LGBT Rights In Tennessee

Lesbian, gay, bisexual, and transgender (LGBT) Tennesseans face some legal challenges that non- LGBT Tennesseans do not. Same-sex sexual activity is legal in the state. Marriage licenses have been issued to same-sex couples in Tennessee since the Supreme Court ruling in '' Obergefell v. Hodges'' on June 26, 2015.

Sodomy law

The Tennessee Court of Appeals ruled unanimously that the state's sodomy statute was unconstitutional in 1996 in the case of ''Campbell v. Sundquist''.

In November 2023, the city of Murfreesboro within Tennessee formally removed "homosexuality" from its local ordinance that criminalises it.

Recognition of same-sex relationships

Marriage

Prior to the '' Obergefell v. Hodges'' ruling by the U.S. Supreme Court, Tennessee recognized neither same-sex marriages nor any other form of same sex-unions. The state banned same-sex marriage both by statute and by constitutional amendment.

In March 2023, the state house passed HB 878 to allow government employees to refuse to solemnize a marriage that went against their personal beliefs.

House Bill 1111

Domestic partnership

The cities of Collegedale and Knoxville together with the Metropolitan Area of Nashville and Davidson County have enacted domestic partnership benefits for same-sex couples. The Chattanooga City Council voted to allow domestic partnerships in 2013, but this was repealed by voters in August 2014. However, same-sex marriages have been available throughout Tennessee since the June 2015 Supreme Court ruling overturning same-sex marriage bans nationwide.

Adoption and parenting

Tennessee allows single persons to adopt children. Same-sex couples may legally adopt in the state. In 2007, the Tennessee Attorney General released an opinion that no state law prohibited adoption by same-sex couples and that such adoptions could be made if in the child's best interest.

In January 2020, the Tennessee General Assembly, returning for its first session of the year, immediately passed a bill to allow adoption and welfare agencies to reject LGBTQ parents if the agency cited its “sincerely held religious beliefs." The exemption would protect the agencies from liability and lawsuits. 11 other US jurisdictions have similar laws. Governor Bill Lee signed the bill into law, and it took effect immediately.

Discrimination protections

State and federal

Tennessee law does not prohibit discrimination of the basis of sexual orientation and gender identity. Since 2020, the federal protections stemming from the Supreme Court's rulings in ''Bostock v. Clayton County'' and '' R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission'' have been available in Tennessee.

This was followed in January 2021 by executive orders from the Biden administration, enabling sanctions against schools and colleges that did not follow the directives of the Equal Employment Opportunity Commission or Department of Education on the protection of gay, lesbian and transgender students. Allowed actions against non-complying schools included legal action, civil penalties and withholding of federal funding. Twenty state-attorneys general joined a suit against enforcement of the executive order and on July 15, 2022, a federal judge of the Eastern District of Tennessee issued a preliminary injunction, temporarily preventing the two agencies from enforcing their directives under the presidential order. The federal discrimination protections still apply in all twenty states, only the specific enforcements outlined in the executive order are temporarily blocked, pending continuing legal proceedings.

Local

The cities of Knoxville, Memphis, Franklin, Chattanooga and the Metropolitan Area of Nashville and Davidson County have ordinances prohibiting discrimination in public employment on the basis of sexual orientation and gender identity, but these ordinances do not apply to private employers. The Equal Access to Interstate Commerce Act blocks this from being enforced.

HB 563

This "local preemption" bill would prevent government agencies from examining a business's anti-discrimination policies when deciding whether to hire that business for a taxpayer-funded contract. A scheduled vote in the Tennessee House was rescheduled from March 14, 2019, to March 21.

Equal Access to Intrastate Commerce Act

Senate Bill 1556

''R.G. & G.R. Harris Funeral Homes v. EEOC''

On March 7, 2018, the United States Court of Appeals for the Sixth Circuit (covering Kentucky, Michigan, Ohio and Tennessee) ruled that Title VII of the ''Civil Rights Act of 1964'' prohibits employment discrimination against transgender people under the category of sex. It also ruled that employers may not use the '' Religious Freedom Restoration Act'' to justify discrimination against LGBT people. Aimee Stephens, a transgender woman, began working for a funeral home and presented as male. In 2013, she told her boss that she was transgender and planned to transition. She was promptly fired by her boss who said that "gender transition violat sGod's commands because a person's sex is an immutable God-given fit." With this decision, discrimination in the workplace based on gender identity is now banned in Tennessee.

