In 2021, the Tennessee General Assembly enacted HB 1182/ SB 1224 (“the Act”), which forces businesses and other entities with public restrooms to post a government-mandated warning sign with large red and yellow “NOTICE” text at the top, and boldface black block letters on a white background stating that “THIS FACILITY MAINTAINS A POLICY OF ALLOWING THE USE OF RESTROOMS BY EITHER BIOLOGICAL SEX, REGARDLESS OF THE DESIGNATION ON THE RESTROOM.” The Act compels businesses to engage in unwanted controversial speech or risk six months’ imprisonment and/or a fine of up to $500, as well as other enforcement actions or civil penalties under Title 68, Chapter 120.
Before H.B. 1182 was enacted, no Tennessee laws referenced “biological sex.” When Tennessee law referenced sex-designated restrooms, it used the terms “men” and “women,” “male” or “female,” or simply “sex.” However, those seeking to limit rights for transgender people frequently use the phrase “biological sex” to contrast with a transgender person’s gender identity. Since 2013, state legislatures across the country have introduced bills to restrict transgender people’s ability to access single-sex spaces such as restrooms or youth sports, many of which use the phrase “biological sex.” Because the term is controversial, often offensive and confusing, the government mandated message violates the First Amendment.
On June 25, 2021, ACLU and ACLU of Tennessee filed suit on behalf of two businesses challenging the Act under the First Amendment. Bongo Production, LLC is operated by Bob Bernstein. It owns several cafes around Nashville and a coffee roasting business. One of the cafes, Fido, has sex designated multi-occupant restrooms and would be affected by the Act. Sanctuary Performing Arts, LLC and Kye Sayers operate a center specifically aimed at the transgender community in Chattanooga. The business also offers two multi-occupant, sex designated bathrooms.
Upon filing the lawsuit, we moved for a preliminary injunction. The Court granted the injunction on July 9, 2021. The Court’s order prohibits enforcement of the Act against any business in Tennessee and is not limited to the plaintiffs in the case.
In January 2022, Kye Sayers informed us that Sanctuary Performing Arts, LLC was shutting its doors and the LLC was dissolved. Those plaintiffs were then dismissed from the suit and Defendant Pinkston was dismissed as a Defendant since no remaining plaintiffs had claims under his jurisdiction. The lawsuit continued with Bongo and Mr. Bernstein as plaintiffs.
On May 17, 2022, the Court granted our Motion for Summary Judgment and held that the law violated the First Amendment, enjoining the state Defendants from enforcing the law.
PLAINTIFF(S):
Bongo Productions, LLC and Robert Bernstein; Sanctuary Performing Arts LLC and Kye Sayers (withdrew from lawsuit)
DEFENDANT(S):
Tennessee State Fire Marshal, Carter Lawrence; Director of Codes Enforcement, Christopher Bainbridge; District Attorney General for the 20th Judicial District, Glenn R. Funk; District Attorney General for 11th Judicial District, Neal Pinkston (dismissed from lawsuit)
ATTORNEY(S):
ACLU-TN: Thomas H. Castelli and Stella Yarbrough
ACLU: Rose Saxe and Emerson Sykes
