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Posts Tagged ‘ACLU of Tennessee’

Federal District Judge Issues Injunction Against Tennessee Bathroom Warning-Sign Law

Posted on: July 11th, 2021 by Art Leonard No Comments

In May, Tennessee enacted a law intended to require operators of facilities with public restrooms who allow transgender people to use restrooms consistent with their gender identity to post a vividly colored large notice at the entrance to the restroom warning people about that policy.  The law went into effect on July 1.  On July 9, U.S. District Judge Aleta Trauger issued a preliminary injunction banning its enforcement while a lawsuit challenges its constitutionality in Bongo Productions v. Lawrence, 2021 U.S. Dist. LEXIS 128262 (M.D. Tenn., July 9, 2021).

Despite the lack of any reported incidents in Tennessee of problems due to transgender peoples’ public restroom usage, the Republican-controlled legislature, firmly enlisted in the current “red state” war against transgender people, passed H.B. 1182/S.B. 1224, which amends the state’s zoning laws regulating public property, to provide that any “public or private entity or business that operates a building or facility open to the general public and that, as a matter of formal or informal policy, allows a member of either biological sex to use any public restroom within the building or facility shall post notice of the policy at the entrance of each public restroom in the building or facility.”

The law requires that the notice be posted “in a manner that is easily visible to a person entering the public restroom” and must be “at least eight inches wide and six inches tall” with a red and yellow color scheme designed to attract notice, and must use the precise wording specified in the statute, with its reference to “biological sex.”

The ACLU represents Bongo Productions, a Nashville company that operates several coffeehouses and restaurants, one of which has a particular LGBT clientele and which employs several transgender people, and Sanctuary Performing Arts, which is described as “a performing arts venue, community center and safe haven located in Chattanooga” which was “founded by member of the transgender community” and which intends to operate a full-service café and thus will come under the requirements of the new law.  Both Bongo and Sanctuary already provide multi-user restrooms.  Under the zoning laws long in effect prior to the present controversy, any multiple-user restrooms have to be labeled for men or for women by words or symbols.  Sanctuary has not labeled their restrooms by gender, but will be required to do so once they open the full-service café.

The owners of these facilities argued that the new law unconstitutionally compels them to post signs and communicate messages that they object to and that many of their customers will object to.  They presented expert testimony on the unscientific and ambiguous terminology of the statute, with its reference to “biological sex,” which was sufficient to persuade Judge Trauger, who devoted several paragraphs of her opinion to the testimony of a professor from Vanderbilt University Medical Center, Dr. Shayne Sebold Taylor, who explained the complexities of human sexuality.  What seemed to most impress Judge Trauger was the evidence that asking a transgender man who is presenting as a man to use the women’s room or a transgender woman who is presenting as a woman to use the men’s room was likely to cause quite a commotion, exactly the kind of social disruption that the proponents of the legislation claim to be trying to forestall by the prescribed notices.

In order to get a preliminary injunction, plaintiffs have to show that they have standing to sue, that the controversy is ripe for judicial resolution, that they have a reasonable probability of winning their case on the merits, that they will suffer irreparable injury if the act is enforced and the government will not suffer irreparable injury if enforcement is blocked while the case is being litigated.

Judge Trauger was convinced that all the criteria were met, despite disingenuous arguments by the lawyers for the public officials who are being sued, the fire marshalls in charge of Codes enforcement and local district attorneys who would be responsible for enforcement activity.

Her opinion is really a delight to read.  For example, on the issue of standing, they argued that nobody had brought an enforcement action against the plaintiffs, and one of the local D.A.’s even told the press that he didn’t intend to enforce the statute.  “This might be quite a different case if each of the defendant officials had given the court a meaningful reason to expect that he will not enforce the Act,” she wrote.  “The defendants, however, seek to have it both ways – to pretend that no one knows how the Act will be enforced, despite the fact that, of course, they know, because they will be among the ones doing the enforcing, and they are simply keeping their plans to themselves.”  In a footnote, she noted that a Republican legislator had sought an opinion from the state’s attorney general about whether D.A. Funk could be subjected to disciplinary action or removal “for his apparent disinclination to enforce the Act” after news reports appeared stating that he would not enforce it.

As to the merits of the case, since the statute compels business owners to post signs with which they disagree, this is a content-based regulation of speech subject to strict scrutiny, which means the statute is presumed unconstitutional unless the state has a compelling interest and the law is narrowly tailored to avoid unnecessarily abridging freedom of speech.

