NASHVILLE - Tennessee businesses risk being charged with misdemeanor crimes punishable by fines and even jail if they ignore a new state "bathroom" law involving access for transgender patrons.
The law requires posting of warning signs outside public, multi-person restrooms that are officially designated for men or women but formally or informally allow "either biological sex" - defined as gender at birth - to use them.
The law goes into effect July 1 and has already made national news over the sign requirement.
The criminal penalty provision in House Bill 1182/Senate Bill 1224, which Republican Gov. Bill Lee signed into law last week, is not made explicit in the legislation. But Rep. Tim Rudd, R-Murfreesboro, the House sponsor, confirmed to the Times Free Press that the law carries criminal penalties.
Rudd said that was accomplished by adding into the bill a new section to Tennessee Code's existing Title 68-120 provisions that outline penalties for violations of state construction, fire, health and other codes.
Businesses, government and public entities would have 30 days to correct the issue. If they don't, they could be subject to penalties of up to six months in jail and fines of up to $500 if charged and convicted. It's the same penalty applied to people convicted of prostitution and reckless driving.
"It is a sub-reference, that anything violating this code is subbed over to another code," Rudd said in an interview in which he repeated prior assertions he made in committees and on the House floor that his bill is not targeting transgender people.
"It in no way bans them from using the restroom" if the warning sign states it is available for "either sex," Rudd said.
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The new law states that a public or private entity or business that operates a building or facility open to the general public and that, “as a matter of formal or informal policy, allows a member of either biological sex to use any public restroom within the building or facility shall post notice of the policy at the entrance of each public restroom in the building or facility.”Signs must be at least 8 inches wide and 6 inches deep and posted either on the door of a public restroom or immediately adjacent to it and be “easily visible.” The top third of the sign must have a background color of red and state “NOTICE” in yellow text. The bottom two-thirds portion must contain in boldface, block letters this statement:“This facility maintains a policy of allowing the use of restrooms by either biological sex, regardless of the designation on the restroom.”
The enforcement topic briefly came up in a March 16 meeting of the House State Committee where Rep. Darren Jernigan, D-Nashville, pressed Rudd about the mandate, asking which state department or agency "oversees whether this is being complied with or not."
Rudd said, "there is no state department overseeing this right now because there's no fine. I've tried to make this as minimal a warning as possible."
Rudd said that under the legislation "it could very well be that someone could press charges, via a DA or a sheriff to investigate."
Jernigan noted, "so there's no enforcement to it, but it could open someone up to civil liability?"
Replied Rudd, "Well, it could," but he noted, "you could put a sign up."
Rudd said the purpose is the "protection of women and children against sexual predators that could be taking advantage of policies, executive orders or legislation that may allow the opposite sex to enter a restroom, shower or locker room that allows more than one person in the facility at a time."
Among those alarmed by the law is Kye Sayers, a 26-year-old transgender businesswoman in Chattanooga who recently opened Sanctuary Cafe and Performing Arts, a venue, performance art center and community center with a planned coffee house. It's intended to be a community "safe haven" for minority communities, people of color and LGBTQ people, including teens, she said.
"No one wants to talk about our safety in these bills, but they want to talk about everybody else," said Sayers, noting that the Legislature this year approved a "string of bills" aimed at the LGBTQ community, mostly transgender people.
"It's targeted at this point," she said, adding that the business and public facilities bathroom measure "directly attacks our allies and allied businesses."
Sayers said her building has two restrooms with at least two stalls and a front restroom that is single occupancy. Single-occupancy restrooms are not affected by the law.
She condemned the law as "just another policy of fear" for a community already faced with many challenges.
"At this point, we're facing a legal battle," Sayers said, noting she plans to meet with members of her board about it and work with them and legal advocates about "fighting this in a realistic and sensible way."
Legal issues
Tennessee government is likely to have a legal challenge over the constitutionality of the law. The American Civil Liberties Union-Tennessee is already asking residents to reach out to the organization if they have concerns.
