Note: This piece also appears on DailyKos.com
Update on Friday, January 13 at 8:52 am: Yesterday evening Sen. Bo Watson, R-Hixson, withdrew the Senate version of the House measure. Watson commented, "I understand Rep. Floyd's passion about the issue, but we have more pressing issues before us that we need to focus our attention on and we don't need to get sidetracked." Rep. Richard Floyd, R-Chattanooga, continues to support the measure in the House.
A new anti-transgender "bathroom bill" was filed in Tennessee's General Assembly today by a Republican state Senator. The bill "restricts access to public restrooms and public dressing rooms designated by sex to members of that particular sex." There is a monetary fine for people who violate the law. And since in Tennessee it's legally impossible to get your sex changed on your birth certificate (and only a little less impossible to get it changed on your drivers' license), this affects all transgender and gender non-conforming people.
Tennessee has been proposing and passing some of the most homophobic and transphobic bills in the country -- it is, after all, the state that passed HB600 stripping local jurisdictions of LGBT antidiscrimination provisions. There are ongoing court challenges to that law I'll be discussing soon. There's also the "license to bully" bill. And the "Don't Say Gay" bill was introduced there as well.
The response to many of those bills came too late -- HB600 is now law, and it went almost entirely unremarked upon until its passage. But this one was introduced January 10th in the House and will be introduced today in the Senate, so hopefully we can mobilize to rally against its passage fairly quickly.
The purpose of the bill is entirely unclear unless they are just trying to erase people who are transgender and stigmatize them permanently as sexual predators who want to prey on unsuspecting victims in public accommodations. The bill seems to be trying to criminalize gender variance -- not something that's unheard of. And it's obvious that there is no way to enforce this if it becomes law. They can't possibly employ bathroom police all across the state of Tennessee to make sure that someone going into a female bathroom possesses a birth certificate proving they have the requisite body parts for that bathroom and that they have had those same parts since birth.
And beyond the emotional toll that's brought on by knowing your state legislature hates you and wants to erase your identity altogether, there's also a monetary cost. When Maine attempted to pass a similar bill, state civil liberties groups spoke out against it:
Several organizations spoke against the bill, including the Maine Civil Liberties Union.
The bill puts businesses and schools in the position of "trying to figure out what someone's biological sex is and if they're wrong they open themselves up to liability," said MCLU executive director Shenna Bellows. "It places the decision on the business owner and it places them in danger of legal action from all sides."
For this and other reasons, that bill was killed. We can make sure this bill encounters a similar fate.
The text of the bill is here (PDF):
HOUSE BILL 2279
AN ACT to amend Tennessee Code Annotated, Title 68,
Chapter 15, Part 3, relative to public restrooms
and dressing rooms.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE:
SECTION 1 Tennessee Code Annotated, Title 68 , Chapter 15, Part 3, is amended by
adding the following language as a new section:
(a) As used in this section:
(1) "Sex" means and refers only to the designation of an
individual person as male or female as indicated on the individual's birth
So it seems you need a birth certificate that reflects your sex in order to comply with this bill's definition of sex, which implies that your sex, or rather what they define as your sex, is based simply on the premise that society's classification of gender as 'the reproductive organs of the body you were born into' is the appropriate way in which our laws should address sex and gender.
And adding to that, Tennessee actually has an anti-transgender birth certificate law that has been on the books since 1977 preventing a person who is transgender from matching the sex on the certificate to their sex. There are current repeal bills that have been introduced.
There seems to be some circular logic at play here. The state is, with this bill, punishing people who are transgender for not having an appropriate birth certificate -- which they're banned from obtaining. I'm not sure how people who are transgender could conceivably comply with this law. It does nothing but attempt to pretend people who are transgender do not exist.
It doesn't make a lot of sense.
2) "Public building" means a building owned or leased by the
state, any agency or instrumentality of the state or any political
subdivision of the state;
(3) "Restroom" means a room maintained within or on the
premises of any public building and made available to the public,
containing toilet facilities for use by employees or the public;
(5) "Dressing room" means a room maintained within or on the
premises of any public building, used primarily for changing clothes.
(b) Except as provided in § 68-15-303, where a restroom or dressing
room in a public building is designated for use by members of one particular sex,
only members of that particular sex shall be permitted to use that restroom or
So it creates situations where cisgender males and females get to use their respective restrooms but everyone else is left out, unless they fall into the exceptions listed in § 68-15-303.
And of course, one wonders what happens when a parent has to bring their child who happens to be of the opposite sex into a restroom. How would they choose which bathroom to use?
And look, they charge a fine for not conforming to your sex at birth:
(c) A violation of subsection (b) is a Class C misdemeanor punishable by a to a fine of fifty dollars ($50.00).
It's not a very large fine, in fact it's only fifteen dollars more than a valid state-issued birth certificate and a valid state-issued license together would cost Tennesseeans who are transgender if the law didn't ban the state's transgender citizens from obtaining one, but it stigmatizes people who are transgender for their 'gender non-conformity' no matter the dollar amount. It's not dissimilar to the state-sponsored terrorism wherein sodomy laws are left on the books in order to arrest and humiliate gay people, even when the law 'only' fines you for "committing" sodomy. And there's also laws like another piece of the statutory scheme in the state of Georgia at issue in Bowers v. Hardwick that imposes for "soliciting" sodomy. And these laws still exist and are still being enforced today, even in Texas, despite Lawrence v. Texas overturning sodomy laws in most other instances.
