A federal judge has struck down a Tennessee law that requires businesses to post a red and yellow “notice” on any public bathroom that allows transgender people to use the restroom that best matches their gender.
The first-of-its-kind law, signed by the state’s Republican governor last spring, would have required the signs as part of the state’s building code. Businesses that refused or failed to display 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 on Tuesday that the signs would not only violate business owners’ First Amendment rights, requiring them to “endorse a position they do not wish to endorse,” but that they risk sowing “fear and misunderstanding.”
“It would do a disservice to the First Amendment to judge the Act for anything other than what it is: a brazen attempt to single out trans-inclusive establishments and force them to parrot a message that they reasonably believe would sow fear and misunderstanding about the very transgender Tennesseans whom those establishments are trying to provide with some semblance of a safe and welcoming environment,” Trauger said.
Advocates of the law had argued that the signs would help protect women and children from sexual predators who might use the same restroom as them. The legislation requires the word “NOTICE” to appear in yellow on a red background and stipulates that the sign should be at least eight inches wide and six inches tall.
The law requires the sign to read, in all capital letters:
“THIS FACILITY MAINTAINS A POLICY OF ALLOWING THE USE OF RESTROOMS BY EITHER BIOLOGICAL SEX, REGARDLESS OF THE DESIGNATION ON THE RESTROOM.”
Trauger, who panned the sign’s “cartoonishly alarmist color scheme,” said there was no evidence supporting the claim that these signs would prevent a sexual attack.
“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 of this case, that there is any significant problem of individuals’ abusing trans-inclusive restroom policies for that purpose and (2) no reason to think that, if such a problem existed, the mandated signs would address it,” she said.
State Rep. Tim Rudd (R), who sponsored the bill, dismissed the judge’s ruling as politically biased and repeated the unsubstantiated and transphobic claims that such signs would prevent sexual assault.
“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,’” his office said in a statement to HuffPost on Wednesday. “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 said he believes the ruling will 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 on Tuesday.
“As a former journalist, I believe strongly in free speech,” he 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.”
Henry Seaton, a transgender justice advocate at the ACLU of Tennessee, said the ACLU’s work pursuing “trans justice” will go on.
“This signage law was simple cruelty - and cruelty is unjust,” he said in a statement. “We’ll continue our pursuit of trans justice to its fullest extent, and hope that the trans and non-binary community feels relief and hope from this ruling.”