A House education subcommittee on Tuesday approved a controversial bill aimed at requiring students to use bathrooms that match their sex at birth.
The measure, sponsored by Rep. Susan Lynn, R-Old Hickory, and Sen. Mike Bell, R-Riceville, would "require that a student use student restroom and locker room facilities that are assigned for use by persons of the same sex as the sex indicated on the student’s original birth certificate."
The bill was debated for nearly an hour, in front of a room filled with both proponents and opponents of the measure.
Those speaking against the bill said it would be harmful to transgender students and could potentially put the state at risk of losing hundreds of millions of dollars in Title IX funding, a point that has recently been reiterated by Gov. Bill Haslam.
Henry Seaton, an 18-year-old transgender student at Beech High School in Hendersonville, said he faces restricted access to restrooms, forcing him to use the bathroom specifically dedicated to teachers.
“Only being able to use one restroom in the school has proven to be really difficult to me,” Seaton said. “There are lots of times where I don’t use the restroom and I go home with stomach aches and dehydration.”
Seaton cited a Williams Institute School of Law study that found 54 percent of transgender students experience physical complications because of tactics they take to avoid using restrooms.
After pointing out that a high percentage of transgender youth attempt suicide, Seaton warned, “When you don’t have a restroom to use, that really encourages those numbers to increase exponentially.”
Tennessee Suicide Prevention Network Executive Director Scott Ridgway told the committee that they should not adopt a statewide policy, but instead continue to allow individual schools to make accommodations for transgender students.
“This bill can actually contribute to suicides or suicide attempts among our transgender youth in Tennessee,” he said.
Hedy Weinberg, executive director of ACLU-TN, warned the committee that allowing the bill to become law could put the state at risk of losing as much as $6 billion in federal funding.
Although the bill’s fiscal note found no significant impact on state and local government, the state Department of Education put a fiscal flag on the legislation because of the Title IX concerns.
"This is an emerging area of the law that courts across the country are currently considering, and decisions on sensitive issues such as these are best made at the local level based on the unique needs of students, families, schools and districts while working closely with local board counsel," Ashley Ball, the department's communications director, recently told The Tennessean.
"Right now we're handing that on a local basis, and I think they're dealing it with on an incident-by-incident situation," Haslam told reporters last week. "I actually trust our teachers and local school boards to figure out how to make those accommodations in those situations."
Speaking in favor of the bill were Matt Sharp, a lawyer with Alliance Defending Freedom, and Kevin Carr, whose daughter attends McGavock High School.
Sharp argued the issue basically comes down to Constitutional rights, saying, “Opening boys and girls restrooms and locker rooms to members of the opposite sex would directly violate this privacy right.”
Sharp said doing so would put students at risk of “bodily exposure” to members of the opposite sex and could be demeaning, humiliating and harmful. He also pointed out that Title IX rules allow schools to maintain restrooms, locker rooms and changing facilities based on biological sex, before adding that the federal Department of Education has resorted to threatening states to comply with its views on the issue.
Calling the bill a reasonable balance, Sharp argued that the legislation protects the privacy of students while also allowing school officials to accommodate transgender students.
Carr said his daughter became “unnerved” after seeing a boy in the girl’s bathroom at school.
“She’s not crazy about that idea and I wasn’t crazy about it either,” he said. Carr questioned what happens to the privacy rights of girls such as his daughter should the legislature not act on the issue.
Before the committee voted on the bill, Lynn summarized her arguments by saying the crux of the issue came down to concerns about privacy and safety.
Committee chairman Rep. Mark White, R-Memphis, said the panel of lawmakers had considered the bill for several hours, but Tuesday's action was the first time the bill was actually discussed in committee.
“We don’t take this lightly,” he said, adding that he understands the views of the opponents of the measure. “But we’re trying to decide the privacy of all students.”
All six lawmakers on the eight-member committee present on Tuesday voted in favor of the bill, which heads to the full House Education Administration and Planning Committee. The Senate version of the bill is scheduled to be discussed in committee on Wednesday.
After the vote, Marisa Richmond, president of Transgender Political Coalition and a history professor at Middle Tennessee State University, called the committee’s action disappointing.
“We think this is a bad bill and it shouldn’t go any further,” said Richmond, who also testified during Tuesday’s meeting.
Weinberg stressed that efforts to defeat the bill would continue.
“This legislation forces Tennessee’s schools and universities to treat one group of students differently from others,” she said. “Transgender students deserve to be treated with respect and dignity, just like everyone else.”
Sarah Warbelow, legal director for the Human Rights Campaign, added, “There are more than 10,000 transgender students in Tennessee, and they shouldn’t have to suffer the consequences of a discriminatory law that will lead to even higher rates of harassment, bullying and even suicide.”
Outside Tennessee, nearly a dozen other states have seen legislative debates over bathroom laws, including Indiana and Kentucky. Earlier this month, South Dakota Gov. Dennis Daugaard vetoed a bill that would have made that state the first in the nation to require transgender students to use bathrooms that match their sex at birth.