Equality On Trial

Appeals court in Tennessee hears arguments in case challenging state’s removal of LGBT and other non-discrimination protections

June 11, 2013

By Scottie Thomaston

Bullying DeBoer ENDA LGBT Legal Cases Right-wing Transgender Rights

By Scottie Thomaston

In Tennessee yesterday, a state court of appeals heard arguments in the challenge to HB600, nicknamed the Special Access to Discriminate (“SAD Act”) by equality organizations. The law stripped local governments in the state of their non-discrimination protections for LGBT Tennesseans. The challenge, argued by Shannon Minter of the National Center for Lesbian Rights and joined by equality organizations including the Tennessee Equality Project and the Tennessee Transgender Political Coalition, says the law violates the equal protection of the laws; it relies on both the state and United States constitutions.

In part the complaint is based on Romer v. Evans, the 1996 Supreme Court case, which held that Colorado couldn’t exclude gays and lesbians from all political protections. The state had passed a ballot initiative removing these protections from gays and lesbians alone. The amendment nullified existing non-discrimination provisions in two cities. The Court said this violated equal protection principles. As the complaint discussed, this amendment is broader than Colorado’s: it removes all protections for any groups not already covered under state law, which means it eliminates protections for people with disabilities as well. It also impairs anti-bullying measures, whether against LGBT people or those with disabilities.

The case is on appeal after it was dismissed by the trial court. The parties are arguing whether it should be reinstated. The Tennessean reported:

[…]Monday, attorney Shannon Minter with the San Francisco-based Center for Lesbian Rights told the three-judge appeals panel that there is “nothing like this in the country that specifically excludes one group of people.” She called the state law “a dangerous statute that warrants some judicious scrutiny.”

But Assistant Attorney General Adam Futrell said the state law, known as H.B. 600, merely clarified who could seek legal relief in workplace-related discrimination claims.

“The core issue,” Futrell said, “is none of the plaintiffs were hurt.” He called that point an “inescapable fact.”

Judge Holly Kirby questioned that line of reasoning.

“Let’s assume that the legislature defines ‘sex’ to only include the female gender,” Kirby asked. “Are you saying that male plaintiffs would not have standing to question the constitutionality of the law?”

Futrell responded that in such a case, plaintiffs would be legally protected, and that the law does not mean that gays and lesbians cannot seek legal relief in the event of discrimination. Instead, he said, the law standardizes workplace protections, preventing Tennessee from having an inconsistent patchwork of laws about workplace discrimination.

The appeals court will render a decision on whether the case will be retried in court on the merits. This case has the potential to be wide ranging eventually, the Tennessee law is so broad, wiping away all protections, that large numbers of minority groups are affected across the board. There’s a provision of the law that forbids Tennesseans from changing their sex on their birth certificate, meaning that whatever their doctor decides their sex is at birth is how they are forever identified for legal purposes, unless they move away to a state that allows the change.

TTPC, the transgender rights group involved in the case, issued a statement via Facebook:

Earlier today, attorney Shannon Minter of the National Center for Lesbian Rights presented the case for the plaintiffs in Howe v. Haslam. Most of the questions from the judges revolved around Section 2 of HB600 which, for the first time in the history of any state, defines “sex” based on a person’s original birth certificate. Minter argued that this clearly targets Tennessee’s transgender population for discrimination in the workplace since those born in Tennessee cannot change the gender on birth certificates. The three judge panel from the West Tennessee section appeared to be bothered by the targeting of a group by the state. We do not know when they will issue their ruling, but we were honored to be represented by such a talented team of attorneys today!

The decision could come at any time; there is no timeline. The case is called Howe v. Haslam.

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