A federal judge has struck down a Tennessee law that requires businesses to post a red and yellow “notice” on all public restrooms allowing transgender people to use the restroom that best matches their gender.
The first law of its kind, signed by the state’s Republican governor last spring, would have required the signs to be part of the state’s building code. Businesses that refused or failed to post the signs could have faced criminal charges.
U.S. District Judge Aleta Trauger, who issued an injunction against the law last summer, said in her ruling Tuesday that the signs would not only violate business owners’ First Amendment rights, requiring them to “approve a position they do not wish to endorse,” but which they risk sowing “fear and misunderstanding.
“It would be doing a disservice to the First Amendment to judge the law for anything other than what it is: a brazen attempt to single out trans-inclusive establishments and force them to repeat a message that they reasonably believe would sow fear and misunderstanding about the very transgender Tennesseans for whom these facilities attempt to provide a semblance of a safe and welcoming environment,” Trauger said.
Supporters of the law had argued that the signs would help protect women and children from sexual predators who might use the same toilets as them. The law requires the word “NOTICE” to appear in yellow on a red background and states that the sign must be at least eight inches wide and six inches high.
The law requires that the sign read, in capital letters:
“THIS FACILITY NOW HAS A POLICY ALLOWING THE USE OF THE TOILETS BY EITHER BIOLOGICAL SEX, REGARDLESS OF THE DESIGNATION ON THE TOILETS.”
Trauger, who brushed off the sign’s “caricatural alarmist color scheme”, said there was no evidence to support the claim that such signs would prevent sexual assault.
“Although at least one key supporter of the law in the General Assembly justified its demands against the supposed risks of sexual assault and rape, there is (1) no evidence, either in the legislative record or in the record of this case, whether there is a significant problem of abuse by individuals of inclusive restroom policies for this purpose and (2) no reason to believe that, if a such a problem existed, the mandatory signs would remedy that,” she said.
State Rep. Tim Rudd (R), who sponsored the bill, dismissed the judge’s decision as politically biased and repeated unsubstantiated and transphobic claims that such signs would prevent sexual assaults.
“For a landlord to have a policy of letting a man use a woman’s bathroom without a woman knowing she could be raped or sexually assaulted is not only dangerous, but irresponsible and legally responsible on behalf of the landlord who has such a “secret policy,” his office said in a statement to HuffPost on Wednesday. “The mere sign in question does not in any way prevent, prohibit or discourage entry to the toilet or in any way impede the expression of anyone’s freedom of speech.”
Rudd said he believed the decision would be overturned on appeal to a higher court.
Tennessee business owners filed a lawsuit against the law last year. Bob Bernstein, a Nashville restaurant owner who sued with the help of the American Civil Liberties Union, celebrated Trauger’s decision in a statement Tuesday.
“As a former journalist, I strongly believe in freedom of expression,” he said. “The government cannot just force people to put up discriminatory, inaccurate and divisive posters in their workplaces. I’m glad the court found that this law violates the First Amendment.
Henry Seaton, a transgender justice advocate at the ACLU of Tennessee, said the ACLU’s work pursuing “trans justice” will continue.
“This sign law was simple cruelty – and cruelty is unfair,” he said in a statement. “We will continue our quest for trans justice to the fullest extent, and hope that the trans and non-binary community will feel relief and hope as a result of this decision.”