NASHVILLE — A bill allowing Tennessee students, teachers and school employees to refuse to share bathrooms and locker rooms with their transgender peers cleared the state Senate 21-7 on Wednesday.
A similar measure passed the House 65-24 on Monday. The Senate bill, which includes slightly different language, is expected to pass the House and head to Gov. Bill Lee’s desk.
The initiative, carried by Sen. Mike Bell, R-Riceville, and Rep. Jason Zachary, R-Knoxville, would allow students, teachers and staff to refuse sharing certain school facilities — including bathrooms, locker rooms and dorms — with transgender students and sue public schools that do not provide them with “reasonable accommodations.”
Zachary previously told The Tennessean his bill would create a “clear path forward” for school officials confused over how to handle student bathroom access. But the bill raised opposition from LGBTQ rights advocates, who say the legislation discriminates against transgender children by requiring them to access facilities contrary their gender identity.
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Bell argued Wednesday some schools in his district appreciate the legislation that would provide clarity.
“If you don’t think this is an issue our schools are dealing with, you need to talk to your local schools,” he said.
The bill is the third targeting LGBTQ youths to advance out of the legislature this year, following restrictions on transgender student athletes’ access to school sports and a measure allowing parents to opt their children out of LGBTQ-related content in school.
Bill leaves decision to school administration, establishes appeal process
Under the legislation, public school administrators would decide what to do if students and staff refuse to share bathrooms, locker rooms and sleeping quarters with others for any reason. Those who make the request must submit it in writing and would have the ability to appeal or even sue the schools afterward if their request is not granted.
The bill establishes a detailed appeal process if a request is denied. Those who want to appeal must notify the school beforehand, work with the school administration and could eventually go through a hearing where the request is heard.
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Schools could get sued if students encounter someone with the opposite biological sex in the same changing room, shower room, bathroom or other facilities, according to the bill language. Any lawsuit must be brought within a year after the complaint against the school arises, the bill says.
The bill does not carve out exceptions for transgender students, whose sex at birth does not align with their gender identity. Accommodations would not include allowing students and teachers to use bathrooms designed for their opposite biological sex, or asking the schools to construct extra facilities to accommodate their needs, the bill specifies.
The Senate version of the bill lays out a more detailed process for an accommodation request, which would require the principal to approve or deny the request in writing. If the principal denies the request, they should include the reasoning in the decision. The request process would only apply to students, teachers and other school staff.
Democrats protest the bill on the floor
The bill drew concerns from Democratic lawmakers during floor debates in both chambers.
Sen. Jeff Yarbro, D-Nashville, pointed to the fiscal note of the bill, which details potential costs for litigation if the bill becomes law.
“The proposed language may result in increases in state and local expenditures associated with compliance measures and potential civil litigation,” the fiscal note reads.
Zachary assured his colleagues Monday the bill would not invite lawsuits. However, the note cites two federal laws the bill could violate.
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One is Title VII of the Civil Rights Act of 1964, which requires employers to protect the rights of transgender employees. The other is the Family Educational Rights and Privacy Act, or FERPA, which bars schools from disclosing confidential student information, including their gender identity.
“We are putting our schools in a place where they are going to be violating federal law,” Yarbro said. “It doesn’t help our schools navigate this situation, and it certainly doesn’t help the students who are targeted.”
Sen. Heidi Campbell, D-Nashville, said she talked to dozens of transgender people and their families. The bill, she said, is one of many targeting transgender students in Tennessee.
“There are human beings on the other side of these votes who will have to live with the fallout,” she said. “And I just ask us to consider: What harm are they causing us? Why are we trying to get into people’s bedrooms and doctors’ offices and bathrooms and families? Is that the role of government?”