide public access to their restrooms. Plaintiffs welcome transgender customers, clients, and staff, and allow transgender people to use the restroom or facilities that accord with their gender identity.

…Plaintiffs do not want to display this notice. They do not agree with this characterization of their policies, and they do not want to convey the Tennessee General Assembly’s controversial and stigmatizing message to customers, clients, and staff.

Under newly enacted H.B. 1182/S.B. 1224, 112th Gen. Assemb., 1st Reg. Sess. … Plaintiffs – and many other businesses or public entity in Tennessee that allows transgender people to use the appropriate public restroom – will be required to post a controversial and misleading warning notice advising that “THIS FACILITY MAINTAINS A POLICY OF ALLOWING THE USE OF RESTROOMS BY EITHER BIOLOGICAL SEX, REGARDLESS OF THE DESIGNATION ON THE RESTROOM.”…

If H.B. 1182 is allowed to go into effect, Plaintiffs and all other similarly situated businesses and entities open to the public in Tennessee will be forced to either display this government-mandated warning notice, or risk being charged with a Class B misdemeanor for violating the Tennessee building code, with a maximum penalty of six months in prison or $500.

By forcing Plaintiffs to display a government-mandated warning notice with which they disagree, the Act violates the Plaintiffs First Amendment right against compelled speech.

Plaintiffs bring this action to challenge the constitutionality of the Act. Unless enjoined by this Court, the Act will take effect on July 1, 2021, irreparably harming Plaintiffs and their customers, clients, and staff, and violating Plaintiffs’ constitutional rights...

Here is a portion of the lawsuit under “Factual Allegations – Legislative History of H.B. 1182”:

…The legislative history shows that the Act is intended to apply to entities that allow transgender people to use a restroom facility that accords with their gender identity, rather than the sex they were assigned at birth.

During the legislative debates on H.B. 1182, the sole justification offered by its sponsor, Representative Tim Rudd, was that the bill was necessary to “protect [] women and children against” people who could “tak[e] advantage of policies, executive orders, or legislation [] that [] allow the ‘opposite biological sex’ to enter a [multi-occupancy] restroom, shower, or locker room.” He explained, with “new [laws] …giving transgenders [sic] more rights … I don’t want women… or children calling me next year [about] how they have been raped or molested [while using the bathroom facility.]”

During a subsequent committee meeting, Representative Rudd stated that “a woman has the right to know whether a man is going to be in her bathroom and vice versa for a man.” This too was a reference to transgender people using the restrooms that accord with their gender identity.

When questioned by other representatives about the need for this bill, Representative Rudd responded that the bill was suggested by a constituent at a fundraiser, and he felt the bill was needed because of the executive orders regarding rights for transgender people “coming out of Washington.”

There was no testimony offered in support of the bill. The committee nonetheless voted to move the bill forward.

During House floor debates on March 29, Representative Mike Stewart asked about the public policy underlying H.B. 1182. Representative Rudd once more responded that with the new executive orders and policies from Washington, it would be “good to put on notice.” He also stated that it is “shocking and a danger to people that enter a bathroom marked ‘men’ or ‘women and someone of the opposite sex is standing there, which could scare people and provoke violence.”…

Here is another key part of the lawsuit:

…Transgender people are frequent targets of harassment and face widespread discrimination in all facets of life. Being forced to use restrooms that do not align with their gender puts transgender people at greater risk of harassment or violence, and also causes psychological and physical harm.

Policies that allow transgender people to use the correct sex-designated restroom – the restroom that best matches their identity – do not legalize harassment, stalking, violence, or sexual assault. Nor do these policies change the sex-segregated nature of these facilities. In other words, allowing transgender people to use restrooms and other facilities that align with their gender identity simply ensures that everuone has access to spaces that match who they are. These policies do not permit unfettered access for anyone, regardless of sex, to spaces restricted to one sex.

Law enforcement officials and sexual assault advocates in states and cities with policies that prohibit discrimination based on transgender status, including with respect to use of single-sex facilities, have rejected the contention that these policies cause safety problems.

