Bongo Prods., LLC v. Lawrence

• Decision Date: 09 July 2021
• Docket Number: Case No. 3:21-cv-00490
• Citation: 548 F.Supp.3d 666
• Parties: BONGO PRODUCTIONS, LLC, Robert Bernstein, Sanctuary Performing Arts LLC, and Kye Sayers, Plaintiffs, v. Carter LAWRENCE, Tennessee State Fire Marshall, in his official capacity, Christopher Bainbridge, Director of Code Enforcement, in his official capacity, Glenn R. Funk, District Attorney General for the 20th Judicial District, in his official capacity, and Neal Pinkston, District Attorney General for the 11th Judicial District, in his official capacity, Defendants.
• Court: U.S. District Court — Middle District of Tennessee

548 F.Supp.3d 666

BONGO PRODUCTIONS, LLC, Robert Bernstein, Sanctuary Performing Arts LLC, and Kye Sayers, Plaintiffs,

v.Carter LAWRENCE, Tennessee State Fire Marshall, in his official capacity, Christopher Bainbridge, Director of Code Enforcement, in his official capacity, Glenn R. Funk, District AttorneyGeneral for the 20th Judicial District, in his official capacity, and Neal Pinkston, District AttorneyGeneral for the 11th Judicial District, in his official capacity, Defendants.

Case No. 3:21-cv-00490

United States District Court, M.D. Tennessee, Nashville Division.

Filed July 9, 2021

American Civil Liberties Union Foundation, New York, NY, Stella Yarbrough, Thomas H. Castelli, American Civil Liberties Union of Tennessee, Nashville, TN, for Plaintiffs.

Alexander Stuart Rieger, Rainey A. Lankford, Tennessee Attorney General's Office, Nashville, TN, for Defendants.

MEMORANDUM

ALETA A. TRAUGER, United States District Judge

PlaintiffsBongo Productions, LLC("Bongo"), Robert Bernstein, Sanctuary Performing Arts LLC("Sanctuary"), and Kye Sayers have filed a Motion for Preliminary Injunction(Doc. No. 6), to which Commissioner/Fire Marshall Carter Lawrence, Director Christopher Bainbridge, District Attorney General("DAG")Glenn R. Funk, and DAG Neal Pinkston have filed a Response (Doc. No. 21).For the reasons set out herein, the motion will be granted.

I.INTRODUCTION

The State of Tennessee has enacted a law ordering the plaintiffs to say something that they do not wish to say, in furtherance of a message they do not agree with.The plaintiffs challenge that law on the basis that the First Amendment typically does not permit such a mandate unless it is narrowly tailored to satisfy a compelling government purpose.Because the plaintiffs are likely to succeed on their challenge to that law and because allowing the law to be enforced while this litigation proceeds would harm them irreparably, the court will grant a preliminary injunction against the law's enforcement.

II.BACKGROUND

A.The Parties

1. Plaintiffs.Bongo is a Nashville-based limited liability company that operates a number of coffeehouses and restaurants, namely Bongo Java, Bongo East, Game Point, Grins Vegetarian Cafe, and—particularly relevant to this case—Fido.Robert Bernstein is Bongo's founder and chief manager.(Doc. No. 7-1 ¶¶ 1–2.)Bernstein states that "Bongo has employed transgender people,""Bongo's and Fido's patrons include members of the transgender community," and Bongo has "worked over the years to create a welcoming environment for members of the LGBTQ community."(Id.¶¶ 6–7.)Recently, "Fido's staff decorated the restaurant's specialty drinks sign with transgender and LGBTQ pride flag colors."(Id.¶ 8.)Like many restaurants, Fido "has multi-user sex-designated restroom facilities."(Id.¶ 3.)Until recently, Fido's management, according to Bernstein, never gave much thought to its rules, if any, about who could use which restroom, but its "informal policy was to never tell any person that they could not use a particular sex-designated restroom, and to allow transgender people to use the restroom that matched their gender identity."(Id.¶ 11.)No one ever complained to Bernstein about that approach.(Id.¶ 12.)

Sanctuary is "a performing arts venue, community center and safe haven located in Chattanooga, Tennessee."(Doc. No. 7-2 ¶ 3.)It was "founded by ... members of the transgender community in December 2020 to serve the needs of transgender and intersex people of all ages, as well as other LGBTQ people and allies."(Id.¶ 4.)Most of its staff and volunteers are transgender.(Id.¶ 5.)Sanctuary has three restrooms, two of which are multi-user restrooms.None of the restrooms has a sex or gender designation, and anyone is free to use any restroom.(Id.¶ 7.)According to Sanctuary owner and co-founder Kye Sayers, however, "Sanctuary intends [in July of 2021] to begin operating a full-service café and will be required by the local building code to post a sex-designation on its two multi-user restrooms."(Id.¶ 8.)Once those designations are added, Sanctuary's policy will be to "continue to allow transgender people to use the restroom that accords with their gender identity."(Id. )

