School Protection and Student Privacy Act Moves Forward In Tennessee House

NASHVILLE, Tennessee – The School Protection and Student Privacy Act, sponsored by Representative Andy Holt (R-Dresden) in the House, moved forward from the Civil Justice Committee Wednesday.

After more than an hour of debate and testimony by five witnesses, House Bill 2620 passed by a vote of 4 ayes, 2 nos and 1 abstention.

Following the vote at the bill’s first stop, Holt told The Tennessee Star, “Now more than ever, it’s important that we empower and encourage local school districts to protect boys and girls from being compelled to use the restroom, shower or undress in the presence of those of the opposite sex.”  He further explained,

While in a sense it’s very sad that we even have to address things like preventing girls in public schools from having to shower with or undress in the presence of boys, there’s a small but vocal minority determined to dismiss these objective biological distinctions. We can’t just sit idly by and pretend that this will all work itself out in a good way. We have to take a stand now. If not now, then when?

The bill expands the duties of the State Attorney General and Reporter (AG) to “include representation of a Local Education Agency (LEA) or certain LEA employees in a legal proceeding arising out of the LEA’s adoption of a policy or practice designating multi-person restrooms, locker rooms, or other facilities for used based only on one’s biological sex.”

Due to concerns expressed in the Civil Justice Committee meeting the week prior, bill sponsor Holt presented an amendment to the bill that would limit the scope of the AG’s responsibility in representing a LEA.

As Holt explained to the Committee, “The amendment to the bill does expressly say that this would arise out of an LEAs adoption of a policy or practice designed to protect the privacy of students from the exposure of others of the opposite biological sex in situations where students may be in various states of undress. Locker rooms, showers, bathrooms.”

However, Holt did clarify, “This bill says nothing about what the school district must do,” leaving the school board to determine the policy for the LEA, provided that it is not willful, malicious or criminal.

Speakers against the bill were Chris Sanders, Executive Director of Tennessee Quality Project, who said he had a letter of opposition signed by 72 pastors across the state; a self-described “trans” and 12-year student of Williamson County Schools, who engaged in a bit of a running debate with House Caucus Leader Glen Casada (R-Franklin), as well as Russell Marty, legislative liaison for Governor Haslam’s office.

Marty said the position for this bill is that it is “flagged” for the Governor’s office and for the Department of Education. He continued,

We do feel that in light of the Trump administration’s rescindence of the guidance that was from the Obama administration, that there is no requirement from the Federal government. The Federal government as well as the state has essentially left this issue in the hands of LEAs and said that LEAs you have the discretion to make your own policy decisions. Therefore, we feel that the policy decisions should be defended by the local board of education. I think the attorney general’s office has indicated a willingness to assist LEAs whenever there are potential lawsuits brought up and we feel like this is something that is best handled by a local board of education’s counsel.

Casada and Holt both made comments as to the cost of a lawsuit, if it were to be handled by a local school board, with Casada speculating it would be “multiple millions and bankrupt an LEA.” Holt, using the Lake County school board as an example, taking on the ACLU or some national interest group with the current relatively undefined role of the AG, called out Marty’s suggestion they have the means to handle that lawsuit “laughable.”

Holt also took on the argument that the withdrawal of the Obama guidance letter makes the issue irrelevant. He explained, “The U.S. Court of Appeals of the Sixth District, which includes Tennessee recently ruled that a prohibition of workplace discrimination under Title VII, of the Civil Rights Act in 1964 on the basis of sex includes gender identity, which is the same word used in Title IX. Title IX would cover the school systems. So, if judges have previously determined in Title VII that the word sex can also include gender identity, then it is a very clear distinction to say that they could also view sex by gender identity in Title IX as well.”

Holt also made the point that a lawsuit was filed as recently as the past month in the state of Indiana over the accommodation of a transgender student in a bathroom.

Speaking in favor of the bill was Jennifer Hamblin, elected Cheatham County School Board member, who testified as to the challenge school boards across the state have with regard to the threats of lawsuits, which is a relatively recent phenomenon.

Long-time grassroots activist with a passion for education, Jackie Archer of Murfreesboro, briefly addressed the student privacy aspect of the bill.

Much of Holt’s debate with the committee was with Representative G.A. Hardaway (D-Memphis), who said he couldn’t get to a place where he could support the bill.

Voting in favor of the bill were Republican Representatives Mike Carter (R-Ooltewah), Glen Casada (R-Franklin), Andrew Farmer (R-Sevierville) and Debra Moody (R-Covington). Voting against the bill were Democrat Representatives Bill Beck (D-Nashville) and G. A. Hardaway (D-Memphis). Republican Representative Martin Daniel (R-Knoxville) abstained.