Photo by Zackary Drucker as part of Broadly’s Gender Spectrum Collection. Credit: The Gender Spectrum Collection.

The state’s new transgender bathroom signage law may be circling the bowl before it’s scheduled to take effect Thursday. In a statement issued to MLK50: Justice Through Journalism on Tuesday, Shelby County District Attorney Amy Weirich indicated her office will not enforce the law because of lawsuits challenging its constitutionality.

In the past week, two lawsuits have been filed in federal court challenging the law. Neither involve Shelby County businesses nor do they name Weirich as a defendant.

The statement said: “As written, this law doesn’t appear to fall under the jurisdiction of local DAs but rather code enforcement. Several lawsuits have been filed blocking its enforcement and the courts will have to sort that out. My office will continue to concentrate on prosecuting violent criminals—that is my priority and focus—to protect victims and their neighborhoods.”

“My office will continue to concentrate on prosecuting violent criminals—that is my priority and focus—to protect victims and their neighborhoods.”

Shelby County DA Amy Weirich in a statement regarding Tennessee’s transgender bathroom law

It’s unclear why Weirich believes her office would not have jurisdiction, as district attorneys have been named as defendants in the two lawsuits filed. While code enforcement officers do issue citations, the district attorney has discretion on whether to prosecute misdemeanor offenses, which a violation of this law would be.

The law applies to businesses and other places with multi-stall bathrooms that allow people to use the restroom of the gender with which they identify. The businesses are required to post signage with the following state-mandated language: “Notice: This facility maintains a policy of allowing the use of restrooms by either biological sex, regardless of the designation on the restroom.”

The law is one in a 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 bathroom signage, 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 present. It, too, is the only state law of its kind, the HRC spokesman said.

The law’s House sponsor, Rep. Tim Rudd, R-Murfreesboro, argued the measure protects transgender people, but in floor discussion he repeated baseless claims about trans people. 

“At least if it’s on the door when you go in and that’s the business’s policy at least you know what to expect,” Rudd said, according to the Associated Press. But during discussion of the bill, he said he doesn’t want people “calling me next year …  telling me that they’ve been assaulted or raped in a restroom.”

But opponents say the law is confusing and discriminatory, putting a scarlet letter on both transgender people and the businesses and public places that allow them to use facilities that align with their gender identity.

“My office will not promote hate.”

Davidson County DA Glenn Funk in response to Tennessee’s new transgender bathroom law

In May, Davidson County DA Glenn Funk, a Democrat, said his office wouldn’t enforce the law, calling it “transphobic and homophobic.”

“My office will not promote hate,” he said in a statement.

Like Davidson County, Shelby County votes blue, but Weirich, a Republican, hasn’t made any such declaration, instead punting on questions MLK50 posed earlier this month about enforcement. Then she said the law is a code enforcement issue that would be handled by fire marshals and building inspectors, and added that the law wouldn’t take effect for some weeks.

Because the law falls under a section of Tennessee code that makes a violation a class B misdemeanor, it carries a maximum penalty of no more than six months in jail and a $500 fine.

It’s not clear who would enforce the law. Carlissa Shaw, chief policy advisor for Shelby County Environmental Courtsaid the law is “too ambiguous to tell who’s responsible” for its enforcement. 

Last week, the American Civil Liberties Union and its Tennessee branch petitioned in federal court to declare the law unconstitutional. A second federal lawsuit was filed this morning by Curb Records, Inc. in Nashville. 

The ACLU lawsuit alleges the law violates the business’ First Amendment rights by forcing them to “communicate a misleading and controversial government-mandated message that they would not otherwise display.” The suit also claims the law is poorly worded, since it doesn’t take into account intersex people, doesn’t define “biological sex” and has no clear indicator of how a business would determine whether a person is transgender.

It names Funk and Hamilton County District Attorney Neal Pinkston as defendants as they would be the ones to bring misdemeanor charges against noncompliant entities, Castelli said. 

The court has not responded to the claims in either lawsuit. Regardless of the status of the lawsuits, business owners have a 30-day grace period to respond to any citations, Castelli said, meaning no one will face immediate penalties. 

Weirich is up for re-election in 2022. At least one Democrat – former Memphis police officer and former federal prosecutor Linda Harris – has announced her intent to challenge her. 

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