Plaintiffs recognize that people who are transgender may need to use the restroom while out in public, just like everyone else. Plaintiff Bongo has sex-designated restrooms and has informal policies allowing transgender people to use the restrooms that align with their gender identity. Plaintiff Sanctuary does not have sex-designated restrooms at this time, but will shortly, and intends to allow transgender people to use the restrooms that align with the sex they know themselves to be…

…In order to avoid being subject to the Act’s compelled speech requirements, Plaintiffs would need to change their policies to bar transgender people from using the restrooms that accord with their gender identity. They do not wish to do so…

…Plaintiffs do not have anyone guarding their restroom doors to ask for their birth certificates, inspect anyone’s genitals, or interrogate any other aspect of their sex. They do not even know how they would attempt to do so without gross intrusions into the privacy of their employees, customers, and clients. Yet, unless they do so, Plaintiffs and indeed all other businesses and other entities with restroom facilities open to the public throughout Tennessee will be required to display the specific sign required by the Act…

Fido has sex-designated multi-user restrooms. Mr. Bernstein is concerned that the Act’s required warning notice will create confusion for his customers, clients, and employees.

Based on the legislative history of the Act, Plaintiffs Bongo and Mr. Bernstein are reasonably concerned that the Act applies to them, because they allow all women, including transgender women, to use the women’s restroom, and all men, including transgender men, to use the men’s restroom.

Plaintiff Sanctuary has two multi-user restrooms that are not presently sex-designated. Anyone is welcome to use any of Sanctuary’s restrooms. Sanctuary intends to being operating a cafe next month, and will then have to display a sex designation on its two multi-user restrooms because such a designation will be required by municipal building codes. Sanctuary and Ms. Sayers are reasonably concerned that the Act applies to Sanctuary now because its all-gender multi-facilities are not “excluded” under the Act’s definition of covered entities.

They are also concerned that the Act will apply to Sanctuary in the future once it adds a sex designation on its multi-user restrooms. At that time, Sanctuary will allow all women, including transgender women, to use the women’s restroom, and all men, including transgender men, to use the men’s restrooms…

Here is what this lawsuit is asking the judge for:

Issue a preliminary injunction, later to be made permanent, restraining Defendants, their employees, agents and successors in office from enforcing the Act;
Enter a judgement declaring that the Act is unconstitutional under the First Amendment to the United States Constitution;
Award Plaintiffs their reasonable costs and attorney’s fees pursuant to 42 U.S.C. § 1988; and
Grant such other or further relief as the Court deems just, proper, and equitable.

On June 30, 2021, Tennessean posted an article titled: “Mike Curb joins fight against Tennessee anti-trans bathroom signage bill with federal suit”. It was written by Mariah Timms. From the article:

A contentious Tennessee bill requiring businesses to post signs if they allow transgender people to use the bathroom of their choosing is facing another attack in the courts.
Mike Curb, music industry heavy-hitter and former California lawmaker, called the law discriminatory and hostile when announcing a new federal lawsuit filed Wednesday…
…The first-of-its-kind law requires businesses to post signs about transgender-friendly bathrooms and is expected to take effect July 1. It was signed by Gov. Bill Lee in May…
…So far, legal pushback to the law has come from the business community.
The new suit, filed Wednesday in federal district court on behalf of Curb Records and the Mike Curb Foundation, joins a volley from the American Civil Liberties Union and its Tennessee chapter in the same court last week on behalf of two business owners.
They’re suing Lee, the state fire marshall Carter Lawrence, Metro Nashville Codes Director William B. Herbert IV and Davidson County District Attorney Glenn Funk.
Funk said in May he will not press charges against anyone refusing to post the signs, sparking criticism from conservative lawmakers.
Deeming the law “transphobic,” Funk said his office would not “promote hate.”…
…Violations would be misdemeanors and could lead to up to six months if jail time and a maximum fine of $500, according to Tennessee code.
“The required notice serves no legitimate or rational purpose and solves no actual problem. Instead, it seeks to conscript Tennessee businesses and other institutions to spread the State’s preferred message of fear and intolerance towards transgender people and to falsely portray them as a threat to the safety and privacy of other members of the public”, Wednesday’s lawsuit argues. “In doing so, it also forces businesses like Curb Records and many other Tennessee employers to violate federal law, which prohibits discrimination against transgender employees…

On July 10, 2021, The Tennessee Star posted an article titled: “Record Label of Popular Christian Band Sues Tennessee over Trans Bathroom Law”. It was written by Peter D’Abrosca. From the article:

