Tennessee lawmakers to consider transgender bathroom bill

Less than a week after South Dakota's Republican governor vetoed a bill that would have made it the first state in the nation to have a law that would have required transgender students to use bathrooms that match their sex at birth, Tennessee lawmakers are set to consider similar legislation.

The measure, sponsored by Rep. Susan Lynn, R-Old Hickory, and Sen. Mike Bell, R-Riceville, would "require that a student use student restroom and locker room facilities that are assigned for use by persons of the same sex as the sex indicated on the student’s original birth certificate."

Lynn, who called South Dakota Gov. Dennis Daugaard's veto a "mistake," said the legislation is necessary in order to avoid a lawsuit.

Every school district in Tennessee has to currently come up with their own policy, she said, calling it a "salt and pepper, patchwork" approach.

Williamson County Schools, Metro Nashville Public Schools and Wilson County Schools review bathroom accommodation requests from transgender students on a case-by-case basis. "Our goal is to provide a supportive environment for all students and make them feel welcome in their schools," MNPS spokesman Joe Bass wrote in an email.

Lynn said by allowing each school district to set their own policy, a parent might decide to take legal action which could force a district to explain how they came up with their own policy. To avoid that, Lynn said the state should implement a law requiring students to use bathrooms based on their gender at birth, which she said will offer protection to individual school districts.

Lynn believes the state would be on solid ground if it to enact her bill in the event of a lawsuit. "We feel past court decisions have upheld the right to privacy for students regarding this issue," she explained.

Calling her bill a "very friendly" approach, Lynn said the legislation allows schools to make arrangements for anyone who "claims to be transgender."

"They can make that accommodation, it's just that it's not going to violate the rights of the students who don’t have that claim," she said pointing out that transgender students will "have a bathroom for their own sex."

The privacy argument is one that advocates are expected to use when the legislation is taken up in the House Education Administration and Planning Subcommittee on Tuesday.

Matt Sharp, a lawyer with Alliance Defending Freedom, a non-profit organization that describes itself as an advocate for "the right of people to freely live out their faith," indicated he will speak in favor of Lynn's bill.

“Letting boys into girls’ restrooms and changing areas, for example, is an invasion of privacy and a threat to student safety," Sharp said in a statement issued on Monday. “This bill allows schools to make single-stall restrooms available to students who aren’t comfortable using restrooms designated for their biological sex while also protecting the privacy rights of other students — especially children who have suffered sexual trauma in the past. They are especially vulnerable to harm from exposure to unclothed members of the opposite sex.”

Opponents of the measure have been weighing in on the issue as well, calling Lynn's bill  "appalling" and "outrageous."

Last week, the American Civil Liberties Union of Tennessee sent a letter to Gov. Bill Haslam urging him to take a stand against the bill.

“This legislation calls for one group of students to be treated differently from others.  Not only is that unlawful discrimination, it can have a devastating impact on young people who are already under tremendous stress and at greater risk of bullying,” Hedy Weinberg, the group's executive director, said in the letter. “The governor has a real opportunity here to be a leader in ensuring that transgender students are treated with dignity and respect just like everyone else.”

Weinberg said such a move would put the state in jeopardy of losing hundreds of millions of dollars in federal funds because passing such legislation would violate the 14th Amendment's Equal Protection Clause, as well as Title IX, a federal law that prohibits discrimination on the basis of sex.

Although the bill's fiscal note found no significant financial impact, the possibility of the state losing federal funds has at least concerned the state Department of Education.

"There is a fiscal flag on this legislation because of concerns around losing Title IX funds," said Ashley Ball, the department's communications director. "This is an emerging area of the law that courts across the country are currently considering, and decisions on sensitive issues such as these are best made at the local level based on the unique needs of students, families, schools, and districts while working closely with local board counsel."

Ball said that if school districts violate Title IX, which she said is a comprehensive civil rights statute, they could lose federal funds.

Lynn dismissed the Department of Education's concerns, saying, "We would not lose Title IX funds. I'm confident of that."

Although the bill was set to be discussed in committee last week, Lynn ended up halting any action because she was needed in a separate committee.

Also opposing the bill are the Human Rights Campaign and the Tennessee Equality Project, as well as 75 ministers and rabbis who have written a letter opposing the measure.

"This legislation is detrimental to transgender students by exposing them to violence and increasing the likelihood that they will drop out of school or take their own lives," the group wrote. "Faith teaches us to cherish all people, especially those targeted by legislation that fails to recognize them as they are and subjects them to harm.  We respectfully call on the Tennessee General Assembly to reject this bill.

​Beyond South Dakota, which would've become the first state in the nation to such a law had it not been for Daugaard's action, as many as 10 other states, including Tennessee, Indiana and Kentucky, have begun fighting over bathroom laws this year.

Battle brewing over transgender bathroom laws in state capitals

Lynn said she is prepared for the attention the bill will receive, adding that a "silent majority" supports the legislation.

"I’m sorry, there’s always going to be someone who doesn’t like legislation but honestly it's not fair to young ladies and young men to violate their privacy," she said. “It's just not fair just because someone suddenly declares that they are something that biologically they’re not.”

 Melanie Balakit contributed to this report.

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