An appeal to the case was heard by the Supreme Court, argued on October 7, 2019, term under ''R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission''. It was assigned docket number 17-1618, and decided on June 14, 2020. The finding was that employers firing individuals merely for being LGBTQ+ violate Title VII of the Civil Rights Act of 1964 in so doing. The case was decided 6 to 3.

''State of TN, et. al. v USDA, et. al.''

On July 26, 2022, Brandon J. Smith, Chief of Staff for then Attorney General and Reporter of Tennessee Herbert H Slatery III, signed a court filing of a lawsuit wherein the states of Tennessee, Indiana, Alabama, Alaska, Arizona, Arkansas, Georgia, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Utah, Virginia, and West Virginia all sued the US federal government, specifically the US Department of Agriculture; Cindy Long, the Administrator of Food and Nutrition Service at the USDA; and Roberto Contreras, the Director of Food and Nutrition Service Civil Rights Division at the USDA. At issue was Executive Order 13988, signed January 20, 2021. The order prevented discrimination on the basis of sexual orientation or gender identity, a blanket directive to comply with the '' Bostock'' SCOTUS decision.

Pursuant to that executive order, the USDA issued a policy update on May 5, 2022. Memo CRD 01-2022 set forth policies to make certain that no discrimination on the basis of sexual orientation or gender identity takes place when states process applications for SNAP benefits.

The above named states sued the USDA claiming that implementing the nondiscrimination policy would put an undue burden on the states, specifically relying on the requirements of the Administrative Procedures Act and the fact that the states were not given opportunity to comment prior to the USDA policy memo being implemented. It also argued that the USDA was trying to circumvent Congress and write law.

U.S. District Judge Travis R. McDonough decided the case on March 29, 2023, ruling that the plaintiff states were exaggerating the issues at hand. The ruling states, "Does a regulation interpreting U.S.C. § 2011, ''et seq.'', and 20 U.S.C. § 1681, ''et seq.''to prohibit such food assistance discrimination upend everything from free speech and religious freedom to living facilities and sports teams? Plaintiff States insist they do, but the Court disagrees." He went on to grant the USDA's motion to dismiss the case, at one point saying, “This case is about food stamps and nutrition education, not bathrooms, sports teams, free speech, or religious exercise,” and continuing, "Plaintiff States’ insistence to the contrary is no more than an invitation to join a political discussion untethered to applicable statutes and precedent.”

As of March 2023, current Tennessee AG Jonathan Skrmetti's office is considering an appeal. On April 18, 2023, a motion was filed for Attorney General Eric Hamilton to appear pro hac vice. The motion was granted.

Hate crime law

Tennessee law has punished hate crime on the basis of sexual orientation since 2001. The law does not explicitly include gender identity, though it is covered by federal law. Tennessee Attorney General Herbert H. Slatery stated in February 2019 that hate crime laws implicitly cover gender identity, because gender or sex is explicitly covered in Tennessee hate crime legislation - a legal first for a southern US state.

The opinion was issued in response to a query by Representative Mike Stewart (D-Nashville), who asked, "If a defendant selects the person against whom he commits a crime because the person is transgender, may a court enhance the defendant’s sentence under § 40-35-114(17)?" The question was raised in response to state Senator Sara Kyle filing a bill in the Tennessee Senate in 2018 to explicitly add gender identity to the hate crime statute. After the opinion, Stewart told reporters, "Let's see how the courts actually utilize the law in practice and let's see how much protection it provides."

AG Slatery's formal opinion stated that a crime committed against someone because they are transgender is covered under the queried statute, as, "a crime committed against a person because that person manifests a gender that is different than his or her biological gender at birth—i.e. a crime committed against a person because he or she is transgender—is thus necessarily committed because of, at least in part, the person’s gender."

The Tennessee Bureau of Investigation's hate crime statistics report from 2019 through 2021 records 0 incidents against transgender persons in 2019, 1 in 2020, and 2 in 2021. The numbers might be underreported, however, as the DOJ records at least 1 crime committed against a Tennessean as a result of their gender identity in 2019. It is also possible that intersecting regulations cause crimes that would qualify as hate crimes to not be investigated as such.

Gender identity and expression

Identity documents

In 1977, the Tennessee state legislature prohibited the state from altering the sex on a birth certificate. According to the Tenn. Code Ann. § 68-3-203(d): “The sex of an individual shall not be changed on the original certificate of birth as a result of sex change surgery."

