Tennessee’s recently-passed bathroom legislation is transphobic, confusing, and nearly impossible to enforce, according to its critics. What it won’t do is make anyone – transgender, cisgender or anywhere in between – safer in public restrooms, they say.
The law was signed by Republican Gov. Bill Lee last month and will take effect on July 1. It requires businesses and other entities with public, multi-stall bathrooms that allow transgender people to use facilities aligning with their gender identity to display signs with state-mandated language. They’ll read: “Notice: This facility maintains a policy of allowing the use of restrooms by either biological sex, regardless of the designation on the restroom.”
The bill’s House sponsor, Republican Rep. Tim Rudd, has said the bill protects transgender people by letting them know which businesses and public spaces have restrooms they can use.
Critics, however, say the law will force businesses and other places with publicly accessible restrooms into having to make difficult choices, especially those that support transgender rights. Do they comply and post the sign or ignore the law and not post and face fines? Either way, transgender people could feel targeted and even warier about using restrooms, some said.
The law is one in a new slate of anti-trans legislation passed in conservative states this spring and the first state bathroom bill passed since North Carolina’s in 2016, according to the Human Rights Campaign. It is also the only law of its kind in the nation that requires a sign, an HRC spokesman said.
Lee also recently signed a law giving public school students, parents or employees the ability to sue schools or districts if they allow transgender people into locker rooms or bathrooms when other people are there. It, too, is the only state law of its kind, the HRC spokesman said.
Allies, get ready
“Small business owners are going to be really concerned about getting fined for something versus doing the quote, unquote ‘right thing,’ which is just peacefully allowing trans people to use the bathroom,” said Alex Hauptman, transgender services manager at OUTMemphis.
“But, of course, a small business doesn’t have the ability to stand up against that because they don’t have a bottomless pocket to pay these fines,” he said. “To me, it’s sloppy and just there to create an air of unwelcoming for trans people to just be out in public.”
Over the last week, MLK50: Justice Through Journalism has contacted 17 organizations ranging from local stalwarts such as Huey’s, The Peabody Memphis and Graceland to multinational corporations such as Target and IKEA. Only three responded, all saying they needed more time to figure out an approach.
It’s also not clear how the law will be enforced. Rudd recently said non-compliant businesses could be slapped with a misdemeanor charge, though he initially said there were no penalties attached.
Rudd pointed out that the law will fall under existing building code that carries a punishment of no more than six months in jail and a $500 fine for violations.
That led Davidson County District Attorney Glenn Funk to say last week his office wouldn’t enforce the law.
Shelby County District Attorney Amy Weirich seems to be sidestepping the issue. Through a spokesperson, she declined to answer questions about enforcement but issued a statement that described the law as a code enforcement matter.
“This statute appears in the area of the code dealing with building safety. Most of those matters are handled by fire marshals and building inspectors,” she said in an emailed statement. “The processes in many areas involve reviews and re-inspections and appeals to various boards or administrative agencies. We will continue to look into the nuances of this public chapter and note the effective date is July 1, several weeks in the future.”
The law also applies to government buildings and attractions. A representative for the Memphis Zoo said, “We will not be making a statement at this time. Our team is still reviewing the new law and waiting for the city directive to finalize before making any decisions moving forward.”
A spokesperson for Memphis Mayor Jim Strickland did not return multiple emailed questions and requests for comment over several days about the law or a city directive.
A spokesperson for Shelby County Mayor Lee Harris said last week and Thursday that he had not read the law and “can’t comment.”
Activist Kayla Gore, a transgender woman, compared the sign law to a “scarlet letter” for trans people, who will not know if they are welcome when a sign is not present. “It’s very confusing. I don’t know which would be better,” a sign or no sign, Gore said.
Places that put up signs and trans people who go there could be targets, said Gore, co-founder of My Sistah’s House, which provides services, including emergency housing, for transgender people of color.
“If I go into a place with the sign, I put myself into imminent danger that it could be shot up by some radicalist who is like, ‘Oh, that’s where I can find them,’” she said.
Hauptman said the signs only serve to alert cisgender people that transgender people might use the restroom, too, reinforcing the unfounded idea that transgender women, in particular, are threats.
“(It) creates this sort of air of suspicion and paranoia around who’s in the bathroom with you, which is really unwarranted and unnecessary,” Hauptman said.
He suggested that the alternative of transgender people using restrooms that don’t align with their gender identity would pose even greater problems.
“I’m 36 years old. I have been on hormones for 10 or 11 years now. So I’ve been consistently trying to use men’s bathrooms when they’re provided. I don’t really feel like I can get away with going in women’s bathrooms anymore …”
Trans-friendly businesses face decision
The Orpheum Theater Group is one of the businesses faced with the question of how to support trans people without breaking the law, said Brett Batterson, president and CEO.
“We are still investigating what the law means for the Orpheum and Halloran Centre. One of our values as an organization is inclusivity, and we will do what is required to live up to that goal while also adhering to state laws,” Batterson said in a statement.
“We have been designated a brave, safe, and educated space for the LGBTQ+ community (through BRIDGES Gender and Sexuality Cohort) and will continue to be as laws shift within our state.”
IKEA U.S., whose Memphis store is the only Tennessee location, is considering how to respond to the law, a spokesperson said.
“A humanistic and values-driven company, IKEA believes that equality is a human right no matter your ethnicity, race or gender identity. We are aware of the new Tennessee bathroom law that will go into effect July 1. At this time, we are determining the best path forward in order to be compliant and still lead by our IKEA values.”
Hauptman suggests that businesses and other entities that can afford to risk fines not put signs up or consider avoiding the issue entirely by offering gender-neutral bathrooms.
“For businesses that are truly trying to create this space, I’m hoping they’ll look toward that as a solution. Because then you don’t have to have this sign up, and you have a bathroom that is truly comfortable for anybody to use.”
Hannah Grabenstein is a reporter for MLK50: Justice Through Journalism. Email her at email@example.com
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