Tennessee sued over bathroom bill that advocates say aims to 'erase' transgender kids

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Human Rights Campaign President Alphonso David says he believes conservatives are hoping anti-LGBTQ laws will help them win elections.

The Human Rights Campaign filed a lawsuit against Tennessee's school bathroom bill on Tuesday. The LGBTQ rights group claims that the state violates Title IX of the Educational Amendments of 1972, which states that people can't be discriminated against on the basis of sex in federally funded education activities and programs. The group also says the law oversteps the equal protection clause and due process clause of the U.S. Constitution.

In May, Tennessee Republican Gov. Bill Lee signed a bill, H.B. 1233, into law that would require schools to provide "reasonable accommodation" to those who, as the bill puts it, are "unwilling or unable" to use facilities that align with their sex assigned at birth. That could include a single-occupancy restroom, but it would ban trans children from using a multi-occupant bathroom corresponding with their gender. The law went into effect on July 1. 

The Human Rights Campaign is suing on behalf of two transgender students, a 14-year-old transgender boy who is referred to as A.S in the lawsuit, and a 6-year-old transgender girl who is referred to as A.B.

A.S. wasn't allowed to use the boys bathroom in seventh grade because of a school policy that forced him to use either the girls bathroom or the bathroom in the nurse's office. He eventually stopped drinking liquids to avoid using the bathroom, according to the lawsuit.

He transferred to a gender-affirming private school during the pandemic, but A.S. will begin attending a public high school again in the fall, and because of the bathroom law, his family is worried he will be back at square one and forced to use the wrong bathroom or a private bathroom that singles him out.

A.B. is two years into her social transition and will enter first grade next year at a new school, according to the Human Rights Campaign's complaint. A.B.'s parents have asked whether she will still be able to use the girls restroom, as she is used to doing, and were told that she will have to use the nurse's single-user bathroom or the boys bathroom due to the new law.

Both families are considering leaving the state as a result of the law.

Alphonso David, president of the Human Rights Campaign, told the American Independent Foundation that recent pro-LGBTQ equality court decisions bode well for the organization's lawsuit.

In June, the Supreme Court decided not to hear the case of Gloucester County School Board v. Gavin Grimm, letting a decision in favor of trans equality stand. 

A federal court also blocked West Virginia's transgender sports ban. And a federal judge filed a temporary ban of Arkansas' law prohibiting transgender youth from receiving gender-affirming care, including hormone treatments and puberty blockers, citing the Supreme Court's landmark decision last year in Bostock v. Clayton County, which said anti-LGBTQ discrimination is discrimination on the basis of sex under Title VII of the Civil Rights Act of 1964.

LGBTQ advocates, as well as the Biden administration, have said that the Bostock decision clearly provides LGBTQ nondiscrimination protections in other areas, including education. 

This isn't the only bathroom bill Tennessee enacted this year. Lee also signed a bill into law in May that forces businesses to put up signs on bathrooms letting customers know that they allow transgender people to use them. The law has been temporarily blocked by a federal judge. 

David told the American Independent Foundation:

Now we're seeing a diversity of bills that are being introduced in order to effectively stop transgender and nonbinary people from living their true selves. And in many instances, they're looking to erase the fact that they exist. When you say that you can't participate in sports consistent with your gender identity, what you're saying is that if you're a transgender girl, to play sports you have to pretend to be something that you're not. It's the same with the bathroom bill.

David added he believes that in addition to the goal of erasing transgender and/or nonbinary people from public life, the laws are intended to help conservatives win elections.

"This is tied to holding on to power by any means necessary," he said. "They realized that two-thirds of voters opposed anti-LGBTQ legislation and they are looking to mobilize a very vocal but active minority. This is tied to election season. This is tied to losing the election and hoping to win back votes in the midterm. This is looking to see if they can win back state houses."

In a piece for Politico this year on transgender sports bans, Stephen Miller, a former Trump White House senior adviser, said, "This issue will help [the] GOP win midterms."

American Principles Project, a conservative think tank, said in 2019 that it intends to use issues of transgender equality "to show Republicans how to win on these key issues."

Published with permission of The American Independent Foundation.