Federal judge rejects Tennessee’s transgender bathroom law

A federal judge overturned a state law requiring businesses to post a government-prescribed sign if they allow transgender people to use their restrooms.

In a ruling issued Tuesday, U.S. District Court Judge Aleta Trauger determined that transgender Tennesseans and the businesses that welcome them “are real,” in spite of the viewpoints of lawmakers and government officials, and that they should be able to use the restroom of their choice without a government-required signs that violates their First Amendment rights.

Sponsored by state Rep. Tim Rudd, R-Murfreesboro, the law would have forced some businesses to put up signs saying, “This facility maintains a policy of allowing the use of restrooms by either biological sex, regardless of the designation on the restroom.” Otherwise, the business could have faced criminal charges.

“We applaud the court for recognizing that this law violates the First Amendment and harms transgender people,” said Hedy Weinberg, ACLU of Tennessee director. “Transgender individuals should be able to live their lives free of harassment and discrimination. Today’s decision ensures that the businesses who welcome them are not forced to become instruments for politicians’ discrimination.”

The challenge against the state law was filed on behalf of Fido restaurant owner Bob Bernstein, who said it would have required him to put stigmatizing messages in his Nashville business, which allows customers to decide which restroom is appropriate for them to use.

“As a former journalist, I believe strongly in free speech,” Bernstein said. “The government can’t just force people to post discriminatory, inaccurate and divisive signs in their places of business. I am glad that the court recognized that this law violates the First Amendment.”

The court granted a preliminary injunction in July 2021 blocking the law from taking effect. The ruling Tuesday struck it down permanently, according to the ACLU Tennessee.

He contended the law does not violate the Constitution or freedom of speech, nor does it prevent a property owner from setting policy on who can use restrooms.

“For a property owner to have a policy of letting a man use a woman’s restroom without a woman knowing she could be at risk of being raped or sexually assaulted is not only dangerous, but irresponsible and legally liable on behalf of the property owner that has such a ‘secret policy,’” Rudd said Tuesday. “The simple sign in question does not prevent, forbid or in any way discourage entrance to the restroom or in any way prevent anyone’s freedom of speech from being expressed.”

Rudd predicted the “meritless decision” would not stand and that it would be overturned by a “higher, less political court.”

When he introduced the act, Rudd said he was concerned about executive actions and new congressional legislation that could give transgender people more rights.

Initially, though, he suggested he didn’t consider the law to be “aimed at transgenders” but that sexual predators could “take advantage” of trans-inclusive restrooms to assault and rape other users. 

During discussion on the House floor, Rudd said he wasn’t aware of any cases the legislation would avert but explained the Legislature “shouldn’t wait for people’s rights to be abused” to potentially prevent an “attack.”

In striking down the law, Judge Trauger found that the plaintiffs “do not wish to echo the government’s preferred characterization of the trans-inclusive policies.”

The state failed to take those objections seriously, the judge wrote, and suggested the plaintiffs have “imagined an idiosyncratic, hidden undertone to the [required] signage,” which requires only a “simple truthful statement of fact … aimed at informing the public.”

Ultimately, Trauger found, “The only thing that is imaginary in this case, though, is the imagined consensus on issues of sex and gender on which the defendants seek to rely. 

“Transgender Tennesseans are real. The businesses and establishments that wish to welcome them are real. And the viewpoints that those individuals and businesses hold are real, even if they differ from the view of some legislators or government officials. While those government officials have considerable power, they have no authority to wish those opposing viewpoints away.”