In May of 1971 the Canadian musical group Five Man Electrical Band released “Signs” which the website SongFacts describes as “a prescient look at class division and property rights.[i] Some of you may be more familiar with the 1990 cover of Signs released by the band Tesla. The song features the following chorus:
Sign, sign everywhere a sign.
Blockin’ out the scenery, breakin’my mind
do this, don’t do that, can’t you read the sign?
When Governor Lee signed House Bill 1182 into law on May 19th he may have been envisioning signs on public bathrooms everywhere throughout the state. But the law that would make that vision a reality is on hold, at least for now.
The so called “Business Bathroom Law” requires any public or private business or entity that operates a business or facility that is open to the general public to post signage if they have a formal or informal policy of allowing a “member of either biological sex to use any public restroom within the building or facility.”[ii] The statute defines “public restroom” as any “locker room, shower facility, dressing area or other facility or area that is open to the general public, designated for a specific biological sex [and is] a facility or area where a person would have a reasonable expectation of privacy.” Unisex, single occupant and family restrooms are exempt from this definition.[iii]
The Business Bathroom Law requires that businesses or facilities that allow individuals of either sex to use their bathrooms to post a notice at the entrance of each of their restrooms. The notice may be located either on the public restroom door or within one foot of the public restroom door frame.[iv] The law also sets forth specifics on the signs that must be posted.
Covered businesses or facilities must purchase signs that are at least 8 inches wide and 6 inches tall. The top third of the sign must be red and read NOTICE in yellow font.[v] The bottom two-thirds of the sign must contain a white background with black boldface, block letters that read:
THIS FACILITY MAINTAINS A POLICY OF ALLOWING THE USE OF RESTROOMS BY EITHER BIOLOGICAL SEX, REGARDLESS OF THE DESIGNATION OF THE RESTROOM[vi]
If a qualifying business or facility fails to comply with the law the business or entity, once notified of noncompliance, will have 30 days in which to comply before any action is taken against it. Because the statute is part of the Building Regulations chapter of the Tennessee Code Annotated a violation results in a class B misdemeanor which is punishable by up to 6 months of jail time and/or a $500.00 fine.[vii]
The Business Bathroom Law came under attack shortly after Governor Lee signed it. In May Davidson County District Attorney General Glenn Funk said he would not press charges against anyone refusing to post the required signs. Attorney General Funk deemed the law as “transphobic” and “homophobic” and said that his office “will not promote hate”[viii]
In June the American Civil Liberties Union and its Tennessee Chapter filed suit in Federal Court on behalf of two Tennessee businesses and their respective owners, Bongo Productions, LLC, Robert Bernstein, Sanctuary Performing Arts LLC and Kye Sayers.
A second Lawsuit was filed a few days later. Both cases assert that the Business Bathroom Law is unconstitutional on multiple grounds, including that it violates the First Amendment right “against compelled speech”.[ix]
On July 9th United States District Judge Aleta A. Trauger issued a Memorandum Opinion granting the Plaintiffs’ Motion for a Preliminary Injunction in Bongo. Judge Trauger found that the Plaintiffs’ had met their burden to obtain a preliminary injunction based on their claim that the Business Bathroom Law violated their right against compelled speech. Judge Trauger held as follows:
Some messages do not have to be compelled to be repeated; they surface, time and again, by dint of their persuasiveness and their importance. More than a dozen times, the Supreme Court, or a Justice of that Court writing separately, has repeated the classic declaration, originally set forth by the Court in West Virginia State Board of Education v. Barnette, that, “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can 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. That rule is not founded simply on an abstract love of unfettered and uncompelled speech. The First Amendment holds its privileged place in our constitutional system because, “[w]henever the Federal Government or a State prevents individuals from saying what they think on important matters or compels them to voice ideas with which they disagree, it undermines” both “our democratic form of government” and the very “search for truth” necessary for a thriving society to persist. Because that principle retains its vitality today, and because the law at issue in this case is a brazen violation of it, the court will grant the plaintiffs’ motion for a preliminary injunction. (internal citations omitted).[x]
As of the date of this writing the preliminary injunction is still in effect. While the preliminary injunction could ultimately be set aside by Judge Trauger or an appellate court Tennessee businesses currently do not have to comply with the Business Bathroom Law. Businesses should keep a close eye on this litigation because in the event the injunction is lifted, compliance will be mandatory and there will likely be a short time in which to comply.
[ii] House Bill 1182
[vii] Tenn Code Ann §40-35-111 (e)(2)
[viii] See Mariah Timms Nashville DA Won’t Enforce ‘Hate’ Bill Requiring Businesses To Post Signs For Transgender Bathroom Access, Tennessean (May 24, 2021), htpps\\www.tennesseean.com/story/news/politics/2021/05/04/Nashville-da-not-enforce-trans-bathroo-signage-bill-tennessee/7422294002/.
[ix] Bongo Production, LLC v. Carter Lawrence, et al. Case No. 3:21-cv-00490 7-9-21 Mem Op. at pp. 17-18, 30-31
[x] Id. at pp. 30-31