Judge Trauger wrote that “there is simply no basis whatsoever for concluding that the Act is narrowly tailored to serve any compelling governmental purpose.  Although at least one key supporter of the Act in the General Assembly justified its requirements in relation to supposed risks of sexual assault and rape, there is (1) no evidence, in either the legislative record or the record in this case, that there is any problem of individuals’ abusing private bathroom policies intended to accommodate transgender and intersex individuals for that purpose and (2) no reason to think that, if such a problem existed, the mandated signs would address it.”

Even if there was a legitimate interest to “let patrons of a business know its bathroom policies – which the court finds doubtful – then that purpose could still be served by simply requiring businesses to disclose that information when asked or to keep it filed away somewhere accessible,” wrote the judge.  “There would certainly be no need to dictate the precise language required for the notice, the precise size and location of the disclosure, or that the sign have a red-and-yellow, warning-sign color scheme, as if to say: ‘Look Out: Dangerous Gender Expressions Ahead,’” concluding that there is “no plausible argument that this law would come anywhere close to surviving strict scrutiny.”

She also rejected the argument that the sign, which does not use the terms transgender or gender identity, was merely communicating non-controversial information.  “Courts, when considering First Amendment challenges, are permitted to exercise ordinary common sense to evaluate the content of a message in context to consider its full meaning, rather than simply robotically reading the message’s text for plausible deniability,” she wrote, asserting that “of course the signs required by the Act are statements about the nature of sex and gender and the role of transgender individuals in society.  Justice is blind, but the court does not have to play dumb.”

“On the current record,” wrote the judge, “the only way to argue that the message mandated by the Act is uncontroversial is to argue that the plaintiffs are simply lying about both the social realities they have observed and their own disagreement with the required message.  But the court sees no evidence whatsoever that the plaintiffs have failed to tell the truth about that or anything else.  To the contrary, the legislative history of the Act shows that it was devised, quite consciously and explicitly, as a direct response to social and political trends involving transgender people.  It is only now, in the context of litigation, that officials of the State suggest otherwise.”

The court concluded that the plaintiffs would suffer irreparable injury – a violation of their constitutional rights and potential harm to their businesses and the community they serve – if the public officials are free to enforce the statute.  “Because the plaintiffs’ evidence shows that the Act would be an invasion on private communities’ power to define themselves and their norms in accordance with their own consciences, the plaintiffs have more than carried their burden of showing that irreparable harm would occur absent an injunction.”  And, given the patent unconstitutionality of the statute, an injunction would not irreparably harm the state or damage the public interest.  “No legislature can enact a law it lacks the power to enact,” wrote Trager, “and the constraints on Tennessee’s power that come along with the U.S. Constitution were voluntarily assumed by the State of Tennessee by virtue of its entry into the federal system.”

She labelled the law a “brazen violation” of the concept that public officials cannot “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.”  She ordered defendants to “take no actions to enforce House Bill 1182/Senate Bill 1224.

Those who followed the campaign for marriage equality some years ago may remember that it was Judge Trauger, who was appointed to the Court by President Bill Clinton, who issued an order in 2014 that the state must recognize the same-sex marriage performed out of state for plaintiffs in an important marriage equality case.  She correctly predicted in her opinion then that the Supreme Court would eventually recognize a constitutional right to marry for same-sex couples.



Federal Court Enjoins Tennessee School District’s Censorship of Student’s Pro-Gay T-Shirt

Posted on: January 1st, 2016 by Art Leonard No Comments

U.S. District Judge Kevin H. Sharp presented an early Christmas present to Rebecca Young, a student at Richland High School in Giles County, Tennessee, awarding her a preliminary injunction against school authorities who had forbidden her from wearing a t-shirt with the slogan “Some People are Gay, Get Over It.”  Young v. Giles County Board of Education, 2015 U.S. Dist. LEXIS 170695, 2015 WL 9413877 (M.D. Tennessee, Dec. 22, 2015).

Young showed up for the first day of school on August 5, 2015, wearing said t-shirt, which, according to her complaint, did not cause any disruptions.  “No student or faculty member expressed to or otherwise interacted with Young in a manner manifesting any hostility, disapproval, or offense to the message on her shirt,” asserts her complaint.  At the end of the truncated first day, while all the students were in the cafeteria, Principal Micah Landers summoned Young to the front of the room, which was “full of students,” and told her that she could not wear to school either that t-shirt or “any other shirt referencing LGBT rights.”

