On July 9, 2021, a federal district court in Nashville, Tennessee, granted a preliminary injunction, halting enforcement of a new Tennessee law on bathroom signage. That law mandates that businesses post specific signs next to their public bathrooms, if they allow people to use the bathroom that conforms with their gender identity. The first-of-its-kind law went into effect on July 1, 2021. It requires that any

public or private entity or business that operates a building or facility open to the general public and that, as a matter of formal or informal policy, allows a member of either biological sex to use any public restroom within the building or facility shall post notice of the policy at the entrance of each public restroom in the building or facility.

The law specifies the size, font, color, and content of the sign, which must state the following:

THIS FACILITY MAINTAINS A POLICY OF ALLOWING THE USE OF RESTROOMS BY EITHER BIOLOGICAL SEX, REGARDLESS OF THE DESIGNATION ON THE RESTROOM

The act gives any entity or business that is in violation of its edict 30 days from being “notified that it is not in compliance” to post the required signage, after which “action” may be “taken against the entity or business.” Failure to remedy the violation would constitute a Class B criminal misdemeanor.

Two businesses in Nashville and Chattanooga have filed a lawsuit challenging the law. They assert that being forced to place these signs on their premises violates their rights under the First Amendment of the U.S. Constitution. Both argue that the act requires them to engage in a form of speech that they find offensive and that is contrary to their beliefs on diversity, inclusion, and mutual respect.

The Court’s Analysis

District Judge Aleta Trauger of the U.S. District Court for the Middle District of Tennessee agreed with businesses, holding that they were likely to succeed in their lawsuit. When granting the preliminary injunction precluding the enforcement of the law, Judge Trauger did not mince words. She noted that the Supreme Court of the United States has held that “‘[c]ompelling individuals to mouth support for views they find objectionable violates [a] cardinal constitutional command’ unless justified by the strongest of rationales.”

Judge Trauger wrote that “[p]articularly repugnant to the First Amendment is when the government forces a private party to voice the government’s compelled message, not merely in private or in direct dealings with government itself, but ‘in public,’ as an involuntary ‘instrument for fostering public adherence to an ideological point of view.’” Judge Trauger found that the government had failed to plausibly articulate any legitimate rationale for the law, let alone one that would survive strict-scrutiny review.

Judge Trauger concluded her memorandum opinion by observing 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.

(Internal citations omitted.)

Key Takeaways

The court’s ruling provides a measure of clarity to Tennessee business owners and managers who were concerned about compliance with the law and worried about criminal liability for violating its mandates. Since the Tennessee General Assembly’s passage of bathroom signage legislation at the conclusion of the 2021 session, and Tennessee Governor Bill Lee’s signing the legislation into law, employers had expressed concern regarding the potential consequences resulting from noncompliance with the law. Some employers had expressed dismay at the effect that such a law could have on their employees who are members of the LGBTQ community. For the time being at least, while this case works its way through the courts, it appears that Tennessee businesses may have a reprieve from enforcement of the law.