Flushing Down the Reasons Senators Opposed the ‘Bathroom Bill’

Yesterday, the so-called “bathroom bill” (SB 771) was not taken up, even for discussion purposes, because none of the nine members of the Senate Education Committee was willing to make a motion to hear the bill. Keep in mind that seven of the nine members voted for the bill last year.

Do not be taken in by the reasons now being given for not supporting the bill. Here are the most popular excuses for doing nothing to protect the privacy and safety of the children in our K-12 public schools. (That is the only group to whom the bill, with an offered amendment, would have applied.)

ARGUMENT 1:

President Trump’s decision to rescind Obama’s policies made the bill unnecessary.

RESPONSE:

This is not true. President Obama tried to take away the authority of the states under Title IX to treat sex as a biological reality, trying to force on them the concept that “sex” in the law actually meant or included  “gender identity.”

Trump’s action only allowed states to decide if they wanted to treat sex as a biological reality for the purposes of bathrooms, locker rooms, etc. But Trump’s decision also left it up to the states to abandon the idea that sex is biological for the amorphous concept of “gender identity.”

The members of the Senate Education Committee essentially said they were okay with local schools choosing to allow students to choose bathrooms and locker rooms based on how they identified, regardless of their biological sex.

ARGUMENT 2:

Not passing the bill keeps the decision in the hands of local schools and out of the hands of federal judges.

RESPONSE:

This is misleading at best and not true at worst. The only way to keep this issue out of a federal judge’s hands is for schools to allow students to choose the bathroom they want to use, regardless of their sex.

Here’s why. When the ACLU or other like-minded group has sued local schools for not letting students choose the bathroom they want to use, it alleges that this is discrimination in violation of the Equal Protection Clause of the U.S. Constitution. That kind of claim means that, if the school loses, it will have to pay the ACLU’s legal fees.

Given these facts, the only way a school system can be assured it will not be dragged into federal court (where a federal judge will decide the issue anyway!) is to let students choose the bathroom or locker room they want, meaning a boy can choose the girl’s bathroom or locker room. To say “no” to that student is to risk being threatened with or slapped with a lawsuit it can’t afford to litigate; schools will capitulate.

That is why a state law was needed—to make sure any lawsuits were against the state and not local school systems.

ARGUMENT 3:

The attorney general “has the back” of school systems if they are sued for a policy that protects privacy.

RESPONSE:

This argument is irrelevant, but it should immediately be noted that it tacitly acknowledges the truth of the answer to Argument No. 2. The attorney general would never have to “have the back” of a school system if it was not correct about the fact that schools are being sued on constitutional ground because of policies that would protect privacy.

But the answer is irrelevant because the attorney general’s authority is established by state statute, and, being the attorney for the state, he or she has no authority to actually represent a school district over a school district policy. The attorney general’s authority in regard to constitutional claims is only “[t]o defend the constitutionality and validity of all legislation of statewide applicability” and “private acts and general laws of local application enacted by the general assembly.” TCA § 8-6-109(b)(9) and (10).

The school district would still have to hire, at county taxpayer expense, its own attorney to defend the lawsuit. Should the school lose in court, the county taxpayers would be the ones having to pay the attorney’s fees for groups like the ACLU that would bring the lawsuit.

There is only one instance in which the attorney general has been given authority to represent a school district, and it is in connection with suits related to “removing asbestos” from school buildings. TCA § 8-6-109(b)(13).

ARGUMENT 4:

The bill had a large fiscal cost to the state.

RESPONSE:

Picture giving up 20 cents out of $1,000, and you will have a picture of what passage of the bill was estimated to cost the state. After colleges were removed from the bill by the proposed amendment, the only cost to the state was an estimated loss of $300,000 in state sales tax. This equals 2/100ths of 1 percent of the amount of the state’s General Fund revenues. Again, that’s like giving up 20 cents out of $1,000.

Would the privacy of your child or grandchild be worth that to you?

Members of the Senate Education Committee:

  • Dolores Gresham, 615-741-2368
  • Reginald Tate, 615-741-2509
  • Todd Gardenhire, 615-741-6682
  • Rusty Crowe, 615-741-2468
  • Steven Dickerson, 615-741-6679
  • Ferrell Haile, 615-741-1999
  • Joey Hensley, 615-741-3100
  • Brian Kelsey, 615-741-3036
  • Jim Tracy, 615-741-1066

See also David’s related commentary, Looking Good Never Looked So Bad


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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