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School Protection and Student Privacy (SB 2480 / HB 2620)

Authorizes attorney general to represent a local school board and/or its employees in a legal proceeding arising out of the school board’s adoption of a policy or practice designating multi-person restrooms, locker rooms, or other facilities for use based only on one’s biological sex.

Bill Analysis

This bill does not require a local school board to have a policy on use of its restrooms or locker rooms. It merely provides that if it does have a policy protecting the privacy of students in such facilities based on biological sex, the attorney general will represent them in the lawsuit. It has been the practice of entities such as the ACLU to file lawsuits on issues such as this knowing that the school board will often settle to avoid significant attorney’s fees. This will protect the school boards from these tactics.

Talking Points

  • The bill does not require any school to have any particular policy.
  • However, the bill provides assurance to those LEAs that choose to protect the privacy of its students that they will be protected from any legal challenge.
  • Biological differences are real and objective and it is not discrimination to recognize their reality and objectivity when it comes to personal situations involving various states of undress.
  • It is within the state’s prerogative to keep schools that recognize these real and objective differences from being bullied by well-funded legal interest groups.
  • Without the protection provided in this bill, an LEA, facing potentially significant legal expenses and a desire to be fiscally prudent with limited funds, may opt not to protect privacy or to settle a lawsuit in a way that alters a policy that it has deemed to be in the best interest of all students.

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Frequently Asked Questions

Q. What does the bill do?

Authorizes the attorney general to represent local school districts (known as Local Education Agencies or LEAs) and/or its employees which are sued for having a biologically based bathroom/locker room use policy for students.

Q. Why will we only protect certain LEAs?

Actually, every LEA is eligible for the protections provided under the bill.

Q. But why does it protect only those LEAs that designate bathrooms and locker rooms on the basis of one’s biological sex?

Because such policies are consistent with the views of the overwhelming number of Tennesseans and parents, in particular, who believe it’s only natural for children to want privacy in certain personal situations involving the opposite sex.

Q. But doesn’t this bill allow LEAs to discriminate on the basis of gender?

No, schools can accommodate students with different views about sex and biology, but this question really implies that biological differences are not real and therefore irrelevant, and that’s not true. It’s also not what most Tennesseans believe, particularly when it comes to their children in very personal situations.

Q. Why is this bill necessary?

Schools across the nation are under constant threat of lawsuit if they adopt policies that respect biological differences; in 2016, the ACLU filed a complaint with the U.S. Department of Education complaining about the privacy policy adopted by the Sumner County school district in Tennessee. Local schools and local taxpayers really can’t afford to have well-funded, national organizations file lawsuits against them in an effort to bully them into disregarding very real and legitimate biological differences among our children and their natural inclination for privacy when in states of undress. The state is in a much better position and better equipped to defend against legal attacks designed to overrule decisions by local school boards that choose to respect real biological differences and the privacy concerns of students in regard to those differences.

Q. Will this effectively condone treating people differently based on sex?

This bill is not about treating anyone differently. It is about the state supporting an LEA’s decision to protect the privacy interests of students based on real biological differences between the sexes. It allows everyone to be treated the same based on an objective criterion, one’s biological sex.

Q. Isn’t this the equivalent of “separate but equal”?

No. All students are given the same right to access the same facilities that correspond to their sex.

Q: But weren’t blacks required to use different facilities, just like you’re requiring transgender students to use different facilities?

They were, but in this case, all students can use the same facilities based on their biological sex. Actually, the analogy is wrong to begin with. When it comes to matters of educational opportunity, one’s skin color is an irrelevant criterion and no distinction regarding access is appropriate, but when it comes to matters of personal privacy when one may be in a state of undress, one’s biological sex is a relevant criterion and appropriate distinctions made.

Q. But if transgender students have to use different facilities, isn’t that treating them differently from other students?

The use of a facility other than the one that corresponds to the student’s biological sex is a choice that that student makes, but it’s not because the government has denied him or her access to a facility on the same terms and conditions as all other students. But this question assumes that the law should discriminate against those children who believe in the reality of biological differences and privacy concerns related to those differences and that they should be forced to give up their beliefs and their privacy. The question is whether biological differences are real, and they are, and whether the state should protect those school systems that choose to acknowledge those differences, which they should.

Q. Will this bill require LEAs to have a policy dictating that all students use restrooms and locker rooms consistent with their biological sex?

No, each LEA will retain the right to establish whatever policy it deems appropriate.

Q. What about children with ambiguous genitalia? What do they do?

That’s up to the schools. This bill does not dictate a policy, and it allows for accommodations to be made so long as student privacy is protected.

Q. How will schools enforce the policy? Will they have to have bathroom monitors?

That’s up to the schools. The bill does not address those questions, but there is no reason to believe schools are now unable to protect student privacy in practical commonsense ways as they have for the last 100 years.

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Bill Sponsors

Hensley in the Senate
Holt in the House

Bill Status

Passed House Civil Justice Committee. Failed in Senate Judiciary Committee for failure of second to the motion for passage.

Full Text: Senate Bill / House Bill

 

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Prohibits Abortions After Viability (SB 1180 / HB 1189)

BILL SUMMARY

Prohibits abortion of a viable fetus and requires testing to determine viability if a woman is at least 20 weeks pregnant.

BILL ANALYSIS

Similar to the 20-week abortion ban (see TN Senate Bill 766). Requiring a determination of viability is an attempt to improve the odds that the law would not be held unconstitutional under current U.S. Supreme Court precedent. As passed, prohibits abortion of a viable fetus and requires testing to determine viability if a woman is at least 20 weeks pregnant.

BILL SPONSORS

Hensley in the Senate, M. Hill in the House

BILL STATUS

Signed by Governor 5/11/17. Public Chapter 353.

Full Text: Senate Bill / House Bill

 

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Insemination Statute Repeal (SB 1153 / HB 1406)

BILL SUMMARY

Also known as the Insemination Statute Repeal, this bill repeals the statute that deems a child born to a married woman as a result of artificial insemination, with the consent of the married woman’s husband, to be the legitimate child of the husband and wife.

BILL ANALYSIS

This statute is unnecessary because the Tennessee Code already provides for a presumption of paternity when a child is born to a married husband and wife. In addition, the state’s attorney general has said that the law is unconstitutional after Obergefell v. Hodges. This statute is being used by private litigants as a legal basis for arguing that it is now unconstitutional for the state to define motherhood and fatherhood in relation to biological considerations and procreation.

BILL SPONSORS

Hensley in the Senate, Weaver in the House

TRACK THIS BILL

Full Text: Senate Bill / House Bill

BILL STATUS

No action taken in the House or Senate.

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