'Special Access to Discriminate' Act Likely to Pass

A bill speeds through the Legislature that will prevent cities from adding LGBT anti-discrimination policies

When House Bill 600, the "Equal Access to Intrastate Commerce Act," reaches the Tennessee State House for a vote on Monday, April 25, it will be the first time an "anti-equality" piece of legislation has come to the House floor since 2005, says Chris Sanders, spokesperson for the Tennessee Equality Project. The bill is expected to pass.

Dubbed SAD, or the "Special Access to Discriminate" Act by TEP, the bill "prohibits any local government from imposing on any person an anti-discrimination practice, standard, definition or provision that varies in any manner from the definition of ‘discriminatory practices' under present law or other types of discrimination recognized by state law but only to the extent recognized by the state."

According to supporters, the bill merely formalizes some definitions and keeps individual county and city governments from a barrage of local interpretations of discrimination. Knox County's Rep. Ryan Haynes voted "aye" when the bill came skidding through the Commerce Committee last week en route to the Calendar & Rules Committee, as did Rep. Jimmy Matlock, who represents parts of Loudon and Monroe counties, Art Swann of Maryville, and John Ragan of Oak Ridge.

Haynes says he'd received lots of calls from local business owners concerned about allowing more government interference in their contractual dealings. "I think if it's not passed we're going to have a hodgepodge of laws and every county developing its own," he says.

From TEP's point of view, HB0600 is a smoke screen from House sponsor Glen Casada of Franklin to pass an anti-equality law, one that would keep local governments from extending LGBT-inclusive workplace protections to employees of contractors—essentially allowing discrimination against LGBT people by companies doing business with local Tennessee governments.

"If local governments can only go by the protected classes enumerated by the federal or state government, it leaves out sexual orientation and gender identity," says Sanders.

Not coincidentally, those are two newly protected classes in a Metro Nashville ordinance passed in March. If SAD passes the entire Legislature, and both sides seem convinced it will, not only would other Tennessee locales be prohibited from passing any legislation including protection based on sexual orientation and gender identity, but Nashville's ordinance would be nullified.

Another dart at the LGBT community comes with the bill's last line: "this bill clarifies that with regards to discriminatory practices and human rights, ‘sex' means the designation of the person as male or female as indicated on the person's birth certificate."

Not only does the statement underline the sponsors' intent for Tennessee to remain as the only state by statute that forbids the change in gender on a birth certificate for post-operative transgenders, it effectively prohibits any interpretation of discrimination because of "sex" being interpreted as "sexual identity," says Sanders. "Representative Casada knows that existing state protections include words like gender and sex, and there may be an opinion that those words could protect based on gender identity. They want to make sure we're talking about birth gender and not transgender—they don't want to protect transgender in any way."

Introduced in early February, since being placed on the House Commerce Committee's calendar April 12, HB0600 has fairly zipped through the system, being recommended for passage by the Commerce Committee and passed to the Calendar & Rules Committee and onto the regular calendar in the space of two weeks.

Part of the reason the bill may have caught on so quickly with legislators is that in a bludgeoned budget environment, its Fiscal Summary says attendant costs are "not significant," making it one of the few bills the Legislature can afford to pass.

Sanders says TEP disagrees with the fiscal assessment, too. "There is probably going to be a legal challenge that will eat up funds of the state, and any time you mess with local laws, it costs money to undo them."

In an unusual side note, David Fowler of the Family Action Council of Tennessee circulated a video to supporters that showed a bearded man following a girl into a women's restroom, and asked them to call on members of the House Subcommittee to vote for HB0600 to prevent such incidents. TEP circulated a petition to protest, with the general theme that "The SAD Act will not protect children from assault in public restrooms. Parents and law enforcement do that."

A simultaneous and same-named bill sponsored by Casada, HB0598, was successfully stalled by TEP and even a couple of conservatives in the Legislature—it would have stopped cities not just from banning discrimination, but also from setting their own policies on minimum wage, health care, and family leave.

But on this one, TEP acknowledges it could be fighting a losing battle. It's still committed to working on the Senate side, but if the legislation eventually passes, "we're looking at options," says Sanders. "There is certainly a lot of talk in the community about what kind of court challenge would be in order. TEP doesn't have a legal arm, so it wouldn't be us, but those kinds of issues are being explored.

"I don't think you'll see the community lie down and take this."