Attorney general: Tennessee bathroom bill threatens Title IX funds

The controversial bathroom bill that would require Tennessee students to use a restroom that matches their sex at birth would put the state in jeopardy of losing federal education funding, the attorney general concluded in an opinion released Monday.

In the opinion, Attorney General Herbert Slatery said if transgender students are required to use a restroom consistent with their gender at birth — and not the one based on their gender expression or gender identity — it could result in a loss of federal Title IX money. He said that's based on the U.S. Department of Education's interpretation of the law that prohibits discrimination based on sex.

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Slatery pointed to a similar measure that became law in North Carolina as evidence that Tennessee could face a legal challenge.

"As things currently stand, we must, as a practical matter, assume that H.B. 2414 would violate Title IX, because the enforcer of Title IX has clearly interpreted — and enforced — Title IX to prohibit as 'discriminatory on the basis of sex' what H.B. 2414 is designed to accomplish," Slatery said in the opinion.

The five-page document comes in response to two questions, which centered around the Title IX issue, that Reps. Mike Stewart, D-Nashville, and Harry Brooks, R-Knoxville, who serves as chairman of the House Education Administration and Planning Committee, asked Slatery to answer.

Stewart called Slatery's opinion the "final nail in the coffin" for the legislation that has brought national attention to Tennessee. Artists, entertainment companies, the tourism industry and Nashville Mayor Megan Barry are among those who have come out in opposition to the bill. Conservative groups have backed the bill.

"The fact that the attorney general has recognized that this will result in significantly reduced federal funds for the state of Tennessee should put an end to the discussion about this bill," Stewart said at a news conference Monday.

Rep. John Ray Clemmons, D-Nashville, said there was no way proponents of the legislation could continue to defend it in light of Slatery's opinion.

Both Stewart and Clemmons said the bathroom bill could hinder the progress the state has made in recent years in terms of creating a business-friendly climate.

"What we're doing with this sort of bill is absolutely putting that sort of progress in jeopardy," Stewart said, noting concerns that several companies have expressed about the measure.

Former state Sen. David Fowler, who serves as president of the Family Action Council of Tennessee, ripped Slatery for his opinion, saying it simply "regurgitates legal arguments made by President Barack Obama's administration."

Fowler said Slatery's opinion relied on "settlement agreements" and not court decisions.

"A settlement agreement only means that the school districts decided not to litigate the clear meaning of the word 'sex' in Title IX and just go along with what the Obama administration wanted," Fowler said. "Settlement agreements have no persuasive value as a matter of law, unlike the court decisions that have actually ruled in favor of sex-designated bathrooms."

Fowler said that the state would not be in immediate danger of losing Title IX funding should it pass the legislation.

"Thankfully, the attorney general did mention that, by law, no money can be withheld from a state until the state loses its legal arguments, and then only if it doesn’t come into compliance with that ruling within 30 days," he said. "No one needs to run around like their pants are on fire as if there is some immediate, real threat to Tennessee losing Title IX funds."

The legislation, sponsored by Rep. Susan Lynn, R-Mt. Juliet, and Sen. Mike Bell, R-Riceville, has drawn the ire of many opponents, including several businesses and entertainers, in recent days.

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While proponents of the measure, including the Alliance for Defending Freedom and the Family Action Council, say the bill is necessary in order to protect the privacy of students, opponents — such as the ACLU of Tennessee and the Human Rights Campaign — argue it is discriminatory.

Last week, several people, ranging from Barry to Miley Cyrus, expressed their concerns.

After a House education committee approved the bill, Lynn pushed back against the idea that the legislation could negatively impact the state, saying, "I really hope that it would not because this is really common sense."

Gov. Bill Haslam and the state Department of Education have raised similar concerns about the federal funding. But the governor has not said whether he would veto the legislation should it make it to his desk.

The release of the attorney general's opinion comes the same day that Chris Carmack, an actor on the television series "Nashville," and hall of fame songwriter Desmond Child joined the Tennessee Equality Project and GLAAD in calling for an end to what they said are a series of bills aimed at attacking members of the LGBT community.

Also on Monday, Billy Ray Cyrus joined in the chorus of opponents.

"I would feel negligent not to speak up," he said.

Cyrus cited his daughter's position, as well as those of Bryan Adams and Bruce Springsteen, who have criticized similar measures in other states and subsequently canceled their own concert performances, as his rationale for making his decision known.

"As a friend and a dad ... I've witnessed this fight from the very beginning," he said. "I think everyone should be treated equal. We've come too far; we can't mess this up."

Their call comes on the heels of criticism from Emmylou Harris, Chely Wright and Ty Herndon, as well as executives of Dow Chemical Co., Hewlett-Packard, Alcoa Inc. and Choice Hotels International.

The president and CEO of the Nashville Convention & Visitors Corp., a business agent for the International Alliance of Theatrical Stage Employees Local 492 and a spokesman for Viacom also previously told The Tennessean they had concerns about the legislation.

Opponents of the measure have even taken to social media in recent days, starting a hashtag on Twitter dubbed #CanIpeeinTN.

The Senate Finance, Ways and Means Committee is scheduled to take up the controversial legislation on Tuesday or Wednesday.

Reach Joel Ebert at 615-772-1681 and on Twitter @joelebert29.