The record label behind one of America’s most popular Christian bands, along with several country music artists, is suing Tennessee over the state’s new transgender bathroom signage law.
Mike Curb, former Republican lieutenant governor of California who also earns Curb Records in Nashville, have filed a federal lawsuit challenging HB 1182, which requires Tennessee businesses to post signage that says “this facility maintains a policy of allowing the use of restrooms by either biological sex regardless of the designation of the restroom” if the business intends to allow both sexes to use the same bathroom, locker room, dressing rooms, or other typically-single sex areas.
Curb and his record label are listed as the plaintiffs in the lawsuit…

A copy of the lawsuit can be read on SCRIBD. Here are some key points:

The Plaintiffs are: Curb Records Inc. and Mike Curb

The Defendants are:

William Lee, as Governor of Tennessee, in his official capacity
Carter Lawrence, as Commissioner of the Tennessee Department of Commerce and Insurance, in his official capacity
William Herbert IV, as Director of the Nashville Department of Codes and Building Safety, in his official capacity
and Glen Funk, as District Attorney General for the 20th Judicial District of Tennessee, in his official capacity

The lawsuit was filed in the United States District Court for the Middle District of Tennessee Nashville Division.

Here are some key parts of the lawsuit:

Plaintiffs Curb Records, Inc. and the Mike Curb Foundation bring this federal constitutional challenge to Tennessee Public Chapter No. 453, signed into law on May 17, 2021, and referred to herein as the “Compelled Sign Law.”… The Compelled Sign Law forces businesses and other public and private entities in Tennessee to post an inflammatory, false, offensive, and discriminatory notice on any multi-user restroom that is open to the public if the business permits transgender individuals to use that restroom based on their gender identity, just as other employees, customers, and visitors are permitted to do.

The state-mandated notice requires such businesses to falsely state that they permit the use of restrooms by “either biological sex, regardless of the designation on the restroom,” which falsely and offensively conveys that a transgender woman is not a woman and that a transgender man is not a man.

The required notice serves no legitimate or rational purpose and solves no actual problem. It instead seeks to conscript Tennessee businesses and other institutions to spread the State’s preferred message of fear and intolerance towards transgender people and to falsely portray them as a threat to the safety or privacy of members of the public. In doing so, it also forces businesses like Curb Records and many other Tennessee employers to violate federal law, which prohibits discrimination against transgender employees.

The first Amendment to the United States Constitution forbids Tennessee from compelling Plaintiffs and other private entities to express the State’s discriminatory message. And under the Constitution’s Supremacy Clause, the Compelled Sign Law is preempted by federal law and for that independent reason is void and unenforceable…

Another key part is called Enactment of the Compelled Sign Law

…HB 1182, which would become the Compelled Sign Law, was introduced in the Tennessee General Assembly on February 10, 2021. The primary sponsor was Representative Tim Rudd. The bill passed in the House of Representatives on March 29, 2021, and passed in the Senate on April 29, 2021. HB 1182 was signed into law by Governor Bill Lee on May 17, 2021…

Part of this section reiterates what the Compelled Sign Law is, and the rules about it that businesses would be forced to follow. (I’ve got that in an earlier part of this blog post).

…During a hearing on the Compelled Sign Law before the House Public Services Subcommittee, Representative Rudd stated that the bill as necessary to “protect [] women and children against” people who could “tak[e] advantage of policies, executive orders, or legislation [] that [] allow the ‘opposite biological sex’ to enter a [multi-occupancy] restroom, shower, or locker room.”

Representative Rudd further stated that with “new [laws] … giving transgenders [sic] [more] rights… I don’t want women… or children calling me next year [about] how they have been raped or molested [while using the bathroom facility]”.

During a later hearing, Representative Rudd stated that the bill was suggested by a constituent at a fundraiser, and that the bill was necessary to respond to executive orders regarding rights for transgender people “coming out of Washington”.

The Compelled Sign Law was enacted amid a flurry of hostile legislation targeting transgender people during the 2021 Tennessee legislative session. Including the Compelled Sign Law, Governor Lee signed a total of five bills into law that specifically single out transgender Tennesseans for various forms of discrimination. No other state has enacted so many bills targeting transgender people in a single legislative session.

Other Tennessee legislation targeting transgender people adopted in 2021 includes laws (1) banning gender-affirming healthcare for transgender youth, (2) prohibiting transgender students from competing in sex-specific school sports based on their gender identity, (3) authorizing lawsuits against public schools when a student, teacher, or school employee encounters a “member of the opposite sex” in a shared school restroom or changing facility, and (4) requiring school districts to notify parents of any instruction on sexual orientation or gender identity and allow them to opt their children out of such instruction.

