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Tennessee Law That Requires Labeling Transgender-Inclusive Bathrooms is Unconstitutional: Expert

tennessee governor bill lee speaking at press conference

Tennessee Gov. Bill Lee (R)

Ratcheting up a Republican-driven campaign widely dubbed the “bathroom wars,” Tennessee Gov. Bill Lee (R) on Monday signed a bill requiring any business or government building that is open to the general public to post a sign signifying if they allow transgender people to use any bathrooms, locker rooms, shower facilities, or other dressing areas.

The signing of HB1182 made Tennessee the first state in the U.S. to mandate public notice for facilities that are transgender inclusive, and the legislation will very likely be challenged in court as unconstitutional under the First Amendment.

According to the measure, the sign is required to meet several specifications concerning its location and appearance, and the text of the sign must read: “This facility maintains a policy of allowing the use of restrooms by either biological sex, regardless of the designation on the restroom.”

Additionally, the top one-third of the sign has to be red and say “NOTICE” in yellow text.

Tennessee state Rep. Tim Rudd, a Republican who co-sponsored the bill, reportedly said enforcement of the law will come from municipalities, not the state. Rudd told Time Magazine that local district attorneys will be able to seek court orders requiring non-compliant entities to put up the sign or “open the door for whatever judicial remedies the court deems appropriate.”

Tennessee-based constitutional law attorney Daniel A. Horwitz, who specializes in First Amendment litigation, said the law clearly violates constitutional prohibitions against government compelled speech.

“I looked into it,” Horwitz tweeted. “It’s unconstitutional.”

He also pointed out that the mandatory sign does not fall into First Amendment exceptions for commercial speech, which has less constitutional protections than political or artistic speech. Under Supreme Court precedent, such compelled speech—like mandatory disclosures for private products—necessitate that the government show the speech is designed to remedy “a harm that is potentially real not purely hypothetical.”

“It’s not commercial speech; it compels endorsement of a controversial, disputed viewpoint; and there is virtually no chance that the government can prove that it addresses a ‘real not purely hypothetical’ problem,” Horwitz argued.

Horwitz elaborated on the unconstitutional aspects of the law in an email to Law&Crime, saying it violated the First Amendment “likely for several reasons.”

“The law’s most straightforward flaw is that it compels private businesses to endorse a specific viewpoint—one that some people do not share—regarding a controversial topic,” he told Law&Crime. “The law does not relate or purport to relate to advertising or proposed commercial transactions, removing it from the ambit of the commercial speech doctrine, and I suspect that the government will be unable to meet its burden of proving that the law addresses a ‘real’ rather than ‘purely hypothetical’ problem, either. Instead, it seems clear that the law was a product of the Tennessee legislature’s bare desire to harm a marginalized minority group.”

The measure was also denounced by human rights advocacy groups as perniciously targeting transgender people.

“Gov. Lee’s decision to sign H.B. 1182 will cause real harm to transgender Tennesseans. Denying transgender people the ability to access a bathroom consistent with their gender identity is degrading and dehumanizing — and can have real health and safety consequences,” Human Rights Campaign President Alphonso David said in a statement to LGBTQ Nation. “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.”

David also said the bill will cause the residents of Tennessee to suffer “economic, legal, and reputational consequences” as a result.

The measure is currently scheduled to take effect on July 1, 2021.

Read the text of HB 1182 below.

Tennessee HB1182 by Law&Crime on Scribd

[image via YouTube screengrab]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.