Short Take: Toilets of Nashville

There are twenty state laws in various stages of enactment that will apply to public bathrooms. Some create crimes. Some require signs. Some just dictate who may enter and who may not. These are bad laws, both because they regulate a “problem” that doesn’t quite exist and because they impair the agency of whomever cleans the bathrooms to make whatever choice they prefer. What business is it of the State of Tennessee to tell me who can and cannot use a bathroom?

Last month, Gov. Bill Lee of Tennessee signed into law a discriminatory bill to prevent transgender people from using restrooms aligning with their gender identity at any business or place of public accommodation. A few days earlier, Governor Lee signed an anti-transgender student bathroom bill, too.

If a business wants to let transgender people use the room that matches their gender identity, what does Bill Lee care? And if a school is faced with that question, it’s up to the elected school board to make a decision. The governor isn’t on the school board. So why is he sticking his nose into local business?

The issue arises not from some affirmative compulsion on the part of states to dump on transgender folks but in anticipation of a federal mandate that forces schools and businesses to maintain transgender bathrooms. The federal government did this before, and Biden has made clear that it will happen again. The Tennessee legislature and governor have decided to take action to pre-empt the federal regulatory mandates, not that it will necessarily do them any good.

L.G.B.T.Q. people need more ally leaders like District Attorney General Glenn Funk of Nashville, who has taken a stand against the Tennessee legislature by refusing to enforce what Mr. Funk calls “hate,” asserting, “I believe every person is welcome and valued in Nashville. Enforcement of transphobic or homophobic laws is contrary to those values.”

If prosecutors won’t prosecute, then laws enacted by legislatures and signed by governors don’t really matter much. And the push is for “allies” in critical positions in government to engage in “civil disobedience,” or some might argue in violation of their oaths of office. to refuse to enforce laws with which they disagree.

Defying the law is a big step, but nothing less than our civil rights are at stake. Which is why we’re taking our fight to the courtroom, challenging anti-trans laws like the one Gov. Ron DeSantis of Florida signed last week. But we also need action from players like the law enforcement agencies tasked with enforcing bathroom bills like Tennessee’s — which requires businesses with “formal or informal” policies of allowing transgender people to use the appropriate restroom to post offensive and humiliating signage. Denying transgender people the ability to access a bathroom consistent with their gender identity isn’t only degrading, it has significant health and safety consequences, especially for trans youth.

There are serious arguments involved in how to address transgender discrimination and rights. There are also silly arguments. There are arguments that remain below the surface, as to what unintended consequences will follow from this argument, since it starts with transgender bathrooms but will eventually spread throughout our social fabric.

Is it time to have a conversation about transgender rights? No. No it is not. Not because we don’t want to or need to, but because activists will not tolerate any discussion. They want what they want and while J.K Rowling might have enough heft to overcome their cries of hate, will Jesse Singal, you or I? Any hint of a question about whether transgender people get to do as they please is met with a thousand shrieks of transphobia.

Instead, we’re left with bureaucrats like Gupta, and even district attorneys like Funk, imposing by fiat their will to counter the legislative overreach of Tennessee and other states in anticipation of the federal mandate that will compel your business, your school board, your place of employment, to stop discriminating against transgender people by discriminating for them. And we still can’t talk about it.

24 thoughts on “Short Take: Toilets of Nashville

  1. Erik H.

    “And if a school is faced with that question, it’s up to the elected school board to make a decision. The governor isn’t on the school board. So why is he sticking his nose into local business?”

    The claim is that exposure to opposite-sex people in a state of undress is (or could be) harmful to children.

    However you come down on that balance, it would be more appropriately decided at a higher level–ie state–in a manner that focuses on the rights of the kids on both sides, and not by some local town randos on the school boards. Not to mention that differing rights on a non-scholastic question like this would be really weird; we have state federalism but not school-district federalism.

    1. SHG Post author

      It would certainly be more appropriately decided by a deliberative policy-making body than by courts or bureaucrats, and there’s room to disagree whether the body should be local, state or federal, as each has its merits. But if school policy is decided by local school boards, and this is a matter of school policy, then it’s unclear why this issue, as opposed to any other, be decided at the state level.

