Fowler vows to press forward on 'bathroom bill' with new Tennessee House sponsor

Fowler vows to press forward on 'bathroom bill' with new Tennessee House sponsor

January 21st, 2018 by Andy Sher in Local Regional News

David Fowler speaks at a 2013 press conference at Legislative Plaza in Nashville.

Photo by Erik Schelzig

NASHVILLE — The head of a social conservative group says he's found a new House sponsor for a bill to require the Tennessee attorney general's office to either defend school systems sued over their transgender bathroom and locker room policies or fund the costs of outside counsel.

"We have a sponsor and we'll disclose his name as soon as he's ready for us to do so," said David Fowler, president of the Family Action Council of Tennessee, on Friday. "We talked with him at length."

Rep. Gerald McCormick, R-Chattanooga, who introduced the original House bill, pulled that version to revise it but dropped his plans to sponsor the measure Thursday.

That move came after House Speaker Beth Harwell, R-Nashville, showed the former majority leader an April 2017 letter from state Attorney General Herbert Slatery's office, written to top leaders in response to similar legislation brought by another lawmaker sponsor last year.

"The letter [from the office of the attorney general] that was shown to me indicated that they felt like they could handle it," McCormick said. "That was the information I was going on" in deciding not to press forward with any legislation.

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Fowler, an attorney and former Republican senator from Signal Mountain, said smaller school systems are financially ill equipped to defend themselves from the American Civil Liberties Union and its Tennessee chapter.

He also argued the state attorney general's primary interest is in defending the state, thus he believes a law protecting local school districts to be necessary.

The proposal by Fowler has been sharply criticized by the Tennessee Equality Project, which advocates for lesbians, gays, bisexuals and transgender individuals.

In the 2017 letter cited by McCormick, then-Deputy Attorney General Paul Ney outlined specific steps Slatery's office took in 2016 to assist Sumner County school officials when the system's policies involving transgender students were challenged by the American Civil Liberties Union Tennessee based on guidance from the then-Obama administration.

That guidance by the U.S. Justice and Education departments said students' use of restrooms, locker rooms and similar facilities should be based on their gender identification, not the sex listed on their birth certificates.

ACLU-Tennessee later filed a complaint with the federal Education Department, prompting an investigation of Sumner schools' policies, which local and state officials feared could threaten federal funding.

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Referring to the old Obama directive as "unlawful" — the Trump administration later reversed it — Ney said in his letter that nonetheless "we reaffirm our commitment to protecting the interests and rights of the State and to standing behind and supporting our Tennessee school districts and their legal counsel when their lawful activities and policies are challenged."

He noted Slatery's office "stood firmly with the school district in favor of the basic privacy rights of our students" and said the existing scope of the attorney general's authority and discretion "permitted us to address the threat effectively on multiple fronts without usurping the independent judgment and interests of the school district or blurring the distinction between the roles and responsibilities of the State and the school district."

Ney outlined how Tennessee joined an 11-state coalition that filed suit in federal court in Texas to challenge the federal policy. That led to a nationwide injunction against the Obama administration's enforcement of the new policy, Ney added.

And, he said, the attorney general's office then "worked shoulder-to-shoulder" with Sumner County school leaders with regard to the federal investigation of the system by federal Education department officials.

"The role our office played illustrates the effectiveness and wisdom of how our relationship with the school districts is currently structured," Ney wrote, adding that the flexibility and discretion "we have allows us to appropriately balance our paramount responsibility as the state's litigation counsel with our prudential capability to cooperate and collaborate with non-state entities when their interests are aligned with the state's."

Ney was recently named by the Trump administration as general counsel for the U.S. Department of Defense.

Efforts to reach a Sumner County schools spokesman Friday on how much the system spent to defend itself were unsuccessful.

When read portions of Ney's letter, obtained by the Times Free Press, Fowler, an attorney and former Republican state senator from Signal Mountain, said they simply reinforce the need for the bill.

"By law the Attorney General of the state of Tennessee represents only the state of Tennessee," Fowler said. "And that's evident by the fact when schools were sued over asbestos, the Legislature had to pass a new statute to amend his duties to authorize him to represent local schools."

The state's attorney general can "advise and consult with a local school about any issue if he wants to and the emphasis on 'if he wants to,' but he cannot represent them before a court or a tribunal. Legally, he cannot," Fowler said. "If the state is not sued, then the state is not a party."

McCormick, who served with Fowler in the General Assembly, said, "I don't want to argue legal details with David Fowler because he's a qualified lawyer and I'm not. But it was to my satisfaction the Attorney General's office felt it could handle any situation that might come up."

Slatery spokesman Harlow B. Sumerford said in an email that "whether the Legislature wants to give our office additional authority is a question for the legislature, and an answer we would respect."

Sumerford said that what that assistance would look like "would depend on the individual circumstances. For instance, the circumstances surrounding Sumner County involved a federal mandate we thought was unlawful and a federal investigation contemplated that we thought was unwarranted."

Under that set of circumstances, Sumerford said, "we assisted [Sumner County] and chose to join an 11-state coalition in successfully challenging the federal action in another jurisdiction. It would be impossible to say how we would proceed on this issue in other circumstances as that would depend on the facts of each individual case."

Gresham, the Senate Education Committee chairman, said there are still ongoing conversations about what form the bill should take "so we can get the legislation just the way we need to have it. I know we've been working with the Attorney General's office for a good part of the summer."

"It's just a matter of finding the right language," she said.

In criticizing the original bill introduced by McCormick last week, Chris Sanders with the Tennessee Equality Project, the LGBT advocacy group, warned if that measure passed "there's going to be a cost, there's going to be a legal challenge obviously. And there's the risk of it interfering with federal funds.

"And," Sanders added, "I think any version of a bathroom bill is going to run into those kinds of things."

Contact Andy Sher at asher@timesfreepress.com or 615-255-0550. Follow him on Twitter @AndySher1.


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