Young’s mother telephoned Landers later that day to question his direction, at which time he “confirmed that he had forbidden Rebecca from wearing the shirt or any other apparel which bore phrases, symbols, slogans or other indicia of or in support of the LGBT community.” Landers asserted that this was for Young’s protection against “harassment and bullying.”  Young’s mother then called Phillip Wright, the Director of Schools for Giles County, who said “pro-LGBT messages are sexual in nature and, therefore, prohibited by the dress code.”  Several weeks later, Young’s mother received a letter from the school district stating that the restriction was justified because Young “would have been bullied or harassed by students due to the nature of the shirt’s writing and the environment of the school.”  The letter cited official dress code policies adopted by the school district, which stated: “Attire considered disruptive or risky to health or school/personal safety is not appropriate” and authorized the principal to administer “appropriate punishment” if a student came to school “attired in a manner which is likely to cause disruption or interference with the operation of the school.”

Young filed suit in November, represented by Mark J. Downton of Nashville and Thomas H. Castelli, ACLU (Nashville Office), suing the school board as well as Principal Landers and Wright in their individual and official capacities.  The defendants’ response so far has been to ignore the lawsuit!  According to the opinion by Judge Sharp on Young’s motion for a preliminary injunction, as of December 22 “Defendants have not responded to Plaintiff’s Motion or even entered an appearance in the case.”

Judge Sharp found it virtually an open-and-shut case for issuing a preliminary injunction against the defendants.  “Plaintiff brings suit to stop her school from censoring her expression of her views on a topic of undeniable political importance,” he wrote.  “The legal ground covering such issues is so well-trod that the Court finds itself surprised at the need to journey down this path.  Nevertheless, the Court draws upon analogous precedent to reach the conclusion that Plaintiff will likely succeed on the merits of her claims,” the first test of whether the court should issue a preliminary injunction.

The Supreme Court set down the basic analysis of the First Amendment free speech claim of students in Tinker v. Des Moines, 393 U.S. 503 (1969), in which the court held that public school students enjoy First Amendment free speech rights to speak on matters of public concern, bound only by the school district’s legitimate interest in maintaining order and preventing disruption.  “Schools need not tolerate student speech deemed inconsistent with the educational mission even if similar speech might be protected outside the school setting,” wrote Judge Sharp.  “Yet neither may schools punish ‘silent, passive expressions of opinion, unaccompanied by any disorder or disturbance’ attributable to such expression, and ‘undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression,’” quoting from Tinker.  In that case, the Supreme Court upheld the right of high school students to wear black armbands to protest the Vietnam War during the 1960s.  Under Tinker, a school that wants to suppress student political speech must show that the “forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.’”

Sharp found that student speech on LGBT rights “is speech on a purely political topic, which falls clearly within the ambit of the First Amendment’s protection.”  Since the defendants did not deign to file any opposition papers, the court relied solely on Young’s uncontested allegations in her complaint and papers in support of her motion.  “Based on the evidence now before the Court,” wrote Sharp, the ban on Young’s t-shirt and similar apparel was not necessary to avoid “material and substantial interference with schoolwork or discipline.”  “Plaintiff wore her shirt without any disruption on August 5, 2015. The only disruption came at the hands of Defendants themselves, when Principal Landers addressed Plaintiff in the cafeteria.  Apart from this indelicate approach to a sensitive topic, Plaintiff’s shirt does not even seem to have been a blip on others’ radar.”  The statements Landers and Wright made to justify their ban were nothing “other than conclusory statements to support their unfounded theory that speech on LGBT rights will disrupt the school environment,” which falls far short of the Tinker standard of justification.

Briefly addressing the other tests for preliminary injunctive relief, Sharp found that abridging Young’s free speech rights caused her irreparable harm, which was “actual and ongoing,” that granting the injunction would cause no harm to others and would be in the public interest.  “Granting an injunction will vindicate the First Amendment rights of other students who are also currently subject to Defendants’ censorship,” he wrote.  “Moreover, because Defendants have failed to present any evidence regarding the disruptive nature of LGBT-related expression, there is little reason to believe that granting the injunction will harm other students by negatively affecting their education.”

In his Order issued with the opinion, Sharp enjoined the defendants from “restraining, prohibiting, or suppressing the Plaintiff or any other student within the school district of Giles County, Tennessee, from expressing his or her support for the respect, equal treatment, and acceptance of LGBT people including but not limited to the shirt worn by Plaintiff Rebecca Young on August 5, 2015 and other apparel bearing the rainbow symbol or other symbols and phrases associated with LGBT rights; enforcing any policy that prohibits speech or expression in support of the respect, equal treatment, and acceptance of LGBT people; and taking retaliatory action against Plaintiff for bringing this lawsuit, or against any students for their past or future expressions of support for the respect, equal treatment, and acceptance of gays and lesbians.”  If any school official takes any step to prevent Young or any other student from wearing a pro-LGBT shirt or button or other symbol, they could be held in contempt of court.

Sharp, who is Chief Judge in the Middle District of Tennessee, was appointed to the court in 2010 by President Obama.