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Federal judge blasts Republicans while striking down Tennessee’s transphobic bathroom sign law

Restroom sign with trans flag sticker on top of it
Photo: Monica Helms

A federal judge struck down a Tennessee law requiring buildings to post a warning sign if they allow transgender people to use facilities matching their gender identities.

The judge’s decision blasted Republicans’ reasoning for the law as a “thin… unconvincing… public jab at transgender [people that] … violates the Constitution” and also revealed that Republicans said they never actually intended on enforcing the law to begin with.

Related: Tennessee bans trans athletes from women’s college sports

In her decision, U.S. District Judge Aleta A. Trauger, an appointee of President Bill Clinton, noted that the state’s general assembly’s 2021 law requires buildings with trans-inclusive bathroom policies to post a “garish” eight-by-six-inch red and yellow sign in bold print stating, “NOTICE: This facility maintains a policy of allowing the use of restrooms by either biological sex, regardless of the designation on the restroom.”

Any buildings that don’t comply can be given a 30-day notice to do so by the state’s fire marshal and code enforcement officers. If the building’s owners refuse to do so, they can then be charged with a Class B misdemeanor.

“It would do a disservice to the First Amendment to judge the Act for anything other than what it is: a brazen attempt to single out trans-inclusive establishments and force them to parrot a message that they reasonably believe would sow fear and misunderstanding about the very transgender Tennesseans whom those establishments are trying to provide with some semblance of a safe and welcoming environment,” Tauger wrote in her decision.

“The defendants argue that Tennessee’s law is nothing but a harmless, content-neutral rule directed at clarifying restroom signage, not a public jab at transgender Tennesseans or an endorsement of a particular vision of how gender identity should be understood,” the judge noted. “Even a cursory examination of the facts, however, reveals that the government’s defense of the law is, at best, a thin and unconvincing veneer applied to a law that does exactly what the plaintiffs say it does.”

A restaurant owner challenged the law to protect his LGBTQ customers and employees

Soon after the law was passed, Robert Bernstein, the owner of several restaurants and coffee shops, sued. He said the law violated his First Amendment rights by requiring private individuals to endorse a particular view of transgender individuals with which he and the medical community both disagree.

“[Such] speech so plainly violates the Constitution,” Trauger wrote, “that it is rare for the courts to even have to step in to enforce the prohibition against it.”

Bernstein and his restaurant management company, Bongo Productions, have tried to create a welcoming environment for the LGBTQ community — especially for the company’s trans employees and patrons — in response to the “rash of anti-transgender laws” nationwide. His businesses have an informal policy allowing people to use the restrooms that best match their gender identity.

He refused to post the newly required sign, calling it “a misleading and controversial government-mandated message that they would not otherwise display.” He then pre-emptively sued the law’s enforcers.

The judge said the law’s defenders have an over-simplified view of biological sex

Early in her decision, Trauger called the required sign’s reference to biological sex “somewhat confusing, given that few, if any, public restrooms in Tennessee make any express reference to ‘biological sex’ in their signage.” While law’s defenders said the signs simply made “a simple truthful statement of fact,” the judge said that the biological underpinnings of gender and sex are far from simple.

As part of his lawsuit, Bernstein filed an expert report by medical doctor Dr. Shayne Sebold Taylor stating that one’s “biological sex” is determined by multiple factors, including chromosomal makeup, hormones, pubertal changes, brain structures, and one’s own gender identity. That is, one’s “biological sex” isn’t simply determined by a single characteristic at birth.

The defendants didn’t refute the doctor’s findings, the judge noted. They merely said that there are multiple viewpoints on the issue.

“The warning mandated by the Act requires the plaintiffs to adopt and, by extension, endorse the government’s preferred but unambiguously contested view of how gender works,” she added. “It therefore goes far beyond merely requiring a purely factual disclosure…. The underlying message is unambiguously controversial.”

The law’s defenders admitted they never intended on enforcing it

Even more tellingly, the defendants said that Bernstein and other state businesses shouldn’t have any standing to sue because “the formal commencement of a criminal prosecution is hopefully unlikely.”

This admission is particularly damaging considering that the law’s sponsor, Republican state Representative Tim Rudd, said that the law was needed to stop “hypothetical sexual predators from taking advantage of trans-inclusive policies to assault or rape other restroom users.” When a fellow legislator asked Rudd for any proof of such a problem, he was unable to.

As such, Tennessee Republicans passed a law, ostensibly to protect people from sexual assault, and then said they didn’t really expect to enforce it. The fact that Rudd couldn’t provide any proof shows that there was no reason to pass the law in the first place, the judge wrote. Furthermore, there’s no reason to think that bathroom rapes would become rampant without the newly required signage.

“The practice of directing discussions of transgender identity back to an exaggerated specter of danger in public restrooms has been ongoing for over a decade and has surfaced across states and regions,” the judge wrote.

“The plaintiffs … have provided a methodically detailed, coherent explanation for why they find the message of the signs objectionable,” she wrote. “The defendants’ only response has been to state that they do not find the signs objectionable and do not think other people should either.”

The law tried to force businesses to promote Republicans’ view of gender

Such laws are sometimes allowed to stand if the government can prove that the law is narrowly tailored to serve compelling state interests. But the defendants failed to even do that, the judge wrote.

“The Act… does not simply require a facility to accurately disclose its [bathroom] policies; it requires the facility to voice the government’s characterization of those policies…. The clear implication of the required signage is that the regulated establishment permits any person to use any restroom—despite the fact that that is not actually what a trans-inclusive policy would necessarily entail. A business can allow a transgender man to use a men’s restroom without opening that restroom to everyone.”

The law could’ve required all businesses to disclose their public accommodation policies upon request or allowed businesses to choose their own factually accurate language for describing their policies “without a cartoonishly alarmist color scheme,” the judge wrote. But instead, Republicans chose to go with the aforementioned signage, distorting a business’ policies.

“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,” the judge concluded. “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. While those government officials have considerable power they have no authority to wish those opposing viewpoints away.”

In response to the ruling, Hedy Weinberg, ACLU of Tennessee executive director, said,  “We applaud the court for recognizing that this law violates the First Amendment and harms transgender people. Transgender individuals should be able to live their lives free of harassment and discrimination. Today’s decision ensures that the businesses who welcome them are not forced to become instruments for politicians’ discrimination.”

Bernstein replied, “As a former journalist, I believe strongly in free speech. The government can’t just force people to post discriminatory, inaccurate, and divisive signs in their places of business. I am glad that the court recognized that this law violates the First Amendment.”

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