Judge blocks restroom sign law aimed at transgender customers


    By Sam Stockard | Tennessee Lookout |  December 10, 2021

    Historic Nashville Courthouse. (Photo: John Partipilo)
    Historic Nashville Courthouse. (Photo: John Partipilo)

    Calling it a “brazen” violation of the First Amendment, a federal judge on Friday blocked a new state law requiring businesses to post government-prescribed signs if they allow transgender customers to use restrooms matching their gender identity.


    The American Civil Liberties Union of Tennessee and ACLU filed a lawsuit in June seeking a preliminary court injunction to avert enforcement while the lawsuit moves through the legal system. It was filed on behalf of the business owners Kye Sayers and Bob Bernstein, who contend such a “stigmatizing message” would violate their First Amendment rights, according to a release from the ACLU Tennessee.


    The decision by Judge Aleta Trauger found that, “Restaurants and performing spaces are businesses, but that is not all they are; they are also among the most important physical locations in which communities – so often consigned, in this era, to electronic space – can gather and grow together in a manner rooted in a particular neighborhood, in a particular city, in a particular state. The plaintiffs have presented evidence that they have strived to be welcoming spaces for communities that include transgender individuals and that the signage required by the Act would disrupt the welcoming environments that they wish to provide. That harm would be real, and it is not a harm that could simply be remedied by some award at the end of litigation.”


    Trauger’s order stops the defendants from taking action to enforce House Bill 1182/Senate Bill 1224. Those include Tennessee Fire Marshal Carter Lawrence, Director of Code Enforcement Christopher Bainbridge, District Attorney General Glenn Funk of Metro Nashville, and District Attorney General Neal Pinkston of Hamilton County.


    State Rep. Tim Rudd, a Murfreesboro Republican who passed the legislation through the Republican-controlled Legislature this year, said Friday he “fully expected” the ACLU would find an “activist judge” to hear the case.


    “They always do. Nothing out of the ordinary. Due to the lawsuit, I’ve said all I am going to say,” Rudd said in a text message. He referred further comment to the Attorney General’s Office.


    Hedy Weinberg, ACLU of Tennessee executive director, called the law “bad for business” in the state and “harmful” to transgender residents.


    “We are glad the court saw that this law is likely unconstitutional and hope that the state gives up the wasteful effort to defend discrimination and a violation of the First Amendment,” Weinberg said in the release.


    Sayers, owner of the Sanctuary, a performing arts and community center in Chattanooga, said he is glad the court recognized forcing businesses to display signs that hurt transgender and intersex people is “unconstitutional.”


    “These signs would have damaged our businesses and the environment we have tried to create for our community, customers and staff,” Sayers said.


    Said Bernstein, owner of Nashville restaurant Fido, “I’m happy that the court stopped this invasive and decisive legislation for now and am hopeful this leads to a permanent ban of an unconstitutional violation of my freedom of speech rights.”


    Bongo Java and Bongo East, Game Point, Grins Vegetarian Café and Fido, all owned by Bernstein, have catered to the transgender community over the years, decorating specialty drinks with transgender and LGBTQ pride flag colors. Fido management never thought much about restroom use until the Legislature took action, but its informal policy was to let people use restrooms that matched their gender identity, according to the filing.


    In her order, Trauger referred to numerous cases in which the Supreme Court and its justices repeated a “classic declaration” used by the court in West Virginia State Board of Education v. Barnette, that, “if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”


    Trauger wrote, “That rule is not founded simply on an abstract love of unfettered and uncompelled speech. The First Amendment holds its privileged place in our constitutional system because, ‘whenever the federal government or a state prevents individuals from saying what they think on important matters or compels them to voice ideas with which they disagree, it undermines’ both ‘our democratic form of government’ and the very ‘search for truth’ necessary for a thriving society to persist.”


    “Because that principle retains its vitality today, and because the law at issue in this case is a brazen violation of it,” Trauger granted the plaintiffs’ request for a preliminary injunction.


    The Attorney General’s Office did not respond immediately Friday.


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