Tennessee law mandating transgender bathroom use signage ‘unconstitutional’, lawyer says

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NASHVILLE, Tenn. (WKRN) – This week, Governor Bill Lee signed a bill requiring signs inside any public businesses with “inclusive” bathrooms. Opponents of the measure are calling it an attack on transgender individuals and businesses.

The “bathroom bill” makes Tennessee the first state to mandate signs in businesses that allow transgender individuals to use a multi-person bathroom.

“You’re opening a business up for harassment, you’re opening people up for harassment,” said Representative Gloria Johnson (D-Knoxville).

“The bill is specific about what it has to say, what the sign says exactly tells you what color, what everything, what size this sign is going to be and so it compels a business to put the sign out with certain speech so it is actually forced speech,” said Johnson.

The sign must say:

“This facility maintains a policy of allowing the use of restrooms by either biological sex, regardless of the designation on the restroom.”

Landlords will be required to fund the signs.

Abby Rubenfeld, an attorney with Rubenfeld Law Office in Nashville said the bill is a violation of the First and Fourteenth Amendment rights of transgender individuals.

“It’s compelling speech, which is fundamentally against the American constitution — Amendment 1 the government cannot compel speech, but they’re going to tell me as an employer I have to put up a certain sign about who can use what bathroom? I don’t think so,” Rubenfeld said.

While the bill’s sponsor, Representative Tim Rudd (R-Murfreesboro) said the goal is to protect children, Rubenfeld said there’s no evidence supporting the need for a law of this nature.

“The government has to have at least a rational basis for making a distinction and there’s no rational basis for making this distinction it’s just to humiliate and hurt trans people,” Rubenfeld said.

A statement from the ACLU of Tennessee called the measure “unnecessary,” and “yet another attack on transgender individuals.”

“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. Forcing businesses to make statements that encourage discrimination against trans people is unconstitutional, and we are prepared to challenge this law in court. Any businesses that are affected by this law should contact us at http://bit.ly/gethelpACLUTN.”

News 2 reached out to Governor Lee’s office on if he stands by the constitutionality of the bathroom signage bill and, as of Wednesday afternoon, has not heard back.

Lee signed the bill on Monday, a few days after quietly signing another controversial piece of legislation into law. Last week, the governor signed a bill that puts public schools and districts in Tennessee at risk of lawsuits if they allow transgender students or staff to use multi-person locker rooms or restrooms, that don’t align with their sex at birth.

On Tuesday, Lee approved legislation that bans gender-confirming treatment for young minors. Tennessee becomes the second state in the United States to enact such a ban after Arkansas approved a similar version earlier this year over a veto from Republican Gov. Asa Hutchinson.

Back in March, Lee signed a bill banning transgender athletes from middle and high school sports. After the signing, he tweeted the bill will, “preserve women’s athletics and ensure fair competition.”

In April, the Republican governor signed legislation to require school districts to alert parents 30 days in advance before students are taught about sexual orientation or gender identity, including an opt-out option.

The only state to file more anti-LGBTQ proposals this year is Texas.

The Associated Press contributed to this report.

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