Metro Weekly

Federal Judge Strikes Down Anti-Trans Restroom Sign Law

Judge finds law violates free speech rights of business owners who wish to welcome transgender customers or clients.

Fido restaurant, whose owner sued over the Tennessee bathroom signage law. – Photo: Facebook

A federal judge has struck down a Tennessee law requiring businesses and government buildings to post a sign if they allow transgender individuals to use restrooms matching their gender identity.

Under the law, signed into effect by Republican Gov. Bill Lee last year, a building that has multi-user restrooms and allows people to use facilities matching their gender identity must post an 8-inch by 6-inch sign outside each restroom reading: “This facility maintains a policy of allowing the use of restrooms by either biological sex, regardless of the designation on the restroom.”

Violators of the law who refuse to post a sign matching the exact specifications of the law — including things like background and text color, font size, and wording — could face a maximum fine of $500 or a misdemeanor charge that could result in them serving up to six months in jail.

Shortly after the law’s passage, Davidson County District Attorney Glenn Funk, who represents Nashville and its surrounding environs, announced that his office would not enforce the law by prosecuting business owners who don’t comply.

A month after the law’s passage, the American Civil Liberties Union and its Tennessee chapter filed a federal lawsuit on behalf of Robert Bernstein, the owner of Fido, a Nashville-based restaurant, alleging that the law — dubbed the “Business Bathroom Bill” by opponents — is unconstitutional because it violates’ business owners First Amendment rights by forcing them to engage in compelled speech.

In July 2021, with the help of GLBTQ Legal Advocates & Defenders and the National Center for Lesbian Rights, Curb Records and the Mike Curb Foundation filed a second lawsuit challenging the law, which is currently pending. In the complaint, Curb Records claimed that the law creates content-based regulation of speech and compels business owners to communicate a particular message through the sign — even if they do not agree with its assertions or the implicit message it sends that the presence of transgender people in restrooms poses a threat to others.

That same month, U.S. District Judge Aleta Trauger, of the Middle District of Tennessee, issued an injunction in response to the ACLU lawsuit blocking the law from taking effect. On Tuesday, Trauger ruled that the law is unconstitutional.

“It would do a disservice to the First Amendment to judge the Act for anything other than what it is: a brazen attempt to single out trans-inclusive establishments and force them to parrot a message that they reasonably believe would sow fear and misunderstanding about the very transgender Tennesseans whom those establishments are trying to provide with some semblance of a safe and welcoming environment,” she wrote in her opinion.

“…Transgender Tennesseans are real,” Trauger continued. “The businesses and establishments that wish to welcome them are real. And the viewpoints that those individuals and businesses hold are real, even if they differ from the views of some legislators or government officials. While those government officials have considerable power, they have no authority to wish those opposing viewpoints away.”

The ACLU celebrated the decision as a victory.

“We applaud the court for recognizing that this law violates the First Amendment and harms transgender people,” Hedy Weinberg, the executive director of the ACLU of Tennessee, said in a statement. “Transgender individuals should be able to live their lives free of harassment and discrimination. Today’s decision ensures that the businesses who welcome them are not forced to become instruments for politicians’ discrimination.”

Bernstein also cast the decision as a win for the free speech rights of those who don’t wish to vilify transgender people.

“As a former journalist, I believe strongly in free speech,” Bernstein said in a statement. “The government can’t just force people to post discriminatory, inaccurate, and divisive signs in their places of business. I am glad that the court recognized that this law violates the First Amendment.”

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