Athletics

On March 26, 2021, Governor Bill Lee signed a bill to ban transgender youth from school athletic sports. The bill had passed the Tennessee Senate on March 1 (the vote was 27–6) and the Tennessee House of Representatives on March 22 (the voice vote was 71–16 with 5 abstentions). The ACLU threatened to sue. Mississippi, Arkansas, Alabama, West Virginia and Idaho have similar laws.

Previous efforts

When the Tennessee state legislature reconvened in May 2020 during the coronavirus health crisis, the House moved HB 1572 and HB 1689 targeting transgender student athletes. The Senate also had the ability to move SB 1736 (its version of HB 1689), as this had been under consideration before the Legislature adjourned in March.

Medical care

In March 2020, before the House adjourned during the coronavirus health crisis, it had been considering HB 2576 and HB 2827, targeting medical care for transgender youth. In May 2021, the Governor Bill Lee signed into law effective immediately and passing the Tennessee General Assembly a puberty blockers ban on prepubescent children (usually under 13 or 14 years old). Arkansas has a similar law, but it applies to anyone under 18 years old.

In February 2023, the ban was expanded to make it illegal to provide gender-affirming healthcare to any trans person under 18, both in-state and via telehealth from out of state. Governor Lee signed the bill into law on March 1, 2023, alongside the Tennessee Adult Entertainment Act.

Under the law, no minors could begin receiving gender-affirming care after July 1, 2023, and minors who had already begun receiving gender-affirming care prior to that date would have that care entirely withdrawn by March 31, 2024. People who receive gender-affirming care as minors and who later regret it will be able to sue their parents, guardians, and physicians. The law also allows the Tennessee Attorney General to sue any healthcare professional providing such care to be sued for $25,000.

On April 26, 2023, the United States Department of Justice joined the ACLU and Lambda Legal in suing the state of Tennessee, asking the court to declare the healthcare ban unconstitutional. A federal court issued a partial temporary injunction on June 28, 2023, saying, "If Tennessee wishes to regulate access to certain medical procedures, it must do so in a manner that does not infringe on the rights conferred by the United States Constitution, which is of course supreme to all other laws of the land." By June 30, Skrmetti had filed a motion with the Sixth Circuit Court of Appeals to obtain a stay on the District Court's judgement. The emergency appeal was granted by Judge Sutton, halting Judge Richardson's ruling from taking effect.

On July 8, 2023, the ruling from the District Court for the Middle District of Tennessee was temporarily reversed. One of the reasons cited for removing the injunction was the '' Dobbs'' case; another was that the court said it saw no evidence that the treatment at issue is "deeply rooted in our history and traditions." The dissenting justice, Judge White, said that she believed the law to be unconstitutional and because of that she would have only narrowed the scope of the injunction rather than issued a stay as the Appellate Court chose to do.

Judge Sutton also noted that this is a preliminary ruling, acknowledging, "We may be wrong." He has set a goal for resolving the case by September 30, 2023. Some have already considered that this case is likely to end up before SCOTUS.

In June 2023, the Attorney General's office mandated that Vanderbilt University Medical Center turn over the medical records of all patients referred to the transgender clinic for gender-affirming care. AG Skrmetti has stated that the investigation is into allegations of fraud following videos and tweets posted by Matt Walsh. VUMC complied. Two patients sued. Separately, the U.S. Department of Health and Human Services is investigating on the basis of federal civil rights laws.

Bathrooms

On May 2, 2019, Tennessee governor Bill Lee signed into law legislation defining a trans person using the bathroom corresponding with their gender identity as "indecent exposure." The Tennessee Equality Project had complained about the bill's original language, and although that language was altered before it became law, the organization still believed the bill was harmful to trans people.

In May 2021, another “bathroom bill 2.0” for Tennessee school students and small businesses was passed and signed into law by the Tennessee General Assembly and Tennessee Governor Bill Lee. It banned transgender students from using bathrooms within public schools and required small businesses to post warning signs if they allow transgender people in multiperson bathrooms. Small-business owners faced up to 6 months jail for noncompliance. This went farther than the 2016 North Carolina bathroom law that, due to economic and social damage, North Carolina repealed in 2019. Although Tennessee's law took effect on July 1, 2021, a federal judge placed an injunction on it on July 9 and later struck it down entirely in May 2022, partly on the grounds that it violated business owners' First Amendment rights.

