NASHVILLE - The American Civil Liberties Union of Tennessee and the national ACLU sued in federal court Friday to block a first-of-its-kind state law requiring warning signs at businesses that allow transgender people to use the restroom of their choice.
The lawsuit was filed on behalf of two business owners, one in Chattanooga and one in Nashville, who say they object to being forced by the government to post "stigmatizing signs."
The plaintiffs say the new "bathroom bill" law, signed by Gov. Bill Lee on May 17 and slated to take effect July 1, violates the First Amendment to the U.S. Constitution by compelling speech. They ask the court for a preliminary injunction to halt enforcement while the lawsuit proceeds.
As first reported by the Times Free Press, the law subjects violators to a Class B misdemeanor imposing penalties of up to six months in jail and up to $500 in fines if business owners or managers fail to install the warning signs within 30 days after being cited.
"Forcing businesses to display a stigmatizing message for political expedience is unconstitutional," said Hedy Weinberg, ACLU of Tennessee executive director, in a statement. "Furthermore, by targeting the transgender community, these government-mandated signs marginalize and endanger transgender individuals. Tennessee should be embracing and protecting all Tennesseans, not passing unconstitutional discriminatory laws."
The lawsuit was filed on behalf of Kye Sayers, owner of the Sanctuary Performing Arts and Community center in Chattanooga, and Bob Bernstein, owner of Fido restaurant in Nashville.
Both business owners say they have informal policies allowing customers to determine which restroom is appropriate for them and have not had any complaints or concerns raised about their restroom policies.
"Sanctuary was founded specifically to create a safe space for transgender and intersex people and their families in a state that can be unwelcoming to LGBTQ people," Sayers said in the ACLU-Tennessee news release. "I am against posting offensive signs that stigmatize and deny the existence of transgender and intersex people at our center."
Sayers said the signs "undermine Sanctuary's very mission and send the exact opposite of the welcoming message we try to convey in everything we do."
Bernstein said that as a former journalist, "I believe strongly in free speech. Politicians have no right to force me to post a controversial, ideologically-motivated and inaccurate sign in my place of business. I have worked hard to create a welcoming environment for all in the restaurants that I own, and I don't intend to stop now."
In a statement to the Times Free Press on Friday, Sen. Paul Rose, R-Covington, the legislation's Senate sponsor, wrote "these days it seems the ACLU is more concerned about advancing the left's woke agenda than defending anyone's civil liberties. This law protects the rights of all people using restrooms in Tennessee.
"There was nothing discriminatory about this bill, either in intent or in execution. Period," Rose added.
Samantha Fisher, spokeswoman for Tennessee Attorney General Herbert Slatery, said, "We will defend state law but will not comment further on pending legislation."
Rep. Tim Rudd, R-Murfreesboro, the House sponsor, said in a statement, "The law also does not alter, limit or affect a business or a person's free speech. The law does not require property owners to guard the entrance to a restroom, ascertain whether or not someone is transgender, nor prohibit anyone from entering or using restroom facilities. The law is in fact very limited in scope. It simply requires a warning sign to be placed at the entrance of a restroom that allows the opposite biological sex to enter that has multiple stalls and allows multiple people in at the same time. Nothing more than that. Women and parents of a female child have a right to know if a man could be waiting on them in a restroom. They also have a right to know if a property owner's policies could give cover to sexual predators waiting to pray upon women and children."
The law would affect businesses allowing patrons, either formally or informally, to use a multiple-person restroom that does not align with their gender at birth. Such businesses would be mandated to post signs with the letters of the word "NOTICE" in yellow, followed by text stating, "THIS FACILITY MAINTAINS A POLICY OF ALLOWING THE USE OF RESTROOMS BY EITHER BIOLOGICAL SEX, REGARDLESS OF THE DESIGNATION ON THE RESTROOM."
Once cited, businesses, governments, nonprofit groups and other entities would have 30 days to install the signs or risk sanctions.
In late May, Davidson County District Attorney Glenn Funk said he would not prosecute anyone under the new law, triggering an angry backlash from some Republican lawmakers.
In a statement, Rose Saxe, deputy project director of the ACLU's Jon L. Stryker and Slobodan Randjelovi LGBTQ & HIV Project, said "transgender people frequently face discrimination and harassment in all facets of life, including being assaulted or harassed in restrooms. This law encourages such violence."
The lawsuit is intended "to ensure that transgender and intersex people are able to go about their daily lives and use the restroom as needed just like anyone else," Saxe added.
The ACLU says that while courts have recognized that businesses can be required to display factual and noncontroversial information, they have "repeatedly ruled that forcing a business owner to display a sign for the sole purpose of promoting a political viewpoint is unconstitutional."
"The bottom line is that government is not allowed to compel anti-trans speech, period," Saxe said.
The lawsuit, Bongo Productions LLC et al v. Lawrence et al, was filed in the U.S. District Court for the Middle District of Tennessee.
Sayers said the legislature this year approved a "string of bills" aimed at the LGBTQ community, mostly transgender people.
There were five bills in all, dubbed the "slate of hate" by critics ranging from the Tennessee Equality Project and Nashville LGBT Chamber to the national Human Rights Campaign. All were signed into law by Lee.
Besides the business bathroom measure, other measures are:
> Senate Bill 1229/House Bill 529: Also sponsored by Rose, the law requires school districts to notify parents or legal guardians of students attending a Tennessee school 30 days before "commencing instruction of a sexual orientation curriculum or gender identity curriculum" and allow the parents to opt the student out.
> House Bill 3/Senate Bill 228: Sponsored by Rep. Scott Cepicky, R-Culleoka, and Sen. Joey Hensley, R-Hohenwald, the law would ban transgender athletes from participating in team sports consistent with their gender identity.
> Senate Bill 126/House Bill 1027: It prohibits a health care professional from prescribing hormone treatment to address issues for "prepubertal minors" except in cases of growth deficiencies or other diagnoses "unrelated to gender dysphoria or gender incongruency." Sponsored by Senate Speaker Pro Tem Ferrell Haile, R-Gallatin, and Rep. Sabi Kumar, R-Springfield, it was viewed as a less draconian approach than one sought by some of their GOP colleagues.
> Senate Bill 1367/House Bill 1233: Sponsored by Senate Judiciary Chairman Mike Bell, R-Riceville, it allows public schools to be sued if officials allow transgender students, teachers and staff to use multi-person bathrooms, locker rooms or changing facilities that don't match the gender listed on their birth certificates. It requires schools to make "reasonable accommodations" for transgender students by providing them alternative facilities such as single-occupant or faculty restrooms.
Sen. Todd Gardenhire, R-Chattanooga, who supported the school bathroom bill, told the Times Free Press in May, "People that were born a certain sex ought to respect everybody else and observe the bathrooms as we have them set up. And just because somebody thinks they're something doesn't mean they are something."
Contact Andy Sher at asher@timesfreepress.com or 615-255-0550. Follow him on Twitter @AndySher1.