Governor Haslam and Bill Lee propose the same approach to the use of school bathrooms and locker rooms by students whose choice of gender and anatomy may not match. Both Haslam and Lee have said that this issue does not require leadership from the state but instead, should be problem-solved at the local level.
Shortly after a May 2016, “dear colleague” letter was issued by the Obama Department of Education advising school districts to protect access by students to bathrooms and locker rooms “consistent with their gender identity” or risk violating federal law and jeopardizing federal funds, Haslam issued the following statement:
The White House itself has said what they issued last week is not an enforcement action and does not make any additional requirements under the law. Congress has the authority to write the law, not the executive branch, and we disagree with the heavy-handed approach the Obama administration is taking. Decisions on sensitive issues such as these should continue to be made at the local level based on the unique needs of students, families, schools and districts while working closely with the local school board counsel, understanding that this is an emerging area of law that will ultimately be settled by the courts.
The first Tennessee bathroom bill filed in 2016, requiring students to use bathrooms and locker rooms consistent with the sex indicated on their original birth certificate, was withdrawn after Tennessee Attorney General Herbert Slatery opined that the bill would jeopardize federal funding and result in the state being sued for discriminating against individuals identifying as transgender.
The Family Action Council of Tennessee (FACT), a proponent of the bill noted the “consistent opposition from the governor’s office and others.”
A 2017 video posted of Bill Lee’s answer to a question about his position on state action on the transgender bathroom issue shows his position is consistent with Haslam’s:
Why do you not believe in a ban of –or support–transgender bathrooms?
Because I believe that a statewide policy on an issue like that is not in the best interest of Tennesseans. It’s divisive and destructive and…that’s government intervention into areas of life that I don’t think we ought to intervene.
I think that those are best decided locally. Those decisions are best decided locally. And that we’ve handled personal decisions locally like that in the past, and that’s why I’m not advocating for or against a transgender bathroom bill.
I’m a very conservative guy who has very conservative principles who thinks that we often times create divisive subjects that play into the hands of more chaotic policy than if we allow local authority to make decisions on things.
Just like in education, I’m generally an advocate of pushing those decisions out.
Lee affirmed his position in a video response released by FACT after April 15, 2018. FACT’s question #6 asked each participating candidate:
In 2016, the ACLU filed a complaint with the U.S. Department of Education against a local school district for discrimination because it had designated its multi-person locker rooms and bathrooms for use based on the student’s biological sex, even though it made accommodations for students who do not want to use those facilities based on their biological sex. What are your thoughts about whether schools should be allowed to have such a policy and whether the state should protect local schools from complaints and lawsuits over such policies?
Bill Lee’s answer transcribed from video:
Local leaders need to be able to make decisions at the local level, and too often, outside groups come in trying to intimidate communities, burying them with litigation that they can’t afford. As Governor, I will do whatever it takes to defend that local decision-making process, including defending local school districts against intimidation or lawsuits.
Randy Boyd’s answer to FACT’s question #6 suggests he supports state-level action:
I do not believe in a movement toward open bathroom policies that put our children and students in potentially harmful and dangerous situations. And as your next Governor, I will work to promote policies that protect our students and our children throughout the state.
There are no posted videos or answers to the FACT questions from Beth Harwell. The FACT website explains that Harwell’s video submission did not comply with FACT’s guidelines and that “it would be unfair to the other candidates who complied with the requirements and did answer the specific questions to make an exception for Speaker Harwell and post her submission.”
Diane Black’s answer suggests there should be no question about which bathrooms students use:
So, this is pretty simple to me. I will go back to God made us. He made individuals. He made a man and He made a woman. And I say, for the men, they go into the men’s room, and for the women and the girls, they go into the women’s room. And you do your thing that’s a biological thing. You wash your hands and you come out. That’s it. It’s that simple.
‘I applaud the court’s decision to temporarily block this heavy-handed and politically motivated directive that had no right to be forced upon our schools in the first place,’ said Congressman Diane Black. ‘I have long said that a federal government so big and so powerful that it has extended its reach all the way to the school bathroom stall is a government that has lost its way. Tennesseans know that our educators and school administrators are better equipped than any DC bureaucrat to care for the unique needs of their student population, and I am pleased that our state is among those challenging this senseless decree.’
‘We all agree on the rights of students to be treated with dignity and respect, but that right must also exist alongside the rights of students to maintain their privacy and safety in their own schools,’ added Congressman Black. ‘By forcing young children into situations where they may share a bathroom with someone of the opposite biological sex, the Obama Administration has failed to strike that balance and will put our students at unnecessary risk. We must continue fighting this dangerous and coercive directive on all fronts, which is why I am a cosponsor of legislation invaliding the President’s orders and have sought to defund implementation of these actions through the appropriations process.’
Proactively defending the authority of state and local governments to protect students from being forced to share the bathroom with members of the opposite biological sex, Black cosponsored the Prohibiting the Usurpation of Bathroom Laws through Independent Choice School Act (PUBLIC School Act) of 2016.
Absent support for state level leadership, the Haslam-Lee approach leaves school districts vulnerable to actions like the federal complaint filed by a Nashville TN-ACLU cooperating lawyer against the Sumner County school district over its transgender bathroom policy. The TN-ACLU is likely to challenge any other bathroom policy which they believe discriminates against a transgender student.
The Haslam-Lee approach also means that in more liberal school districts like Metro Nashville students may be forced to share bathrooms with members of the opposite biological sex because of district policy that endorses gender identity decision-making to accommodate transgender students and employees.
Former Nashville Mayor Megan Barry whose campaign Lee financially supported, opposed the 2016 bathroom bill – “[t]his legislation doesn’t reflect Nashville’s values and doesn’t do anything to improve the quality of life for citizens of our city or state.”
In 2018, a bill intended to provide legal resources to help defend school districts that get sued over bathroom and locker room use policies, was criticized as being too costly and failed to pass out of all the committees in both the House and the Senate.
Lee has not provided any details as to how he would defend local jurisdictions that might be sued for alleged discriminatory bathroom policies.
The Trump administration in early 2017, rescinded the Obama “dear colleague” letter guidelines leaving it up to states and school districts to determine policies.
However, the issues raised by the Obama “dear colleague” letter are much broader than bathroom and locker room use by transgender students and extend to school athletics and competitions, preferred name and pronoun usage, and any other program or activity in which schools make available and in which students may participate.
Despite Haslam’s opposition to leadership from the state on the issue of transgender students in schools the issue is not going away in Tennessee.
Lee’s lack of a position on the transgender bathroom use issue has recently been the target of a billboard campaign paid for by Jobs4TNNow.