Court hears Romer-style challenge to Tennessee law

by on June 11, 2013  •  In Constitutional law, States, Transgender
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From Equality on Trial:

A Tennessee court of appeals heard arguments Monday in [Howe v. Haslam,] 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 trial court judge dismissed the case, saying that the law did not harm any of the named plaintiffs.]

 The Tennessean reported:

[A]ttorney 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 decide whether the case will be remanded to the trial court for a ruling on the merits.]

[Another] provision of the law forbids Tennesseans from changing their sex on their birth certificate. 



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