Bathroom policy defense bill passes House committee

Xavier Smith • Mar 28, 2018 at 2:51 PM

A bill that would require the state to defend any local education agency or employees against lawsuits that pertain to the permitted use of facilities based on sex passed Tuesday in the Tennessee House Civil Justice Committee.

Rep. Gerald McCormick, R-Chattanooga, introduced the bill earlier this year before he dropped his sponsorship, which is now sponsored by Rep. Andy Holt, R-Dresden.

The legislation would expand the attorney general and reporter’s duties to include representation of school districts in court or administrative tribunal that results from policies to require students, faculty and staff to use restrooms, locker rooms and other facilities that align with their biological sex.

“Biological differences are real, and they are objective. It’s not a form of discrimination to recognize their reality or the objectivity thereof, when it comes to personal situations involving states of various undress,” Holt said.

Holt disagreed with the classification of the legislation as a “bathroom bill” because it also includes showers and locker rooms.

The legislation also gives the state attorney general the option to allow other legal representation in case a lawsuit arises, but the state would pay attorneys’ fees. The legislation also allows school boards to create their own policy about the use of facilities.

Some committee members felt the legislation could put the state on the hook to defend poorly written policy by some school districts.

“What I’m trying to catch is if someone just does something stupid, and then we’re hooked,” said Rep. Mike Carter, R-Ootlewah.

Holt said the legislation would not force the state to defend a policy that was malicious or enacted for personal gain.

Rep. G.A. Hardaway, D-Memphis, said he did not support the bill for similar reasons.

“This whole bill is about theoreticals and hypotheticals if we don’t know what the policies are that the [attorney general] might end up representing,” he said.

Christy Ballard, general counsel with Tennessee Department of Education, said the department would not issue a blanket statement or model statement for districts that could be used, which was a suggestion from some committee members.

“This is a matter we would never advise a specific blanket policy for a school district. These are decisions we think that need to be made on a case-by-case basis,” Ballard said. “Every family and student has different needs and wants, and every community is different. Every school facility is built differently.”

The committee passed the bill on a 7-4 vote.

The bill approaches the heavily debated public schools bathroom subject from a different angle than previous years.

Sen. Mark Pody, R-Lebanon, pulled a bill last year as a representative in the House that would have required students in state high schools and colleges to use restrooms and locker room facilities that align with the sex indicated on the student’s original birth certificate.

Pody pulled the bill, citing the changing political scope.

Several education leaders, including Wilson County Director of Schools Donna Wright, said local districts should have control over how to handle the issue.

“It’s not an issue for us. We take care of our kids,” Wright said last year, adding the district is sensitive to student needs, as well as parent and guardian concerns.

Wright said schools feature a single-stall, gender-neutral restroom that any student who feels it’s necessary is allowed to use.

Wright said in schools where enrollment can exceed 1,800 students, it would be difficult to monitor all students.

“It becomes sort of farfetched to monitor, because we simply don’t have the personnel. We don’t want to get into policing bathrooms,” Wright said.

President Donald Trump’s administration revoked guidance to public schools last year to allow transgender students to use the bathrooms of their choice. Trump argued states and public schools officials should have the authority to make their own decisions regarding transgender students and their access to restrooms and locker rooms.

Following the Trump administration’s revocation, state Lt. Gov. Randy McNally, R-Oak Ridge, said the duo’s bathroom bill is no longer necessary.

Gov. Bill Haslam expressed concerns about the bill in separate occasions in previous years. Haslam voiced concerns the bill could endanger federal funding and wanted to leave the issue up to individual school districts.

“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 said in 2016. “I actually trust our teachers and local school boards to figure out how to make those accommodations in those situations.”


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