‘Tennessee Anti-Gay Bill’ Called|an Unconstitutional Sneak Attack

NASHVILLE (CN) - Civil rights groups sued the governor of Tennessee, claiming the recently enacted Equal Access to Intrastate Commerce Act, also known as the "Tennessee Anti-Gay Bill," violates the Constitution's guarantee of equal protection.

The plaintiffs claim the bill "was founded in prejudice and motivated by certain legislators' desire to punish the city of Nashville for enacting an ordinance" protecting gay and transgender people.

Seven named plaintiffs were joined as plaintiffs by The Tennessee Equality Project and The Tennessee Transgender Political Coalition. The lengthy complaint against Gov. Bill Haslam was filed by locally prominent civil rights attorney Abby Rubenfeld.

Lead plaintiff Lisa Howe was formerly a soccer coach for Belmont University, which is a contractor with the city of Nashville. She and her co-plaintiffs challenge the constitutionality of Tennessee House Bill 600.

"In 2010, she [Howe] reached a 'mutual decision' to leave her coaching position unexpectedly, and despite a highly successful career, immediately after sharing with her team that she and her same-sex partner were having a baby," according to the 33-page complaint in Davidson County Chancery Court.

"Plaintiff Howe's sudden departure from employment with a city contractor that did not have an anti-discrimination policy was the impetus for the Nashville anti-discrimination ordinance that led to HB 600. Plaintiff Howe is currently unemployed. HB 600 strips her of existing protections and exposes her to a heightened risk of discrimination based on her sexual orientation in seeking employment and in other arenas. ... HB 600 prevents her from obtaining assistance from her local government to redress any discrimination against her based on her sexual orientation."

Howe says that her resignation, on Dec. 2, 2010, set off a "public furor," upon which "the Metro Council, the elected officials for the metropolitan government of Nashville and Davidson County, proposed legislation to amend an existing local ordinance providing that contractors doing business with the Metropolitan Government not discriminate based on race, religion, creed, gender, national origin, color, age, and/or disability to also include sexual orientation and gender identity."

The Nashville ordinance was approved on April 8, despite opposition from a state affiliate of Focus on the Family, which "states that its mission is 'to promote and defend a culture that values the traditional family,' and describes homosexuality as a 'dangerous lifestyle that is physically and emotionally destructive,'" according to the complaint.

The opponent group, the Family Action Council, called an "urgent meeting" about the "homosexual agenda" for Jan. 12, and invited two state representative to speak, including Glen Casada, who introduced HB 600 in the Legislature "just days later," according to the complaint, which cites the Family Action Council's invitation to the meeting.

Gov. Haslam signed HB 600 into law on May 23.

"Under HB 600, local governments are now barred from enacting measures to prohibit discrimination based on any classification not enumerated in §4-21-102," the section of the Tennessee Code that defines 'Discriminatory practices,'" according to the complaint.

"In addition to preventing any municipality of Tennessee from adopting a local law that protects local citizens on any basis not covered by state law, HB 600 retroactively voids any existing ordinances, resolutions, or policies that provide such protections: 'Any such practice, standard, definition, or provision imposed or made applicable to any person by a local government prior to the effective date of this act shall be null and void.'"

The plaintiffs say these nullifications include "local school district anti-discrimination and anti-bullying policies" against students with disabilities and/or students who are or who are perceived to be gay.

State law §4-21-102 protects citizens from discrimination based on race, creed, color, religion, sex, age or national origin, but does not include sexual orientation, gender identity or disability.

The plaintiffs say supporters of HB 600 "disingenuously, and erroneously, attempted to frame the debate as a 'business issue,' suggesting that HB 600's purpose was to maintain consistency across laws impacting businesses. However, the timing, context, history, and other statements by the bill's supporters and proponents overwhelmingly demonstrate that this stated purpose was a pretext and that the actual purpose was to prevent the enactment of local laws protecting gay or transgender people."

For example, an addition to § 4-21-102 to specifically excludes transgender citizens from protection: "'Sex' means and refers only to the designation of an individual person as male or female as indicated on the individual's birth certificate."

Belying the claims that the anti-gay law is a "business issue," the plaintiffs say, many businesses, including the Tennessee Chamber of Commerce, disavowed the law upon its passage, fearing an anti-Tennessee backlash. Among the business that issued such statements, the complaint cites Nissan, Alcoa, FedEx, AT&T, Whirlpool, KPMG, UnitedHealth, and Comcast.

Former state Senator David Fowler, who spoke at the Jan. 12 meeting and is president of the Family Action Council "stated that one of the organization's goals is to prevent localities in Tennessee from adopting local laws to protect gay people," according to the complaint.

The complaint adds: "In its support of HB 600, the Family Action Council deliberately sought to appeal to irrational fears and stereotypes regarding transgender people and to portray transgender people as a threat to children. The Family Action Council's YouTube channel featured a video, uploaded on March 28, 2011, of a man in dark glasses and a baseball cap furtively following a young girl into a women's bathroom at a playground, followed by the words 'Do gender differences matter to you? ... It won't if Tennessee Cities can force 'gender expression' policies on private employers ... On April 5, Nashville's City Council will vote on such a mandate ... House Bill 600 would prohibit such mandates."

In summation, the complaint states: "As a result of HB 600's enactment, the individual gay and transgender plaintiffs in this case can no longer avail themselves of anti-discrimination protections once extended to them. Plaintiffs now face the real, immediate, and substantial risk of discrimination because of their actual or perceived sexual orientation or gender identity. Furthermore, plaintiffs are now prohibited from seeking protection from their local governments for acts of discrimination. The teacher and student plaintiffs, in particular, are prevented from advocating for ordinances or school policies to protect gay and transgender individuals, and from even attempting to get such protections passed. Meanwhile, the organizational plaintiffs are similarly prevented from advocating for important protections at the local level. For these reasons and those stated above, HB 600 deprives plaintiffs of their rights to equal protection of the laws, in violation of the Tennessee Constitution and the Constitution of the United States." 70

The plaintiffs want HB 600 enjoined as unconstitutional, and any local law struck down by it to remain in effect.

(Lead attorney Rubenfeld happens to be the sister of actor Paul Rubens, best known as Pee Wee Herman.)

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