Federal lawsuit challenges Tennessee public school transgender 'bathroom' law

Rep. Jason Zachary, R-Knoxville, sponsored the bathroom bill for schools that is being challenged by the family of a transgender third grader. (AP Photo/Mark Humphrey)

NASHVILLE - The Human Rights Campaign Foundation on Thursday filed suit in U.S. District Court in Nashville on behalf of an 8-year-old Williamson County transgender girl and her family to challenge a 2021 Tennessee law banning transgender public school students from accessing multi-occupant restrooms and other facilities consistent with their gender identity.

The suit names Williamson County Board of Education members, the system's superintendent well as the Tennessee Department of Education and its commissioner, Penny Schwinn, as defendants.

In a statement to the Chattanooga Times Free Press, Tennessee Attorney General Herbert Slatery's office said, "We are reviewing the lawsuit. No further comment."

Court filings charge the 2021 law, the Tennessee Accommodations for All Children Act, is "singling out transgender students for disfavored treatment" and "explicitly writing discrimination against transgender people into state law."

And that, the suit says, violates "the most basic guarantees of equal protection under the U.S. Constitution and Title IX," a provision of federal law that prohibits sex discrimination in education.

The suit identifies the child as "D.H.," who is entering third grade. Also listed in the suit are her mother, identified as A.H., and father, E.H.

The lawsuit says D.H. was designated "male sex at birth but knows herself to be female." D.H. began her social transition at age 6, according to the filing.

"In the first grade, the first year D.H. attended the elementary school in person while using 'she/her' pronouns, D.H. was often misgendered by teachers and bullied and harassed by students who became hostile and argumentative when she attempted to share her gender identity with them," the suit says.

A previous lawsuit also challenged the law, but it was later dropped after the child and family left Tennessee.

The law, sponsored by state Rep. Jason Zachary, R-Knoxville, and Senate Judiciary Committee Chairman Mike Bell, R-Riceville, was signed into law by Gov. Bill Lee.

It was one of five measures targeting the LGBTQ community that passed the General Assembly in 2021, one of them a transgender bathroom bill targeting businesses and threatening violators with criminal misdemeanor charges upon conviction. It was struck down in May by a federal judge in Nashville. The state is appealing.

The school law prohibits public schools from allowing transgender students, teachers and staff to use multiperson bathrooms, locker rooms or changing facilities that don't match the gender listed on their birth certificates.

The law also opens schools up to being sued for not following the law.

Other provisions require schools to make "reasonable accommodations" for transgender students who are unwilling or unable to use multioccupancy facilities by providing alternative facilities such as single-occupant or faculty restrooms.

The lawsuit says D.H. is "experiencing adjustment disorder," citing an educational plan developed according to Section 504 of the Rehabilitation Act to ensure that a child attending an elementary or secondary educational institution who has a qualifying disability receives accommodations necessary to ensure the child's academic success and access to the learning environment.

Her parents approached school administration officials to voice their desire that D.H. be "treated by her peers and teachers as a girl."

"When A.H. and E.H. met with the elementary school about how to support D.H. in her social transitioning, the elementary school initially agreed to use 'she/her' pronouns but did not want to make a public announcement to students," the lawsuit says. "Instead, the elementary school instructed D.H. to tell each of her 19 classmates individually. After two failed attempts at this one- by-one approach, D.H., was too distressed to continue trying.

"Boys in her class had become increasingly argumentative and hostile with her about her gender identity," the lawsuit states. "D.H. told her parents she was thankful for having to wear a mask for COVID-19 because it hid her face, and she even learned how to cry out of one eye so other kids would not notice."

At the beginning of second grade last year, D.H.'s parents enrolled her in an online school due to COVID-19 concerns and because she had not yet been vaccinated.

While at that school, D.H. was introduced with "she/her" pronouns. Although classes were not in-person, the school permitted D.H. to use the restroom facilities corresponding to her gender identity for any in-person event. This support of D.H.'s social transition helped alleviate some of the social stressors D.H. experienced at the elementary school, the suit says.

D.H., however, wanted to return to the elementary school to be reunited with her friends and community. So her family re-enrolled her at the elementary school in-person for the second half of second grade, beginning in January 2022.

The lawsuit says D.H.'s parents made "multiple attempts" to speak with various school administrators about D.H.'s transition and how the elementary school could best support D.H.

"By that time, however, the elementary school administration could not provide D.H. with the support she needed to complete her social transition as the School Facilities Law had come into full effect, preventing D.H. from using the restrooms corresponding with her gender identity, unlike the rest of her nontransgender classmates," the lawsuit says.

Instead, D.H. was forced to use one of four single-occupancy restroom facilities at the elementary school - each of which presented its own issues, the filing states.

"These issues included D.H. having to clean restrooms covered in human waste before using them, and being forced to out herself as transgender in front of other students or janitorial staff," the lawsuit said.

D.H.'s mother said in a statement released by the Human Rights Campaign that this situation has changed how she views the state of Tennessee.

"Years ago, I chose to move to Tennessee because it was known as the 'Volunteer State' - whose citizens care for their neighbors without hesitation - not a state that legalizes discrimination against helpless children. Now, I am embarrassed to say that I live in a state that refuses to see anything beyond my child's gender," she said.

The mother described her child as a "bright, friendly, creative, enthusiastic, little girl and is always the first kid to cheer you on if you are struggling."

By filing the lawsuit, the mother said, "I am showing my volunteer spirit - because I'm fighting to not only affirm my child's existence but also the thousands of transgender and nonbinary children who live in Tennessee."

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