Nashville District Attorney Response

In May 2021, Nashville Davidson County business owners and citizens learned they would not be subjected to criminal prosecution if they refused to comply with the transgender bathroom sign bill because District Attorney General Glenn Funk said his office would not dedicate any resources to enforcing the legislation he called hateful and harmful.

DA Funk released the following statement about the legislation:

''“I believe every person is welcome and valued in Nashville,” Nashville District Attorney General Glenn Funk said in a statement. “Enforcement of transphobic or homophobic laws is contrary to those values. My office will not promote hate.”''

Injunction

In July 2021, a federal judge with an injunction immediately stopped the Tennessee "bathroom signs law" within small businesses - from going into legal effect. Other lawsuits and appeals within state and federal courts are pending awaiting outcomes.

Public school bathroom lawsuits

In August 2021, several lawsuits were filed in both state and federal courts and to also " sue the whole state of Tennessee" - to put a stop the enforcement of the public school bathroom law within Tennessee that went into effect on July 1.

Transgender sports and pronouns bans

In April 2022, a further two bills was passed by the Tennessee General Assembly. The Governor of Tennessee Bill Lee is yet to either sign or veto any of the two bills. The first bill legally "bans the usage of student pronouns by teachers within Tennessee school classrooms, and to also prevent any litigation against individuals within courts of the usage of those pronouns" and the second bill legally "bans transgender individuals playing any sports, athletics and/or Olympics within Tennessee colleges" (not just schools, removing a loophole).

Drag performances

In November 2022, the Tennessee General Assembly prefiled a bill to redefine the legal definition of "adult cabaret performance" to ban any "male or female impersonators" from any public property or anywhere they could be seen by someone who's not an adult, under criminal penalty. Instructor Alejandra Caraballo of Harvard Law School was quoted as saying the bill could easily "be applied to trans people for simply existing as themselves", and that, "They're not just going after drag queens, they are trying to criminalize trans and queer people in public spaces." In February 2023, both houses of the state legislature passed the bill, sending it to the governor. Governor Bill Lee had said he would sign it. During a subsequent protest over the bill, two people - one trans woman, and one drag queen - were arrested by Memphis Police after shouting "Drag is not a crime" and "Bill Lee is a Nazi". The bill has since been signed.

Memphis DA, Steven J. Mulroy called the anti-drag bill "ill advised" he also stated that while enforcing it, he wouldn't focus on it. In March, hours before the bill would be enacted, Judge Thomas Parker of United States District Court for the Western District of Tennessee halted the bill to review it. The judge questioned the bill and its lack of qualifications, stating, "The law prohibits a drag performer wearing a crop top and mini skirt from dancing where minors might see it, but does not prohibit a Tennessee Titans cheerleader wearing an identical outfit from performing the exact same dance in front of children." In June 2023, the law was formally declared unconstitutional by a judge as vague and overbroad.

Tennessee's Attorney General, Jonathan Skrmetti, has filed a Notice of Appeal. He has also offered his legal opinion that Judge Parker's ruling is only valid for Shelby County and that the law remains in effect for the rest of the state.

Living conditions

LGBT people are often discriminated against, refused service, and beaten. Attackers who fatally wound LGBT people could use the gay/trans panic defense to lower or eliminate punishment. Often police and legal officials are sympathetic towards the anti-LGBT aggressors and turn a blind eye to attacks often calling homosexual attractions a sin.

Mandatory parental permission opt-in law

In April 2021, a bill passed the Tennessee General Assembly that legally requires mandatory parental permission opt-in - before their child or children is being taught about "sexual orientation and gender identity sex education subject curriculum choices and theories" within classrooms in all Tennessee public schools. The Governor of Tennessee Bill Lee signed the bill into law in May 2021.

Economic impact on Tennessee

In April 2021, it was reported that widespread economic and social impacts on Tennessee could be felt - due to the amount of anti-LGBT bills and laws within Tennessee (like a similar situation back in 2016 within North Carolina regarding the bathroom laws).

Summary table

See also

*Recognition of same-sex unions in Tennessee
* Tennessee Equality Project
* Tennessee Transgender Political Coalition
* West Tennessee LGBTQ+ Support LLC

References

External links

Tennessee Transgender Political Coalition

{{DEFAULTSORT:Lgbt Rights In Tennessee
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Tennessee
Politics of Tennessee
Tennessee law