Why Tennessee’s New Anti-Trans Bill Could Be the Worst One Yet

If this legislation passes, the state could become "the next North Carolina."

An “indecent exposure” bill in Tennessee is making headlines over concerns it could represent a new wave of legislation targeting transgender restroom use.

Introduced in February, House Bill 1151 proposes expanding the definition of indecent exposure “to include incidents occurring in a restroom, locker room, dressing room, or shower, designated for single-sex, multi-person use, if the offender is a member of the opposite sex than the sex designated for use.”

Rep. John Ragan (R-Oak Ridge) claimed HB 1151 is intended to fix what he sees as a loophole in the Volunteer State’s public indecency guidelines. Currently, the 2010 Tennessee Criminal Code excludes “enclosed single sex public restrooms,” “enclosed single sex functional showers,” and “locker or dressing room facilities” as sites where an act of indecent exposure could occur.

“This bill is about making sure that it is clear where certain behaviors are appropriate and others are not,” Ragan told Nashville news station WTVF. “The expectation is if you are in a restroom that is designated for your sex, you have an expectation of certain conditions."

But LGBTQ advocacy groups take issue with language in HB 1151 that appears to be crafted to discriminate against trans people.

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“A medical, psychiatric, or psychological diagnosis of gender dysphoria, gender confusion, or similar conditions, in the absence of untreated mental conditions, such as schizophrenia, does not serve as a defense to the offense of indecent exposure,” claims Section 2(e) of the bill.

Chris Sanders, executive director for the Tennessee Equality Network, claims these policies set transgender people up to be “arrested and prosecuted.”

“In Tennessee, you cannot change the sex designation on your birth certificate,” he tells NewNowNext. “Legally speaking, many trans people are the so-called ‘opposite sex.’ That’s how the law defines trans people.”

Under the law, a transgender woman who is reported for using the women’s restroom could face anything from a Class B Misdemeanor on the first offense to a felony conviction. If the assailant is over the age of 18 and the victim is under 13, standing public indecency laws in Tennessee state the guilty party is liable for a fine up to $3,000 and between one and six years in prison.

Critics argue these guidelines are among the harshest anti-trans proposals ever debated by a state legislature. According to Sanders, what makes it particularly harmful is that the proposal uses the “ordinary person standard” to define indecent exposure, an extremely lax legal definition.

Iowa’s laws, for instance, employ the more stringent standard of a reasonable person, often defined as the “fair-minded and informed observer.” By contrast, HB 1151 leaves it “completely up to the subjectivity” of any person who encounters a trans person in a public bathroom to declare whether they have experienced ill-treatment. Sanders says it opens up “all kinds of situations in which trans people could be in danger.”

“While a lot of people might not care, it only takes one person to care,” he says. “It opens up all kinds of situations in which trans people could be in danger.”

While the law would apply to all transgender people in the state of Tennessee, GLSEN predicts it would have “sweeping effects” on young people. Justin Sweatman-Weaver, co-chair of GLSEN’s Tennessee chapter, claims only a quarter of trans students in Tennessee have access to restrooms or locker rooms that correspond with their gender identity at school.

Sweatman-Weaver cites a recent incident in Tennessee where a trans student was “ejected” from the bathroom because they were using “the wrong room.”

“What the passage of this bill would do is encourage school districts to more strictly and harshly enforce these policies,” he tells NewNowNext. “It would also encourage hostility from fellow students and particularly adult staff members.”

Ragan has denied HB 1151 singles out members of the trans community. Instead he claims the proposal prevents trans people from using their gender identity as an “excuse” to harass others in bathroom facilities, saying it was written with the “privacy” of his granddaughters in mind.

“I don't care if they think they're a woman,” he said of trans individuals. “They've still exposed my granddaughters to something that they shouldn't be exposed to.”

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The Nashville War Memorial Plaza (also called Legislative Plaza) with the War Memorial Auditorium on the left with the Tennessee State Capitol building in the distance to the right.

Despite his attempt at feigning ignorance, HB 1151 is one of many anti-LGBTQ proposals Ragan has concocted in recent years. In 2017, he authored an ultimately successful bill protecting the “natural and ordinary meaning” of words like “mother,” “father,” “husband,” and “wife.” Critics claim it was intended to undermine the Supreme Court’s 2015 ruling legalizing marriage equality.

Ragan, who believes LGBTQ people are not “mentally healthy,” has also co-authored or sponsored bills allowing adoption and foster care agencies to refuse to place children with same-sex couples and preventing schools from addressing topics related to LGBTQ identity.

What makes HB 1151 different is it attempts to mask its animus behind an “indecent exposure” law, whereas prior bills were outwardly prejudicial.

Kasey Suffredini, president of strategy at Freedom for All Americans, claims anti-trans lawmakers are being forced to shift their approach as support for transgender people grows. A 2017 poll found that just 39% of Americans are in favor of laws like HB 1151.

“Voters are smart,” Suffredini tells NewNowNext. “They’re not tricked into supporting bathroom bans when they’re told treating transgender people with dignity and respect is unsafe for other people. They don’t buy that.”

Across the country, fewer legislatures are putting forward bills aimed at the LGBTQ community after Anchorage and Massachusetts upheld their trans-inclusive nondiscrimination ordinances. There have been just 46 introduced so far this year, as opposed to the more than 200 bills filed in 2016. Ten anti-LGBTQ proposals have already been killed.

As these bills slowly die out, Sanders predicts their proponents will continue to try narrower and more obscure tactics. He calls it the “path of least resistance.”

“We saw this some years ago on adoption,” he says. “In 2005, there were bills explicitly banning ‘homosexuals’ from adopting. Three years later, the bill became ‘people who are in a relationship who are unmarried can’t adopt.’ Those didn’t work. Now where we are is: ‘Private adoption agencies can refuse prospective parents if there’s a religious objection.’”

Opponents of equality have a long history of “becoming more subtle and more indirect in their approach,” he adds.

HB 1151 is set for a hearing in the Tennessee House on Tuesday, one of six total anti-LGBTQ bills the state will debate this year. Others include a bill forcing the Tennessee Attorney General to defend anti-trans policies passed by local school districts and the reintroduced Natural Marriage Defense Act, which would exempt the state from recognizing federal same-sex unions.

If Ragan and his Republican colleagues are able to sneak one of these bills through, Suffredini predicts Tennessee could “become the next North Carolina.”

“Lawmakers face a moment of choice,” he claims. “They can follow the will of the voters in treating transgender people with dignity or become the next North Carolina and face the consequences that come with that. No one wants to see that happen.”

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