Federal Judge Blocks Tennessee Transgender Bathroom Sign Law

NASHVILLE, Tenn. (CN) — A federal judge on Friday temporarily blocked a new Tennessee law requiring businesses to post signs letting patrons know if they allow transgender people to use the bathroom facilities that correspond with their gender identity.

The law, which took effect on July 1, requires businesses that allow transgender customers to use public restrooms matching their gender identity to post a sign in boldface, block letters in red and yellow: “THIS FACILITY MAINTAINS A POLICY OF ALLOWING THE USE OF RESTROOMS BY EITHER BIOLOGICAL SEX, REGARDLESS OF THE DESIGNATION ON THE RESTROOM.”

A failure to post the sign is a Class B misdemeanor, and penalties for violating the law could include a $500 fine or up to six months in jail.

The American Civil Liberties Union filed a lawsuit on behalf of the owners of a Nashville restaurant and a Chattanooga performing arts center, arguing the business owners did “not want to convey the Tennessee General Assembly’s controversial and stigmatizing message to customers, clients, and staff.”

The business owners asked the judge to issue an injunction blocking the law from being enforced while the lawsuit proceeds and to eventually declare it unconstitutional because, they argue, the government cannot force an individual or group to support a certain view, and the sign law would do just that.

The defendants — Tennessee State Fire Marshall Carter Lawrence, Director of Code Enforcement Christopher Bainbridge and two district attorneys — opposed the request to block the law from being enforced, stating an injunction would harm the state and public interest.

The act is designed as a statute of public notice, they argue.

“Just as Tennesseans have a strong interest in the effectiveness of their democratically-passed laws, they also have an interest in being accurately informed of the rules adopted by the businesses they patronize,” the defendants wrote in their response to the plaintiffs' motion for a preliminary injunction.

U.S. District Judge Aleta Trauger, a Bill Clinton appointee, disagreed in a ruling issued Friday.

She noted that even if there were a compelling argument that patrons wanted to know a business’ bathroom policy, then that purpose could be served by requiring businesses to disclose that information when asked or to keep it somewhere accessible.

“There would certainly be no need to dictate the precise language required for the notice, the precise size and location of the disclosure, or that the sign have a red-and-yellow, warning-sign color scheme, as if to say, ‘Look Out: Dangerous Gender Expressions Ahead,’" she wrote.

A spokesperson with the Tennessee Department of Commerce and Insurance, under which fall the state fire marshall and code enforcement divisions, declined to comment, citing the ongoing litigation.

District Attorneys Glenn Funk of Davidson County and Neal Pinkston of Hamilton County did not return a request for comment.

Funk has in the past said his office “will not promote hate.” Pinkston’s office has not weighed in on whether he would enforce the law, stating he “rarely makes blanket statements about how cases will be prosecuted because each case is so specific.”

The law itself is not likely to pass a strict scrutiny test, Trauger noted, which is required when a law encroaches on core constitutional rights like free speech.

One exception is if the law is “narrowly tailored to serve any compelling governmental purpose.”

While proponents of the law have justified it due to the alleged risk of sexual assaults and rape, Trauger noted there is no evidence to suggest that is an eminent danger.

“There is, in short, no plausible argument that this law would come anywhere close to surviving strict scrutiny,” she wrote.

In a statement, ACLU of Tennessee Executive Director Hedy Weinberg said, “We are glad the court saw that this law is likely unconstitutional and hope that the state gives up the wasteful effort to defend discrimination and a violation of the First Amendment.”

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