Tennessee Is Trying to Pass a Bathroom Bill by Pretending It’s Not a Bathroom Bill

Yikes.

After Massachusetts voted to keep in place laws protecting its transgender citizens last year, anti-LGBTQ activists were faced with a choice: whether to keep lying or start telling the truth.

In a November op-ed for the right-wing website LifeSiteNews, MassResistance—which has been designated by the Southern Poverty Law Center as an anti-LGBTQ hate group—acknowledged that the attempt by conservatives to convince the public that trans people pose a threat to the safety of women and children had largely failed. Massachusetts voters upheld a 2016 law allowing transgender people to use the restroom that aligns with their gender identity by a 35-point margin. Just months earlier, Anchorage defeated a “bathroom bill” voter referendum 53% to 47%.

MassResistance admitted that the problem was the “bathroom safety” argument was “largely contrived,” giving voters a “terribly skewed presentation of the issue.” LGBTQ groups—which have debunked the trans predator myth time and again—have “now figured out how to beat it,” the organization added.

Natasha Moustache/Getty Images
Laverne Cox attends a rally in support of the question 3 ballot referendum in Massachusetts leading up to the 2018 midterm elections.

“We need to learn from this,” MassResistance concluded. If anti-LGBTQ campaigns hoped to avoid further losses, MassResistance claimed they needed to stop hiding behind half-hearted rhetoric and be honest about their real target: “the bizarre and delusional nature of transgenderism itself.”

But in 2019, critics say opponents of equality have kept using the same playbook. For instance, anti-LGBTQ lawmakers in Tennessee have attempted to disguise what they really want. Rather than replacing failed anti-trans bathroom bills of previous years with more transparent proposals, the legislation has only gotten more arcane.

On Wednesday, April 17, the Finance, Ways, and Means Subcommittee in the Tennessee House held the final hearing on House Bill 1274, which has rapidly been gaining momentum in the legislature. If passed, it would direct the Tennessee Attorney General to defend school districts who are sued for refusing to allow trans students to use restrooms and locker rooms that align with their sense of self.

Kasey Suffredini, president of strategy at Freedom for All Americans, claims that while the strategy might be different, there’s no mistaking that this proposal is, in effect, a bathroom bill. He says it passes the buck onto local school districts to administer their own anti-trans policies.

“What that bill is really about is sending a message to school district that they can and should put in place policies that discriminate against transgender young people—and that they will have the government’s support if those discriminatory policies are challenged in court,” Suffredini tells NewNowNext. “That’s really what the law says: The government will have your back if you choose to treat transgender students poorly.”

But according to Cathryn Oakley, state legislative director and senior counsel for HRC, proponents of HB 1274 “have taken great pains” to deny what the bill actually is. Supporters say the law doesn’t “require” anyone to pass anti-trans bathroom policies, instead purporting it allows “school districts to decide what’s right for them” without fear of legal action.

“It’s a completely novel approach to the question of trying to make it harder for trans students to be able to use facilities consistent with their gender identity,” Oakley tells NewNowNext.

Oakley believes one moment from committee debate on HB 1274 was telling. Rep. Andy Holt (R-Dresden), the bill’s sponsor in the Tennessee House, was asked if the legislation would also protect school districts that passed policies safeguarding the rights and safety of transgender youth. Holt didn’t “have a pat answer,” she claims.

“Ultimately, he and his expert witness had to testify: ‘We’re only going to step in to help protect school districts that adopt discriminatory policies,’” Oakley says.

After straightforward bathroom bills failed in Tennessee in both 2017 and 2018, HB 1274 isn’t the only legislation that LGBTQ advocates say attempts to sneak a bathroom bill in through the back door. As NewNowNext previously reported, House Bill 1151 would expand the state’s existing indecent exposure laws “to include incidents occurring in a restroom, locker room, dressing room, or shower,” as well as other facilities designed “for single-sex, multi-person use.”

What alarmed critics of the bill is that it appeared to single out transgender people without ever saying the word transgender. It claimed the condition of “gender dysphoria” could not be used as a defense against an indecent exposure charge.

Supporters of HB 1151 have repeatedly denied the bill is motivated by anti-trans animus. While bill sponsor State House Rep. John Ragan (R-Oak Ridge) claimed HB 1151 is merely intended to provide “clarity” on Tennessee’s indecent exposure statutes, Rep. William Lamberth (R-Oak Ridge)—who is the House Majority Leader—said it was about banning “public acts of sex in our bathrooms.”

The obfuscation on indecent exposure bills, which have been introduced in at least four states in the past few years, isn’t limited to Tennessee. When NewNowNext reached out to Washington state Rep. LuAnne Van Werven (R-Lynden) about House Bill 2088—which singled out the presence of “biological males” in women’s restrooms—after it was put forward earlier this year, the lawmaker claimed the bill was “not targeted at the transgender community in any way.”

“[T]his bill builds on existing law of indecent exposure and targets persons who intentionally and obscenely expose themselves in restrooms,” she said in a March email.

The Washington bill died before it ever received a hearing, but HB 1151 was approved by the Tennessee House earlier this month. While references to “gender dysphoria” were stripped from the bill, LGBTQ advocates remain concerned about its implications. According to Oakley, enumerating bathrooms and locker rooms as protected categories under statewide law is “still going to encourage harassment of transgender people.”

“We are concerned that the application of that bill is going to particularly be harmful to trans people, even though the underlying law honestly isn’t changing that much,” she claims.

As HB 1274 may soon receive a full vote in the Tennessee House and HB 1151 heads to the Senate, it remains to be seen whether lawmakers behind the state’s “Slate of Hate” will heed MassResistance’s warning. After previous attempts to pass a bathroom bill stalled, South Dakota put forward four anti-trans bills this year: from a “Don’t Say Trans” law in K-8 classrooms, to regulations preventing transgender student athletes from competing in accordance with their gender identity. All of them failed.

With public support for LGBTQ equality growing across the U.S., Suffredini predicted opponents of trans rights would “continue to do what they’ve always done, which is to find more and more clever ways to get lawmakers to pass laws that maybe the public won’t realize are motivated by a pure desire” to discriminate.

“It’s really important we make sure the public knows this is happening so they have an opportunity to stop it before it becomes law,” he adds.

Nico Lang is an award-winning journalist and editor. His work has been featured in INTO, Rolling Stone, The Guardian, Esquire, and the L.A. Times.
@Nico_Lang