ACLU Tennessee Executive Director Hedi Weinberg said in a statement that "transgender people are members of our community, and they belong in our public spaces. This unnecessary, vague law is yet another attack on transgender individuals."
Weinberg said "forcing businesses to make statements that encourage discrimination against trans people is unconstitutional, and we are prepared to challenge this law in court."
Lee has now signed five related bills passed by his fellow Republicans, who dominate the General Assembly.
Such measures this year and in recent years have been dubbed the "Slate of Hate" by the Tennessee Equality Project, the Nashville LGBT Chamber and the national Human Rights Campaign. The groups say Tennessee has become an epicenter of such legislation this year.
Nashville LGBT Chamber CEO Joe Woolley told the Times Free Press, "We were always clear on what this bill was. We had the business community notified of it, they were horrified about it. This was supposed to be an easy bill to kill, quite honestly, because it did what it did, mandating businesses put up signs."
During Senate hearings, Sen. Paul Rose, R-Covington, who carried the companion bill, SB1224, told colleagues, "This bill simply states that if a business has a policy that allows both biological sexes to use the same multi-stall public restroom, the business should post a notice of this policy at the entrance of the restroom.
"We've worked with retailers and the business community, and they're neutral on the bill as amended," added Rose, who said nothing about criminal penalties.
It's unclear how many businesses maintain the kinds of restroom policies that would require new signs. Rudd said he knew of at least two major chains that have policies allowing employees and customers to use facilities that correspond to their gender identity. One is Target, which nearly five years ago announced it was installing gender-neutral restrooms at all its stores. Efforts to obtain a comment from Target were unsuccessful on Friday.
Chattanooga legislators
Rep. Yusuf Hakeem, D-Chattanooga, who voted against the measure, called it a "bad bill that does not have positive ramifications to it. We have to stop trying to legislate morality from 'our own perspective,' and I think that's part of what's happening."
Hakeem said majority Republicans "constantly talk about small government, and I think this is contradictory and hypocritical when it comes to that concept. And I think people need to open up and choose when they want big government and don't want big government."
Senate Finance Committee Chairman Bo Watson, R-Hixson, who voted for the bill on the floor, said he knew nothing about the measure's criminal provisions.
"I'm not sure that was in there," Watson said when asked about the criminal misdemeanor's inclusion. "I think the intent of the sponsor was the public needed to have notice if multi-use restrooms would be used [by both sexes] or not. I'll have to look at that."
Sen. Todd Gardenhire, R-Chattanooga, voted for the bill in the Judiciary Committee as did its chairman, Sen. Mike Bell, R-Riceville, as well as on the floor.
Gardenhire said he was aware of the criminal penalty, stating that "any time that a penalty is put on anybody for violating any part of the code that we pass should be a concern of those companies that know what the code says and don't follow the code. They'll have some time to make arrangements."
Bell this year sponsored another bathroom bill signed into law by Lee, HB1233/SB1367. 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.
That new law also requires schools to make "reasonable accommodations" for transgender students by providing them alternative facilities such as single-occupant or faculty restrooms.
The latest law signed by Lee has made national news as well as generated an uproar in the LGBTQ community, both in Tennessee and nationally.
All session long, LGBTQ advocates warned Tennessee Republican lawmakers were risking a national backlash and boycotts similar to those experienced by North Carolina back in 2016 after it passed into law legislation dealing with transgender students. Portions of it were repealed a year later.
The business view
Tennessee Chamber President and CEO Bradley Jackson did not respond to a request for comment about the chamber's position, actions and agreements with bill sponsors.
Jim Brown, the Tennessee director of the National Federation of Independent Businesses, said the group was neutral on the legislation.
The Human Rights Campaign has denounced the law as a "discriminatory" effort that "aims to prevent transgender people from using restrooms aligning with their gender identity by requiring businesses with 'formal or informal' policies of allowing transgender people to use the appropriate restroom to post offensive and humiliating signage."
Contact Andy Sher at asher@timesfreepress.com or 615-255-0550. Follow him on Twitter @AndySher1.