Restaurant Co. Wins Fight Over Tenn. Trans Bathroom Signs

A restaurant company and its owner have won their court battle against a Tennessee law requiring businesses to post "warning" signs outside their bathrooms if they let transgender people use them, convincing a federal judge that the statute violates their First Amendment rights by compelling speech.

U.S. District Judge Aleta A. Trauger struck down the 2021 law on Tuesday, ruling that its enforcement would violate the First Amendment. The government may state an opinion for the community, but if it "wishes to speak freely, it must speak in its own voice," rather than using "its police powers to 'compel private persons to convey the government's' message," the judge said in granting the company's motion for summary judgment and dismissing the case.

If the government does use its police powers, "then the First Amendment's Free Speech Clause comes into play and may constrain the exercise of that power," Judge Trauger said, citing a 2015 ruling by the U.S. Supreme Court in Walker v. Texas Division of the Sons of Confederate Veterans Inc. 

Judge Trauger went on to say that although not all compelled speech is unconstitutional, courts have concluded that some types of such speech are more constitutionally suspect than others.

"The type of forced-speech policy most likely to run afoul of the First Amendment is, generally speaking, one in which individuals are coerced into betraying their convictions by involuntarily affirming the government's position on a controversial topic," the judge wrote, citing another Supreme Court ruling in Janus v. American Federation of State, County and Municipal Employees, Council 31 , in 2018.

The federal judge had initially blocked the state law in July, granting a motion for preliminary injunction filed by the American Civil Liberties Union in the suit originally brought on behalf of business owners Robert Bernstein and Kye Sayers. She ordered Tennessee's fire marshal, its director of codes enforcement and two district attorneys general to take no actions to enforce House Bill 1182, which had gone into effect on July 1.

Bernstein, owner of a food and beverage business, and Sayers, owner of a performance space, claimed in their lawsuit that the law violated their First Amendment rights by compelling speech. They asked for an injunction blocking the law while their suit proceeds.

In granting the injunction, Judge Trauger found that the state enacted a law ordering the plaintiffs to say something "they do not wish to say, in furtherance of a message they do not agree with," while the business owners provided evidence showing they strive to be welcoming spaces for groups that include transgender people. The signage required by the act would disrupt these spaces and cause "real" harm that could not "simply be remedied by some award at the end of litigation," according to the judge.

The law specifies that businesses that are open to the public and allow members of either biological sex to use any public restroom must post signs — measuring at least 8 inches wide and 6 inches tall — which must say: "Notice: This facility maintains a policy of allowing the use of restrooms by either biological sex, regardless of the designation on the restroom."

The ACLU sued in June, challenging the constitutionality of the law as a violation of the plaintiffs' First Amendment rights. The suit named as defendants State Fire Marshal Carter Lawrence, Director of Codes Enforcement Christopher Bainbridge, District Attorney General for the 20th Judicial District Glenn R. Funk and District Attorney General for the 11th Judicial District Neal Pinkston.

"Plaintiffs do not want to display this notice," the suit said. "They do not agree with this characterization of their policies and they do not want to convey the Tennessee General Assembly's controversial and stigmatizing message to customers, clients and staff."

The complaint said Bernstein's company, Bongo Productions LLC, owns restaurants, coffee shops and coffee roasting operations, including a decades-old Nashville eatery called Fido.

Sayers' Sanctuary Performing Arts is a "performing arts venue, community center and safe haven" with transgender founders, according to the complaint. On Jan. 28, Sayers voluntarily dropped out of the suit.

The owners said they wanted their businesses to be inclusive and had no desire to block transgender people from using certain bathrooms, which they said could put them in physical danger and cause psychological damage. They said they received no complaints about letting people use restrooms best fit with their gender identity and noted that the legislation uses but does not define the phrase "biological sex," the definition of which they said is in dispute.

Hedy Weinberg, executive director of the ACLU of Tennessee, spoke positively of the court's decision in a statement Tuesday, pointing to Judge Trauger's finding that "It would do a disservice to the First Amendment to judge the act for anything other than what it is: a brazen attempt to single out trans-inclusive establishments and force them to parrot a message that they reasonably believe would sow fear and misunderstanding about the very transgender Tennesseans whom those establishments are trying to provide with some semblance of a safe and welcoming environment."

Weinberg applauded the court for saying that the law violates the First Amendment and harms transgender people.

"Transgender individuals should be able to live their lives free of harassment and discrimination," Weinberg said. "[The] decision ensures that the businesses who welcome them are not forced to become instruments for politicians' discrimination."

Judge Trauger granted the motion for summary judgment as to all defendants except Pinkston, ruling that because Sayers — the only plaintiff within Pinkston's territorial jurisdiction — voluntarily dismissed their claims, any remaining claims pending against Pinkston were dismissed for lack of jurisdiction.

The remaining defendants were ordered to take no actions to enforce Tennessee House Bill 1182 and Senate Bill 1224, the statutes instructing businesses to post the bathroom notices.

A spokesperson for the Tennessee Office of the Attorney General and Reporter, which is defending the state officials, declined Wednesday to comment on the injunction, saying they are still reviewing the ruling.

The business owners are represented by Stella Yarbrough of the American Civil Liberties Union Foundation of Tennessee and Rose Saxe, Emerson Sykes and Malita Picasso of the American Civil Liberties Union Foundation.

The Tennessee state officials are represented by Alexander S. Rieger and Rainey A. Lankford of the Office of the Attorney General and Reporter.

The case is Bongo Productions LLC, et al. v. Carter Lawrence, et al., case number 3:21-cv-00490, in the U.S. District Court for the Middle District of Tennessee.