A federal judge has issued a preliminary injunction blocking a new law in Tennessee that would have required businesses and establishments that allow transgender people to use facilities matching their gender identity to post anti-transgender signage outside their restrooms.
Under the law, the signs must 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.”
Critics have argued that the signs are meant to demonize transgender people and drive away customers uncomfortable with the establishment’s restroom policies, thereby hurting the establishment’s bottom line and interfering with commerce.
If allowed to go into effect, any refusal to post the signs on their premises could have led to business owners being fined $500 and a jail sentence of up to six months.
Two business owners and their respective businesses — Kye Sayers, of the Sanctuary Performing Arts and Community Cafe in Chattanooga, and Bob Bernstein, of Fido restaurant in Nashville — enlisted the help of the American Civil Liberties Union and sued state officials in federal court, arguing that the law violates their First Amendment rights, and asking the court to block the state from trying to enforce the law while its constitutionality remains in question.
A second lawsuit challenging the law’s constitutionality has been filed in federal court by GLBTQ Legal Advocates & Defenders and the National Center for Lesbian Rights on behalf of Curb Records, an independent record label, and its charitable arm, the Mike Curb Foundation. But no decision has been issued in that case yet.
In a decision issued on Friday, U.S. District Court Judge Aleta Trauger, of the Middle District of Tennessee, issued the injunction, finding that while restaurants and performing spaces are businesses, they also serve as community gathering spaces.
In that capacity, they may seek to provide safe and welcoming areas for all members of a community, including transgender individuals.
The new law, as written, blocks those businesses that wish to serve as a gathering space from doing so, in effect compelling speech by requiring them to communicate a specific message that they may disagree with through the posting of the signs.
“The caselaw of this circuit has long recognized that a violation of a person’s constitutional rights is, in and of itself, an irreparable harm,” Trauger wrote. “In addition to that general rule, the Supreme Court has recognized that ‘[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’ The court’s conclusion that the Act very likely violates the plaintiffs’ First Amendment rights therefore mandates a finding that the plaintiffs will suffer an irreparable harm if the Act is not enjoined from enforcement.
“The irreparable harm posed by the Act, however, does not end with the abstract question of constitutionality. Restaurants and performing spaces are businesses, but that is not all they are; they are also among the most important physical locations in which communities — so often consigned, in this era, to electronic space — can gather and grow together in a manner rooted in a particular neighborhood, in a particular city, in a particular state,” she continued. “The plaintiffs have presented evidence that they have strived to be welcoming spaces for communities that include transgender individuals and that the signage required by the Act would disrupt the welcoming environments that they wish to provide. That harm would be real, and it is not a harm that could simply be remedied by some award at the end of litigation.”
Trauger went even further, explaining that the government cannot forcibly impose its own beliefs, customs, or practices on individual business owners with respect to their speech or with whom they chose to associate.
“The defendants may think that the plaintiffs should not mind displaying the required signs, but that is not their call to make. For all the plenary power that state governments have in our constitutional system, they do not have the authority to tell the plaintiffs what to feel or to tell communities of private individuals what attitudes they should shun or embrace,” she wrote. “…Because the plaintiffs’ evidence shows that the Act would be an invasion on private communities’ power to define themselves and their norms in accordance with their own consciences, the plaintiffs have more than carried their burden of showing that irreparable harm would occur absent an injunction.”
Proponents of the new law, including its lead sponsor, State Rep. Tim Rudd (R-Murfreesboro) have said the law is necessary to protect women and children from sexual predators, who they claim will take advantage of pro-transgender policies to enter intimate spaces by claiming to be transgender.
But opponents say the law sends a signal of disapproval, sanctioned by the government, towards transgender individuals, and is no different from other attempts to bar transgender people from public life.
“This law is bad for businesses in Tennessee, and most importantly, harmful to transgender people,” Hedy Weinberg, the executive director of the ACLU of Tennessee, said in a statement. “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.”
Sayers and Bernstein issued their own statements expressing relief that the law will be blocked — at least for the duration of the trial.
“I’m happy that the court stopped this invasive and decisive legislation for now and am hopeful this leads to a permanent ban of an unconstitutional violation of my freedom of speech rights,” Bernstein said.
“I am glad the court saw that forcing businesses to display a sign that hurts transgender and intersex people is unconstitutional,” Sayers added. “These signs would have damaged our businesses and the environment we have tried to create for our community, customers, and staff.”
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