The legislative history of the Compelled Sign Law further demonstrates that, in addition to singling out transgender people for adverse treatment, the Compelled Sign Law was not enacted to address any real problem or actual public need…

Impact of the Compelled Sign Law on Curb Records, the Mike Curb Foundation, and Businesses and Institutions that Support Fair and Equal Treatment of Transgender Persons

…Both Curb Records and the Foundation have as core values anti-discrimination and respect for diversity. Both entities seek to promote equality and inclusion for all. This includes equal treatment of transgender persons. Both entities maintain a policy of nondiscrimination based on sex and transgender status with respect to their employees, customers, and visitors.

The Compelled Sign Law stigmatizes transgender persons and encourages members of the public to view transgender persons as inferior or as a threat to their safety or privacy. It does so by requiring entities that allow transgender women to use the women’s restrooms and transgender men to use the men’s restrooms to post a false and misleading notice stating that persons of “either biological sex” are permitted to use such restrooms “regardless of the designation on the restroom”.

The Compelled Sign Law also increases the risk that transgender persons will be subjected to violence, harassment, or discrimination; and seeks to deny transgender persons full and equal access to employment and educational opportunities and places open to the public.

The Compelled Sign Law promotes the creation of a hostile climate for transgender individuals in public places including workplaces in Tennessee that maintain nondiscriminatory access to restrooms. It seeks to foster a culture of fear, hostility, and rejection of transgender people and to discourage businesses, schools and universities, government agencies, and other institutions to treat transgender employees, students, customers, and visitors in a fair and nondiscriminatory manner.

Curb Records and the Foundation do not wish to convey that damaging and intolerant message to their employees, customers, visitors, or to the general public at large, and they do not wish for their facilities to be commandeered by the State to spread that message.

The Compelled Sign Law interferes with Curb Records and the Foundation’s businesses and charitable interests and risks driving away customers and visitors that they want to attract by forcing them to convey a message that conflicts with their corporate values of inclusion, diversity, equality, and respect for all people…

Here is what the plaintiffs are asking the Judge for:

To declare the Compelled Sign Law violates the First Amendment of the United States Constitution, both facially and as applies to Plaintiffs, and may not be enforced by Defendants and/or any other Tennessee state and/or local official.
Declaring that the Compelled Sign Law is preempted by federal law and therefore is void under the Supremacy Clause, U.S. Const. art. VI, cl. 2, and may not be enforced by Defendants and/or any other Tennessee state and/or local official.
Declaring that the Compelled Sign law violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, both facially and as applied to Plaintiffs, and may not be enforced by Defendants and/or any other Tennessee state and/or local official.
Preliminarily and permanently enjoining enforcement of the Compelled Sign Law by Defendants; their officers, employees and agents; and all individuals under any Defendant’s supervision, direction, or control; and all persons acting in concert or participation with any Defendant.
Awarding Plaintiffs their costs, expenses, and reasonable attorneys’ fees according to 42 U.S.C. 1988 and any other applicable laws; and
Granting such other and further relief as the Court deems just and proper.

On July 7, 2021, GLBTQ Legal Advocates and Defenders (who are defending Curb Records, Inc. and Mike Curb Foundation), filed for a motion for preliminary injunction. It was sent to Chief Judge Crenshaw and Magistrate Judge Holmes. From the motion:

Plaintiff’s Curb Records, Inc. (“Curb Records”) and Mike Curb Foundation (“the Foundation”) move this Court to preliminarily enjoin enforcement of Tennessee Public Chapter No. 453, which they refer to as the “Compelled Sign Law” or “the Law.”… The Law requires all businesses and other entities with restrooms open to the public with formal or informal policies that allow transgender people to use the restroom that accords with their identity to post a stigmatizing and demeaning warning sign stating: “NOTICE: THIS FACILITY MAINTAINS A POLICY OF ALLOWING THE USE OF RESTROOMS BY EITHER BIOLOGICAL SEX, REGARDLESS OF THE DESIGNATION ON THE RESTROOM.”…

