The first trans person to be elected to office in Tennessee is being treated as a second-class citizen and may be forced to use the male bathroom at work despite identifying as female.
Five women, including openly transgender member Olivia Hill, were handed a sweeping victory on Sept. 14 winning all the Metro Council at-large seats during Nashville's runoff election--making the body majority female. However, the historic election victory is being overshadowed by an anti-LGBTQ law quietly passed in May that will make it harder for Hill to do her job and simply live her life in the state.
Senate Bill 1440/House Bill 239, which went into effect on July 1, establishes sex in all state codes as “a person’s immutable biological sex as determined by anatomy and genetics existing at the time of birth and evidence of a person’s biological sex.”
What is most disturbing is the ambiguity of the law—a one page document that simply states that sex is now defined by anatomy at birth.
The law seems designed to be slippery, so that it can be nefariously enforced depending on any given interpretation. Many trans individuals in the state have proudly changed their government documents to reflect their gender identity. (Tennessee is however the only state to not allow birth certificates to be changed.) The law does not say that trans Tennesseans must change their driver’s licenses, or any other legal documents, back to their assigned gender at birth—but it creates a gray area that leaves sinister wiggle room for discrimination.
The law prioritizes discrimination at the expense of federal funding. Because the law is not in accordance with federal non-discrimination laws, according to the state’s fiscal review, Tennessee runs the risk of losing up to $2 billion in federal funds for passing the law. Bill sponsor Kerry Robertssaid it was a risk worth taking. “I mean, if defining sex, as it has traditionally meant for years in the dictionary, costs us federal funds. There’s something wrong with Washington DC,” she said.
State Senator Jeff Yarbro, however, has been outspoken in defiance of the discriminatory laws, saying “I don’t know why on earth we would take the risk of losing $2 billion of annual federal funding in order to provide a definition that nobody really thinks needs fixing.”
Hill told The Daily Beast she’d been fastidiously following the legislation since it was introduced in the Senate. “They slid it right through,” she said.
She said she has no plans to change her driver’s license back to male but admits she knows the risk she faces. “If I get pulled over for rolling through a stop sign, or something simple, and I provide my driver’s license to a police officer, and he asks if everything on that document is correct… if I say, ‘yes,’ I’ve just provided a false ID—which is a felony,” she said.
The law also opens up Hill, and all trans individuals in the state, to continued stress around the long belabored issue of bathroom usage. With sex legally defined now by anatomy at birth, the Tennessee law essentially removes non-discrimination laws from being able to protect LGBTQ Tennesseans. Much like the law does not explicitly say that a trans person must change their identifying documents, it also does not say that they must use the restroom in accordance with how they have now defined sex. But the law creates another insidious loophole with which bad actors could weaponize and discriminate.
Hill worries about using the women’s room in council buildings while she’s simply trying to do the job that she was elected to do. Within council chambers there are single occupancy restrooms, but just outside in the hall in the state building where they are located, are gendered restrooms. And while it would be absurd for Hill to be made to use the men’s room, that doesn’t mean that someone wanting to discriminate against her for using the women’s bathroom couldn’t try to use this new law to put her in jail—another place, Hill points out, where she would be forced to be misgendered due to this law.
Despite the anxieties that this new law has inspired, Hill spoke of the warm reception she’s received among council members. “It’s been wonderful,” she said. She did not wish to name names, but said that many had expressed to her that they would look the other way if the restroom issue came up.
But operating on good faith can be dangerous. On the same city council are other politicians whose values do not align with those who expressed support for Hill. Jeff Eslick for example, who won District 11 by 49 votes against open LGBTQ candidate Eric Patton, put out attack ads calling Patton “gay and tired” along with other transphobic rhetoric.
The Human Rights Campaign’s legal director Sarah Warbelow said in a statement that “extremist Tennessee Senators are continuing their assault on LGBTQ+ Tennesseans’ ability to live their lives openly and honestly.”
“This is their latest cruel attempt to stigmatize, marginalize and erase the LGBTQ+ community, particularly transgender Tennesseans. Let’s be clear: the goal of this bill is to exclude the LGBTQ+ community from nondiscrimination protections in the state of Tennessee and to perpetuate a false narrative of who transgender people are,” she said.
ACLU Tennessee Transgender Justice Advocate Henry Seaton said it was unclear what effect that law would have. “I know this is going to have a real implication. But it’s hard to predict where that real implication is going to be. A whole can of worms that are unexpected and can have really horrifying and just confusing and not understandable consequences,” he said.
As conservative state legislatures have been unabashedly waging war against LGBTQ rights, Tennessee has grimly ranked number one in anti-LGBTQ legislation proposed and passed. Since 2015 the state has passed 19 anti-LGBTQ bills into law. This year alone Gov. Bill Lee signed the nation’s first drag ban and also banned gender affirming healthcare for trans youth.
Anxiety around bathroom usage isn’t unfounded. Tennessee passed a law earlier this year that would have required any establishment that allowed people to use the restroom in alignment with their gender identity to post warning signs that read in yellow on a red background, “NOTICE. This facility maintains a policy of allowing the use of restrooms by either biological sex, regardless of the designation on the restroom.”
In May a federal judge struck down the law for violating the First Amendment. The court wrote, “Transgender Tennesseans are real. The businesses and establishments that wish to welcome them are real. And the viewpoints that those individuals and businesses hold are real, even if they differ from the views of some legislators or government officials.”
For Hill, a Navy veteran who was deployed during Operation Desert Storm, the whole issue frustratingly takes away from her hard-won win. She has fought to overcome homelessness and also won a discrimination lawsuit against her former employer, Vanderbilt University.
She said she isn’t going to let the fear of discrimination derail her from addressing the issues that she cares about, including improving utilities, infrastructure and public transit.
“I’m a plumber, pipe fitter, welder, mechanic, engineering specialist. I’m kind of a nerd when it comes to this stuff, and those are the things that excite me. I ran as a qualified human to sit at the table. It just so happened that I am the first trans person,” she said.
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