Tennessee is first state to enact bigoted 'bathroom bill' since 2016

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Tennessee's new law punishes schools for trans-inclusive policies.

On Friday, Tennessee Republican Gov. Bill Lee signed the first "bathroom bill" to be enacted in the United States since 2016, amidst a surge of anti-LGBTQ legislation both in the state and across the nation.

Tennessee is one of four states where lawmakers are pushing the most anti-LGBTQ legislation in the country this year. In April, the Human Rights Campaign said Tennessee could end up enacting the highest number such bills, surpassing Texas, Arkansas, and Montana.

H.R. 1233, the bill Tennessee enacted on May 14, forces public schools to provide "reasonable accommodations" for teachers, students, and staff who don't wish to share multi-user bathrooms and changing rooms with transgender people. It also lets cisgender people who see transgender people in these multi-occupant spaces pursue civil litigation against a school.

Accommodations would not be made for transgender people who want to use bathrooms and changing spaces in accordance with their gender.

H.R. 1233 defines sex as "a person's immutable biological sex as determined by anatomy and genetics existing at the time of birth" and says evidence of sex includes documents that reflect the gender marker listed on someone's birth certificate.

In 2017, before Lee became governor, he was asked about why he had not declared his position on instituting a statewide bathroom policy. According to the Tennessee Star, Lee said:

Because I believe that a statewide policy on an issue like that is not in the best interest of Tennesseans. It's divisive and destructive and … that’s government intervention into areas of life that I don't think we ought to intervene.

 

I think that those are best decided locally. Those decisions are best decided locally. And that we've handled personal decisions locally like that in the past, and that's why I’m not advocating for or against a transgender bathroom bill.

Another bill sitting on Lee's desk and awaiting signature would punish businesses that have trans-inclusive bathroom policies. Businesses would have to post signs letting patrons know that transgender people were allowed to use the bathroom of their gender; advocates for LGBTQ people say requiring such signs could foster harassment of businesses.

The signs would have to read, "THIS FACILITY MAINTAINS A POLICY OF ALLOWING THE USE OF RESTROOMS BY EITHER BIOLOGICAL SEX, REGARDLESS OF THE DESIGNATION ON THE RESTROOM."

The previous "bathroom bill" enacted in the United States was North Carolina's Public Facilities Privacy and Security Act, H.B. 2, in 2016. Under the law, trans people were barred from accessing bathrooms and other facilities consistent with their gender, and all local LGBTQ nondiscrimination ordinances were invalidated.

Celebrities and businesses pushed back against the North Carolina law: PayPal killed a new operations center in the state that would have provided hundreds of jobs, the NCAA threatened to pull its events from North Carolina, and Ringo Starr canceled a concert he had been scheduled to perform there.

In 2017, North Carolina enacted a bill that repealed some provisions of the law; civil rights groups called that bill "shameful" and insufficient.

Texas tried to pass a similar bathroom bill in 2017, but the effort died after executives at dozens of companies opposed it out of concern for the financial ramifications to the state, the Texas Tribune reported.

A Human Rights Campaign April analysis of state bills shows that legislatures introduced at least 15 bills this year that do not allow transgender people to have access to locker rooms and bathrooms of their gender.

Cathryn Oakley, the state legislative director and senior counsel at the Human Rights Campaign, said the most serious threats from bathroom bills have been in Tennessee and Arkansas, where several anti-LGBTQ bills have recently been enacted.

An Arkansas bathroom bill is under review to study its potential fiscal impact and hasn't moved out of committee since April 6. Efforts in other states, such as Iowa and Minnesota, haven't gotten very far, Oakley said.

But Tennessee, which has enacted a trans sports ban as well as two pieces of legislation that make it harder for students to learn about LGBTQ people in schools, does not seem concerned about opposition from businesses, Oakley said.

Oakley said that the sports bans, which prohibit transgender girls and women from playing on the sports team of their gender, may have made it easier for states to consider more bathroom bills than they had in the past few years.

"Unfortunately, what happened through the session is that the sports bans, when they were introduced and the thought was that they would be in some ways like a test balloon to see how much outrage there still was out there about these issues," she said.

Oakley added, "And then the medical care bans started advancing, and then the bathroom bills started advancing. So I think that those bills were seen as too extreme and too outrageous and that they were unlikely to be able to succeed through the legislative process. But after a few of those sports bans, I think there is maybe this hope that maybe we actually can do this."

Published with permission of The American Independent Foundation.