The Compelled Sign Law forces Plaintiff’s businesses to post highly visible red and yellow signs in conspicuous locations that express a message that is the opposite of the welcoming and inclusive message they wish to express to everyone, including to any transgender employees and customers… Instead, the law compels Curb Records and the Foundation to publicly endorse a climate of fear and non-acceptance of transgender people that contradicts the companies’ values. In doing so, the Compelled Sign Law violates settled First Amendment law and, unless enjoined, will cause Plaintiffs to suffer irreparable harm to their business interests and to their fundamental right not to be compelled by the government “to speak a particular message.”…

…The Compelled Sign Law also puts Plaintiff Curb Records as an employer subject to Title VII in the position of being forced to violate federal law. Curb Records must comply with Title VII’s prohibition against discrimination against any transgender people… As such, Curb Records must, and does, permit any transgender workers to use restrooms consistent with their gender identity. But if Curb Records complies with the Law by posting required signage, it will violate Title VII by subjecting any transgender workers to disparate treatment and to a hostile work environment. Under settle law, when a state law conflicts with a federal law, as the Compelled Sign Law does here, federal law controls, and the state law may not be enforced…

…Plaintiff Curb Records asks this Court to enjoin enforcement of the Compelled Sign Law to avoid the serious penalties that would result from its enforcement…

…Defendants will suffer no injury from an injunction. An injunction will merely maintain the status quo. The state has no compelling interest in enforcing the Compelled Sign Law by requiring anyone, including Plaintiffs, to post misleading and discriminatory notices on the public restrooms of businesses…

Here is Judge Aleta A. Trauger’s decision on the case filed by Tennessee’s ACLU: (on July 9, 2021)

…The State of Tennessee has enacted a law ordering the plaintiffs to say something that they do not wish to say, in furtherance of a message they do not agree with. The plaintiffs challenge that law on the basis that the First Amendment typically does not permit such a mandate unless it is narrowly tailored to satisfy a compelling government purpose. Because the plaintiffs are likely to succeed on their challenge to that law and because allowing the law to be enforced while this litigation proceeds would harm them irreparably, the court will grant a preliminary injunction against the law’s enforcement….

Here is another key part of the decision:

…As the court has held, each of the factors guiding the decision to grant a preliminary injunction favors granting such an injunction here. The plaintiffs are likely to succeed on the merits; if they are not granted a preliminary injunction now, they will be harmed in a way that cannot be repaired; and requiring the State of Tennessee to abide by the U.S. Constitution, sooner rather than later, vindicates the public interest in rule by law and the acceptance by States, of constitutional government. The court, therefore, has little difficulty concluding that the preliminary injunction should issue…

On July 9, 2021, NBC News posted an article titled: “Judge blocks Tennessee’s transgender bathroom sign law”. It was written by Jo Yurcaba. From the article:

A federal judge blocked a Tennessee law that required businesses to post a notice if they allow transgender people to use bathrooms that match their gender identity.
Two weeks ago, the American Civil Liberties Union filed a lawsuit on behalf of two business owners – who own Sanctuary, a performing arts and community center in Chattanooga, and Fido, a restaurant in Nashville, among other businesses – in an effort to block the law from taking effect July 1.
Judge Aleta A. Trauger of the U.S. District Court for the Middle District of Tennessee granted a preliminary injunction against the law while litigation proceeds.
“Restaurants and performing spaces are businesses, but that is not all they are; they are also among the most important physical locations in which communities – so often consigned, in this era, to electronic space – can gather and grow together in a manner rooted in a particular neighborhood, in a particular city, in a particular state,” Trauger wrote.
“The plaintiffs have presented evidence that they have strived to be welcoming spaces for communities that include transgender individuals and that the signage required by the Act would disrupt the welcoming environments that they wish to provide,” Trauger continued. “That harm would be real, and it is not a harm that could simply be remedied by some award at the end of litigation.”…
…The suit is one of two filed against the law. The other was filed last week by Mike Curb, a Nashville record label owner, who is represented by GLBTQ Legal Advocates and Defenders…

This was a big win for one of the court cases that was challenging the “Compelled Sign Law”. The other case has not yet been granted an injunction. It is unclear to me whether or not the preliminary injunction can be applied to both cases. In a state like Tennessee, which has passed a multitude of laws that are harmful to people who are transgender – it is good to see a win against the “Compelled Sign Law”.

Tennessee’s Bathroom Bill was Blocked is a post written by Jen Thorpe on Book of Jen and is not allowed to be copied to other sites.

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