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The American Civil Liberties Union has filed a federal lawsuit on behalf of two business owners challenging Tennessee’s first-of-its-kind law requiring businesses and government facilities to post offensive “warning” signs notifying their customers if they allow transgender people to use multi-user facilities that align with their gender identity.
The law, passed by the legislature last month, seeks to alert the public if they might potentially encounter a transgender person in the restroom. The sign, which will include a red background and yellow text reading “Notice,” must also contain the following message: “This facility maintains a policy of allowing the use of restrooms by either biological sex, regardless of the designation on the restroom.”
Despite claiming he had “concerns about business mandates,” Gov. Bill Lee (R) signed the bill into law, even defying requests from Republican groups like the Log Cabin Republicans of Tennessee, who characterized the bill as “misguided.” Under the bill, which takes effect July 1, establishments with transgender-friendly will have to pay for the installation of signs outside their restrooms. An original version of the bill would have also required signs to be posted at the entrance of the businesses.
Under the law, business owners who refuse to post the sign within 30 days of being warned that they’re breaking the law could potentially be subject jail time. While sponsors of the bill previously claimed that the bill did not propose any fines or penalties when it was brought up for debate — which is technically true — the bill amended a chapter of existing building code law that already sets out penalties for violations, like the lack of a functioning smoke alarm or failure to conform to air conditioning regulations. Violations of that section of building code law are considered a Class B misdemeanor, meaning they are punishable by up to six months in jail and a maximum $500 fine, as the Chattanooga Times Free Press reported last month.
The ACLU’s lawsuit has been brought on behalf of Bob Bernstein, the owner of Fido restaurant in Nashville, and Kye Sayers, the owner of the Sanctuary Performing Arts and Community Cafe in Chattanooga, which was founded by members of the transgender community, and their respective businesses. It names the state fire marshal, state codes enforcement director and two district attorneys as defendants.
In the lawsuit, attorneys for the plaintiffs argue the sign infringes on the business owners’ First Amendment rights by requiring them to “on pain of criminal penalty, communicate a misleading and controversial government-mandated message that they would not otherwise display.” The lawsuit argues that the phrase “either biological sex” is “offensive to transgender and intersex people because it asserts that transgender people are not the sex they know themselves to be and ignores the existence of intersex people.”
The lawsuit also argues that the law is “not rationally related to any legitimate government interest, let alone narrowly tailored to advance a compelling government interest.”
Bernstien and Sayers say their businesses restroom policies will require them to post the signs, which they worry will offend people and drive away customers from their business, subjecting them to otherwise avoidable financial losses.
“Sanctuary was founded specifically to create a safe space for transgender and intersex people and their families in a state that can be unwelcoming to LGBTQ people,” Sayers said in a news release. ‘I am against posting offensive signs that stigmatize and deny the existence of transgender and intersex people at our center. These signs undermine Sanctuary’s very mission and send the exact opposite of the welcoming message we try to convey in everything we do.”
“As a former journalist, I believe strongly in free speech. Politicians have no right to force me to post a controversial, ideologically-motivated and inaccurate sign in my place of business,” Bernstein said in a statement. “I have worked hard to create a welcoming environment for all in the restaurants that I own, and I don’t intend to stop now.”
The law’s chief sponsor, State Rep. Tim Rudd (R-Murfreesboro), argues that the law isn’t discriminatory because it doesn’t limit businesses on which facilities they allow people to use, and allows them 30 days to come into compliance after receiving a warning. He further argues that the business owners’ concerns should be outweighed by the concerns of people who object to sharing spaces with transgender individuals.
“It’s very shocking and a danger to people if they walk into a restroom that’ marked men or women, and the opposite sex is standing there, it could scare them, it could provoke violence,” Rudd said during debate.
Samantha Fisher, spokesperson for Tennessee Attorney General Herbert Slatery, said the office “will defend state law but cannot comment further on pending litigation.”
Last month, a spokesperson for Lee’s office said that all state laws “must be upheld” when asked about the law, while the Department of Commerce and Insurance, which includes the fire marshal’s office — one of the entities tasked with enforcing the law — said it’s ‘still reviewing the legislation to determine the appropriate implementation,” according to The Associated Press.
Earlier this month, Lieutenant Governor and Senate Speaker Randy McNally (R-Oak Ridge) told reporters he doesn’t believe the sign requirement will be enforced.
“It’s my understanding initially that it didn’t contain a penalty,” McNally said. “I don’t think that individuals that don’t post a sign are going to be penalized. I think it’s like the signs about washing your hands as you come out of the bathroom. I don’t think it will be enforced.”
Nashville District Attorney Glenn Funk, who is also named as a defendant in the lawsuit, has said his office “will not promote hate” and won’t enforce the law. He argues that his office has limited resources and he has the right to exercise his own discretion when it comes to enforcing certain laws or prioritizing which violations he’ll prosecute, while Republicans claim he should be required to enforce any law they pass.
“My office is devoted to public safety, prosecuting violent crimes and supporting victims. However, this law does not accomplish those goals,” Funk said in a letter to State Rep. John Ragan (R-Oak Ridge), the chair of the House Government Operations Committee, who had demanded that Funk explain his opposition to enforcing the law. “Instead, it only dehumanizes transgender people and falsely portrays them as predators. History is blemished by far too many examples of the government openly discriminating against LGBTQ individuals.”
Hedy Weinberg, the executive director of the ACLU of Tennessee, said in a statement that the bathroom signage law is an attempt by Republican lawmakers to compel speech by business owners and stifle any dissenting views.
“Forcing businesses to display a stigmatizing message for political expedience is unconstitutional,” Weinberg said. “Furthermore, by targeting the transgender community, these government-mandated signs marginalize and endanger transgender individuals. Tennessee should be embracing and protecting all Tennesseans, not passing unconstitutional discriminatory laws.”
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