A Tennessee law requiring businesses to post a notice if they allow transgender patrons to use bathrooms in line with their gender identity is facing a pair of legal challenges.
Last week, Nashville record label owner Mike Curb filed suit in federal court challenging HB 1182, the so-called bathroom equality bill, which was signed by Republican Gov. Bill Lee in May and took effect July 1. The week prior, the American Civil Liberties Union filed suit against the law on behalf of two businesses, Chattanooga’s Sanctuary Performing Arts and the Nashville coffeehouse Bongo Roasting.
The new law requires a sign, “This facility maintains a policy of allowing the use of restrooms by either biological sex regardless of the designation of the restroom,” to be posted at the entrance of single-sex public restrooms, locker rooms, dressing areas, or other facilities that are “designated for a specific biological sex ... where a person would have a reasonable expectation of privacy.”
The bill dictates the dimensions, language and even the coloring of the signage businesses must use but, according to Curb’s lawyer Bill Harbison lacks specific penalties or means of enforcement.
“The required notice serves no legitimate or rational purpose and solves no actual problem,” Curb’s suit, filed in the U.S. District Court for the Middle District of Tennessee, Nashville Division, on June 30, reads. “It instead seeks to conscript Tennessee businesses and other institutions to spread the State’s preferred message of fear and intolerance towards transgender people and to falsely portray them as a threat to the safety or privacy of other members of the public.”
In addition to his Nashville record label, Curb Records, the Grammy-winning producer operates a foundation with numerous public-facing operations, including music centers at Vanderbilt University and Belmont University, the rock ‘n’ roll pioneer Elvis Presley’s former home in Memphis, and several historic buildings on Nashville’s Music Row.
“It’s outrageous to have the government come in and force me to send such a derogatory message to my employees and customers,” Curb, who once served as the lieutenant governor of California and president of the California state Senate, said in a statement. “My grandmother Eloisa Salazar faced incredible discrimination as she grew up on the Mexico-U.S. border, and her experience shaped my family’s and my company’s values. Our foundation has been dedicated to inclusion and nondiscrimination, including for LGBT people, from day one.”
Curb slammed Lee for signing “harmful legislation … at a time when our country needs to come together more than ever before.”
His complaint lists Lee as a defendant, along with Carter Lawrence, commissioner for the Tennessee Department of Commerce and Insurance; William Herbert, director of the Nashville Department of Codes and Building Safety; and Glenn Funk, Nashville district attorney.
Neither the Tennessee governor’s office nor the office of its attorney general responded to NBC News’ requests for comment.
Harbison’s firm, Sherrard Roe Voigt & Harbison, is working on the case with Nashville attorney Abby Rubenfeld, the National Center for Lesbian Rights and GLBTQ Legal Advocates & Defenders (GLAD).
They’ve filed a motion for a temporary injunction, but Harbison told NBC News, “We’re still waiting for the state to respond.”
The ACLU filed its suit June 25 in the same federal court that Curb filed his complaint.
“It is impossible to ascertain whether or not someone is transgender by looking at them,” the ACLU suit reads. “Plaintiffs do not have anyone guarding their restroom doors to ask for their birth certificates, inspect anyone’s genitals, or interrogate any other aspect of their sex.”
In Nashville, at least, Funk said his office will not enforce the law.
“I believe every person is welcome and valued in Nashville,” he said in a statement, according to NBC 4 in Nashville. “Enforcement of transphobic or homophobic laws is contrary to those values. My office will not promote hate.”
State Rep. John Ragan, R-Oak Ridge, said Funk’s refusal should be grounds for his removal from his post.
During legislative debate, the bill’s sponsor, Rep. Tim Rudd, R- Murfreesboro, said its 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,” according to the Chattanooga Times Free Press.
While the bill itself did not specify penalties, since its passage, Rudd has claimed violators who fail to comply within 30 days of receiving a warning could face $500 fines and up to six months in jail, because HB 1182 was added to existing building code laws that treat violations as class B misdemeanors.
Arnold Myint, chef-owner and namesake drag queen of Suzy Wong’s House of Yum in Nashville said the law is based “on an ignorant mindset.”
“It saddens me to think that as much progress I’ve seen, so much attention is being put on someone’s right to use a freaking bathroom,” Myint said in an email. “I’m shocked that continues to be a focus when, as business owners, we are struggling to keep the doors open.”
David Andrews and his husband, Matt Paco, own D’Andrews Bakery & Cafe on Church Street in Nashville. While their restaurant has single-person, unisex facilities and therefore is exempt from the law, Andrews said the government has no business dictating how companies run their restrooms.
He’s also worried about the economic toll the law could have on his bakery if businesses boycott Tennessee over HB 1182, much as they did when North Carolina’s Republican Gov. Pat McCrory signed HB 2, which barred trans people from using bathrooms that aligned with their gender identity.
“Conventions are a huge driver for us, especially during the week when things tend to slow down,” Andrews said. “There could definitely be a backlash. It just seems like people are chasing a problem that doesn’t exist.”
The bathroom sign law is just the latest installment in what the Human Rights Campaign, the nation’s largest LGBTQ advocacy group, has called a “slate of hate” that has sailed through the Tennessee Legislature this spring.
In May, Lee signed a bill requiring parents be notified before sexual orientation or gender identity is included in any classroom discussion, and another allowing students to pursue legal action if they believe they shared a sex-segregated bathroom or locker room with a transgender classmate.
Activists say the new bathroom sign law is tantamount to a “Not Welcome” sign for transgender customers in Tennessee.
Human Rights Campaign President Alphonso David called the bathroom bill “degrading and dehumanizing” and said it could have serious health and safety consequences.
“Gov. Lee and Tennessee lawmakers are determined to discriminate against the transgender community and roll back the clock on equality instead of focusing on real problems facing Tennesseans,” he said in a statement.
He added that the state will undoubtedly suffer economic consequences as a result of the law. In 2017, an analysis by The Associated Press estimated North Carolina’s so-called transgender bathroom, HB2, would cost the state more than $3.76 billion in lost business over a dozen years.
“We will hold those who are indoctrinating hate into our laws accountable,” David said.
This year has been a record-breaking year for anti-transgender legislation, with more than 100 such bills introduced nationwide as of June, according to the ACLU. Eight states have already enacted trans sports bans — Florida, Alabama, Tennessee, South Dakota, Mississippi, Montana, West Virginia and Arkansas, which also passed a ban on transition-related care for minors.