Restroom wars and the First Amendment

The American Civil Liberties Union challenged a new Tennessee law that requires businesses to post a sign alerting customers if they allow people to use restrooms that don’t match their biological sex. The ACLU says the state is unconstitutionally compelling speech in violation of the First Amendment.

Republican Gov. Bill Lee signed HB 1182 into law on May 17, and it is set to take effect on July 1. Unlike other restroom bills, Tennessee’s does not dictate who can use a facility or target transgender individuals. Under the law, public or private entities or businesses open to the public that don’t restrict restroom access by biological sex must post a boldface notice: “This facility maintains a policy of allowing the use of restrooms by either biological sex, regardless of the designation on the restroom.”

The Friday complaint slams the new law as “anti-transgender” in its use of the phrase “biological sex” and contends it is aimed at transgender individuals even if it doesn’t mention them. It also argues the state is unconstitutionally forcing businesses to endorse an anti-transgender message.

Republican Rep. Tim Rudd, who sponsored the bill, said it is not discriminatory because it does not limit who can use a restroom, but protects the privacy of those who prefer not to share a facility with someone of the opposite biological sex. “Whether you’re a man or woman, don’t you want to know who might be waiting on the other side of a bathroom door when you go in?” Rudd said. “Everyone has a reasonable expectation to the right of privacy and dignity when using the restroom.”

But Regent Law School professor Brad Jacob said the case is not so simple: “As unsympathetic as I am with the idea that you can just declare yourself to be the opposite sex and then that makes it reality, I think this is a classic First Amendment compelled speech case.”

He noted the case’s similarity with the Supreme Court’s 2018 ruling in NIFLA v. Becerra. The justices struck down a law in California requiring crisis pregnancy centers to post a notice that the state provides free or low-cost services, including abortions, and provide a phone number. They found such a requirement unduly burdened the centers’ free speech.

States are flush with legislation related to the transgender issue, including regulating access to single-gender facilities, defending female athletes from having to compete against men who identify as women, and protecting minors from gender transition treatments.

But the Supreme Court does not appear poised to enter the fray. The justices on Monday let stand an August 2020 appeals court ruling against a Virginia school board’s policy limiting restroom use to members of the same biological sex. Gavin Grimm, a female student who identified as male, sued after the Gloucester County high school denied access to the boys’ restroom in 2017. Justices Samuel Alito and Clarence Thomas indicated they would have taken the case—four are required to put a case on the docket.

Conflict between LGBT activists and religious liberty advocates will likely continue, Jacob said, since neither side will go away. “We have to find a way of letting each side live their own convictions without trying to beat down the other,” he said. “Unfortunately, that’s not where we seem to be going at the present.”