Both are cases of systematic destruction of a minority using structural means, usually a framework of laws that already exists and perhaps building on it. Whether it's terrorizing people who are queer or erasing people who are transgender, it is no less a structural and longstanding problem.
It has a severability clause:
SECTION 2. If any provision of this act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to that end the provisions of this act are declared to be severable.
SECTION 3. This act shall take effect upon becoming a law, the public welfare requiring
§ 68-15-303 [the exceptions to the above bill] reads:
8-15-303. Restroom Access Act.
(a) This section shall be known and may be cited as the Restroom Access Act.
(b) As used in this section:
(1) Customer means an individual who is lawfully on the premises of a retail establishment;
(2) Eligible medical condition means Crohn's disease, ulcerative colitis, any other inflammatory bowel disease, irritable bowel syndrome, or any other medical condition that requires immediate access to a toilet facility; and
(3) Retail establishment means a place of business open to the general public for the sale of goods or services.
(c) A retail establishment that has a toilet facility for its employees shall allow a customer to use that facility during normal business hours if all of the following conditions are met:
(1) The customer requesting the use of the employee toilet facility suffers from an eligible medical condition or utilizes an ostomy device;
(2) Three (3) or more employees of the retail establishment are working at the time the customer requests use of the employee toilet facility;
(3) The retail establishment does not normally make a restroom available to the public;
(4) The employee toilet facility is not located in an area where providing access would create an obvious health or safety risk to the customer or an obvious security risk to the retail establishment; and
(5) A public restroom is not immediately accessible to the customer.
(d) A retail establishment or an employee of a retail establishment is not civilly liable for any act or omission in allowing a customer to use an employee toilet facility that is not a public restroom if the act or omission meets all of the following:
(1) It is not willful or grossly negligent;
(2) It occurs in an area of the retail establishment that is not accessible to the public; and
(3) It results in an injury to or death of the customer or any individual other than an employee accompanying the customer.
(e) A retail establishment is not required to make any physical changes to an employee toilet facility under this section.
(f) A retail establishment or an employee of a retail establishment that violates subsection (c) commits a Class C misdemeanor and is only subject to a fine of not more than fifty dollars ($50.00).
(g) When requesting access to an employee toilet facility, a customer shall present to an employee of the retail establishment proof of an eligible medical condition. The proof shall take the form of a document issued by a licensed physician or the Crohn's & Colitis Foundation of America identifying the presenter of the document and citing the appropriate statutory authority.
So it seems like if you are suspected of being transgender, unless you provide documentary evidence of medical conditions that require immediate bathroom use you'll be fined for using the "wrong" bathroom were the bill to pass. That would effectively keep you from ever being able to use the bathroom without feeling uncomfortable.
The constitutionality of these types of laws is a complicated matter. The Constitution doesn't address it and the Supreme Court hasn't yet found a law of this sort unconstitutional. And while most of these state laws have been repealed, they have also been upheld as constitutional by various state supreme courts.
Here's what the ACLU has said about anti-transgender "bathroom" bills in general:
Does the law protect a transgender person's right to use the restroom consistent with his or her gender identity?
There's no clear answer because very few courts have considered this question. The Minnesota Supreme Court has ruled that even a law prohibiting gender identity discrimination does not necessarily protect an individual's desire to use a gender identity-appropriate restroom at work. In a non-workplace context, a New York appeals court has ruled that it is not sex discrimination to prevent transgender people from using gender identity-appropriate restrooms in a building housing several businesses.
Some government agencies, however, make clear that denying transgender people the right to use a gender identity- appropriate restroom violates their nondiscrimination law. The San Francisco Human Rights Commission, for example, requires businesses and public places to allow all persons to use the restroom of their gender identity so long as they have a current piece of ID that contains the gender marker that corresponds with the facility the person wants to use. Likewise, the New York City Human Rights Commission has issued regulations stating that a business that refuses to allow a transgender person to use a gender identity-appropriate restroom may be violating the city's nondiscrimination law.
Many businesses, universities and other public places are installing single-use, unisex restrooms, which alleviate many of the difficulties that transgender people experience when seeking safe restroom access.
With the country progressing in a forward direction and with several states killing these laws in their legislative bodies, it's probably time to just scrap this one. It doesn't seem to make much sense beyond expressing the desire to hurt people who are transgender and impose ridiculous costs on businesses and employers across a cash-strapped state.
But more important than money or possible loopholes that might hurt someone who is not transgender is the fact that this law was designed with the intention of inscribing anti-transgender stereotypes into state law and using them to broadly attack people who don't conform to gender norms.
Everyone should tell the TN General Assembly what they think about this bill. We can stop it in its tracks. Here is how to contact them:
Maybe if we start early on this one we'll win.
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