The state's top lawyer is warning of potentially dire consequences to Tennessee and local school districts if lawmakers move forward with a plan to require transgender students to use the bathroom of their birth sex.
The determination comes as LGBT groups are stepping up efforts to defeat the measure. They say Tennessee faces a national backlash — like that experienced in North Carolina, Georgia and Mississippi — if Gov. Bill Haslam signs the proposal or a related bill that would let therapists turn away clients for religious reasons.
The opinion from Tennessee Attorney General Herbert Slatery was released Monday at the request of state Reps. Mike Stewart, D-Nashville, and Harry Brooks, R-Knoxville.
In it, Slatery says House Bill 2414 opens local school districts to litigation. The measure, which is still making its way through the legislature, calls on transgender students in K-12 and college to use the bathrooms of their anatomical sex, rather than the gender they identify with.
The attorney general notes that the U.S. Department of Education has taken the position that ignoring gender identity violates Title IX, which bars sex discrimination in public education. That means districts could be stripped of federal funding if they try to enforce the law.
"In sum, if a transgender student is required by a school district in Tennessee to use a restroom or locker room that is consistent with his or her anatomical gender rather than his or her gender expression or gender identity, and if that student files a complaint, DOE, applying its current interpretation of Title IX, will almost certainly require the school district to permit the student access to the facility consistent with his or her gender expression," the attorney general writes.
The Family Action Council of Tennessee, which has pushed for the legislation, said in a press release that the opinion reflects "fear" of the federal government. The organization said no district could lose funding until the end of the litigation process, and at that point, it would have 30 days to come into compliance.
"No one needs to run around like their pants are on fire as if there is some immediate, real threat to Tennessee losing Title IX funds," the organization said.
The attorney general's analysis does not directly address a recent amendment to HB 2414. That amendment says districts can make accommodations for transgender students who appeal their bathroom assignments.
Slatery's office does note a proposal passed last month in North Carolina has already triggered litigation.
Foes call on Music Row
Opponents of HB 2414 are also pointing to North Carolina.
Earlier Monday, the national LGBT rights group GLAAD enlisted a pair of prominent Tennessee musicians to call on Haslam to stop the measure, as well as a proposal dealing with professional counselors that they also see as attacking gays and lesbians.
That legislation, House Bill 1840, would trump an American Counseling Association rule that prohibits counselors from passing on clients solely because they have personal objections. The ACA says counselors should be professional enough to set aside their views toward potential clients and provide them service.
Tennessee lawmakers gave final approval to the measure Monday night.
Supporters of HB 1840 say it's needed to keep faith-based counselors from being forced to work with clients, such as same-sex couples, with whom they have fundamental objections. They add the proposal requires counselors to connect clients with other professionals if they feel they can't help them.
Desmond Child, a gay Nashville-based songwriter whose hits include "Livin' on a Prayer" and "Dude (Looks Like a Lady)," says cloaking the issue in the guise of protecting religious liberty does not hide its true intention. He notes statehouses across the South are wrestling with similar debates.
"So why now?" Child says. "Because it's payback time for the Supreme Court passing marriage equality and making it into the law of the land."
Child and Chris Carmack, who plays a gay musician on the TV show "Nashville," both took part in a press conference organized by GLAAD to call on Music Row and others in the entertainment industry to put more pressure on Haslam and state lawmakers.
They said artists should be threatening to cancel appearances and pull out of the state if the measures pass.