2. Defendants.Carter Lawrence is the Commissioner of the Tennessee Department of Commerce and Insurance.Part of his duties, as Commissioner, is serving as the State of Tennessee's Fire Marshall.The State Fire Marshall is one of several officials with concurrent jurisdiction to enforce the State of Tennessee's building code.Tenn. Code Ann. § 68-120-106.Christopher Bainbridge is Commissioner/Marshall Lawrence's Director of Codes Enforcement.SeeHeun Kim v. State , No. W201800762COAR3CV, 2019 WL 921039, at *3(Tenn. Ct. App.Feb. 26, 2019).Glenn R. Funk and Neal Pinkston are the District Attorneys General of, respectively, Tennessee's 20th and 11th Judicial Districts.They are attorney public officials empowered to represent the State of Tennessee in criminal prosecutions.SeeTenn. Code Ann. §§ 8-7-103,40-3-104.

B.The Act

Tennessee law requires that "[p]ublicly and privately owned facilities where the public congregates shall be equipped with sufficient temporary or permanent restrooms to meet the needs of the public at peak hours."Tenn. Code Ann. § 68-120-503(a).The law also envisions that, generally speaking, there will be restrooms "provided for women" as well as restrooms "provided ... for men," which must be available in adequate ratios.Id.;seeTenn. Comp. R. & Regs. 0780-02-18-.03(discussing "minimum number of water closets").Outside of those basic requirements, however, the State of Tennessee has, historically, not been much in the business of regulating how private businesses navigate the question of who is permitted to use which restroom.

On April 29, 2021, however, the Tennessee General Assembly passed H.B. 1182/S.B. 1224, which the Governor signed into law on May 17, 2021 and which this court will refer to as "the Act."(SeeDoc. No. 1-1at 4.)The Act went into effect on July 1, 2021.(Id. )Subsection (a) of the Act, in its own words, requires that any

public or private entity or business that operates a building or facility open to the general public and that, as a matter of formal or informal policy, allows a member of either biological sex to use any public restroom within the building or facility shall post notice of the policy at the entrance of each public restroom in the building or facility.

Act§ 1(a).The Act defines "policy" to mean "the internal policy of a public or private entity or such policy as the result of a rule, ordinance, or resolution adopted by an agency or political subdivision of this state."Act§ 1(d)(1).It defines "public restroom" as any "locker room, shower facility, dressing area, or other facility or area that is ... [o]pen to the general public; [d]esignated for a specific biological sex; and [a] facility or area where a person would have a reasonable expectation of privacy."Act§ 1(d)(2).¹That definition "[e]xcludes a unisex, single-occupant restroom or family restroom intended for use by either biological sex."Act§ 1(d)(2)(B).

Although subsection (a) of the Act, on its face, requires only a posted "notice,"subsection (b) mandates, in detail, the form that that notice must take:

Signage of the notice must be posted in a manner that is easily visible to a person entering the public restroom and must meet the following requirements:

(1) Be at least eight inches (8") wide and six inches (6") tall;

(2) The top one-third (1/3) of the sign must have a background color of red and state "NOTICE" in yellow text, centered in that portion of the sign;

(3) The bottom two-thirds (2/3) of the sign must contain in boldface, block letters the following statement centered on that portion of the sign:

THIS FACILITY MAINTAINS A POLICY OF ALLOWING THE USE OF RESTROOMS BY EITHER BIOLOGICAL SEX, REGARDLESS OF THE DESIGNATION ON THE RESTROOM

(4) Except as provided in subdivision (b)(2), have a background color of white with type in black; and (5) Be located on a door to which the sign must be affixed or have its leading edge located not more than one foot (1’) from the outside edge of the frame of a door to which the sign must be affixed.

Act§ 1(b).The Act gives any entity or business that is in violation of the Act thirty days from being "notified that it is not in compliance" to post the required signage, after which "action" may be "taken against the entity or business."Act§ 1(c).Because the Act is situated in the state's building code, a violation of the Act—that is, not placing a sign and then refusing, after thirty days, to do so—is a Class B misdemeanor.Tenn. Code Ann. § 68-120-108(a).Violations of the building code may also lead to a "stop work" order from the State Fire Marshall directed at any "erection, construction or alteration, execution or repair" of the regulated building.Tenn. Code Ann. § 68-120-107(a).

Why did the General Assembly adopt the Act, more than two centuries into the State's existence and after seemingly many decades of public restrooms being commonplace in Tennessee, and in America, without the need for such signage?The court, of course, cannot purport to know all of the dynamics that go into each legislator's individual decision to support a bill.However, the Act's sponsor, Representative Tim Rudd, explained that he introduced the Act because he was concerned about "[n]ew executive orders ... and new legislation proposed in Congress giving transgenders [sic] rights and extending those rights."He explained, though, that the law was "not aimed at transgenders [sic]."²Rather, he was concerned, he said, about the possibility of hypothetical sexual predators who would "take advantage of" some public restroom policies to "assault[ ] or rape[ ]" other restroom users.³Shortly before that declaration, Rudd was asked by Tennessee House Speaker Pro Tempore Pat Marsh whether the...