    2. B. McLeod

      The governor is only signing bills the legislature passed. So he’s not sticking his nose into local matters, he’s just signing off on the legislature’s interference in local matters.

  2. Elpey P.

    The elephant in the (rest)room is that there is no longer any rationale for separate facilities which holds up to scrutiny, now that biological sex has been removed as the basis. Using gender is like using religion.

    Perhaps there wasn’t a reasonable basis before and sex should have already been considered irrelevant. But now that this irrelevancy is being made explicit and state-sanctioned, people should simply feel free to use whatever restoom they feel like.

    1. SHG Post author

      That may ultimately happen, and may end up being no big deal. But that’s bathrooms. Take the issue to its logical extreme, since we’re lawyers and that’s how we test validity.

      1. Elpey P.

        So the proper answer here is letting everyone use any restroom without regard to sex. Now let’s do sports, where the same reasoning is being applied.

        1. SHG Post author

          But it’s bathrooms. BATHROOMS. No way it will slide down the slippery slope into every other aspect of life.

        2. Jake

          I’m sorry, you’ve mistaken me for someone stupid enough to fall for the narrative that American society faces a tsunami of men pretending to be women to win gold medals if I don’t smash my finger into the hole in the gender identity dike.

          You should turn off the Joe Rogan podcast and take a trip to Europe. You may be surprised when it’s time to visit the facilities.

  3. David

    The provision of the law that requires posting of a sign may be problematic under the first amendment. I would have thought the state could force commercial entities to post such signs but NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES, DBA NIFLA, ET AL. v. BECERRA, ATTORNEY GENERAL OF CALIFORNIA, ET AL. went the other way.

  4. Scott Jacobs

    In the defense of DA Funk, he’s taken such stands before (not using the enhancement for selling drugs at a school unless it’s during school hours when kids are there – a 3am sale in the parking lot in July won’t get it), and while maybe this is just my “I prefer this outcome so I like the stance” talking, but personally I view the law as immoral, and it is, therefore, a duty to defy it.

    I get that some may disagree, and I respect that, but I just can’t fault him for it.

  5. Jake

    The transgender bathroom issue is a naked appeal to ignorance and hate for votes. Like Al Quaeda before them, the religious right in the US will need to be dragged kicking and screaming into the 21st Century. The bloodshed, pain, and potential collateral damage of their transition into reality will only get worse the longer we wait.

      1. Jake

        As a rule, analysts know that if you squint hard enough at the data behind any poll and you’re sure to find a few outliers. It’s unnecessary to point out.

  6. CLS

    It would be nice if Florida took its spot back as the place where weird shit happens.

    Tennessee doesn’t need the distinction any longer.

      1. Skink

        As roadkill, they suck. They get flattened. But the folks in Tennessee might make them something like the state animal. A six or eight foot lizard has appeal.

        “Florida man” or “Tennessee man,” who’d know?

  7. Mike V.

    Ah, but passing legislation is what politicians do when they just have to DO something. It’s like virtue signaling, but it has the weight of government behind it.

    I don’t see why some accommodation can’t be made for LQBT folks while keeping boys only and girls only facilities, without the government. Our “betters” in government meddle in our way too much as is.

    1. SHG Post author

      Accommodations could be made, but some might find them inadequate and demand that government fix it.

    2. Rengit

      Since transgender rights are often conceived of as a dignitary issue by their advocates, i.e. that there is zero difference between a transgender woman and a cisgender woman (“a woman is a woman is a woman”) such that it is an existential attack on the person’s humanity to suggest otherwise, any accommodation, like an all-gender bathroom, would necessarily imply that transgender women aren’t women in the same way that cisgender women are, which is a dignitary affront amounting to discrimination. It would be attacked as using the same logic underlying Plessy vs. Ferguson, and targeted for destruction using Brown’s “separate is inherently unequal” logic.

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