Tennessee's 19-Year Step Back

Tennessee's new Equal Access to Intrastate Commerce bill, one of the most far-reaching pieces of antigay legislation passed in the 21st century, has left the few LGBT people who are even aware of it utterly confused -- and that's exactly how it was intended.

The new law, signed by Republican governor Bill Haslam on Monday, immediately reversed a new Nashville ordinance that required that businesses the city contracts with function as equal opportunity employers who don't discriminate against LGBT people. But the state law went even further than voiding that ordinance -- it made it impossible for Tennessee cities and counties to enact any antidiscrimination ordinances in the future. Since Tennessee offers no protections for LGBT people and the Republican-controlled legislature makes it highly unlikely that such protections would pass statewide, Tennessee's gay, lesbian, and transgender citizens can be drummed out of work and kicked out of their apartments with little to no recourse -- something that was a possibility before, but now a situation that is unlikely to change for years to come.

While none of Tennessee's larger cities had ordinances covering discrimination against LGBT people in housing or employment, Nashville did pass an ordinance in 2009 that protected its city employees from being fired for being gay or transgender. The city also passed the contracting bill -- which came after Belmont University, which utilizes city property, fired a soccer coach last year for mentioning her partner. Nashville, the state's capital and second most populous city (after Memphis), demonstrated that it was moving in the direction of equality and would likely pass ordinances that banned all LGBT housing and workplace discrimination. Tennessee's legislature, now heavily Republican, likely saw that coming and took action.

Sen. Bill Ketron and Rep. Glen Casada crafted the equal access bill as supposedly business-friendly legislation and described it thus: "This pro-business and pro-taxpayer legislation provides that no local government can impose on any business or person, other than a local government's own employees, any personnel practice, definition or provision relating to discrimination or discriminatory practices that deviates from the requirements of state law. It also makes null and void any nonconforming requirements imposed prior to the legislation's effective date. The legislation does not affect anti-discrimination policies that businesses voluntarily adopt for the operation of their business."

The wording of the actual legislation takes away the ability of any Tennessee municipality to impose discrimination restrictions on any private business or employer, in effect taking away and preventing protections for Tennessee gays in not just employment but housing, public accommodations, and services (though cities or counties can still protect their own government employees from being fired for their orientation or gender identity, as Nashville did in 2009).

Tennessee's Chamber of Commerce actually supported the bill when it was being debated in the legislature this spring. The group, which ostensibly furthers business interests in the state, argued that it would make discrimination law uniform so that the list of protected groups and characteristics was the same throughout Tennessee. That's outrageous, says Tennessee Equality Project board chair Jonathan Cole.

"Rather than support a negative bill, why didn't they support changing Tennessee's [state] law so it protected all minorities?" Cole asks.

When the Human Rights Campaign became aware of the advancing legislation, it alerted several companies that do business in Tennessee, such as FedEx, based in Memphis. After the companies put pressure on the chamber, the organization changed its tune.

"The Tennessee Chamber supports a standard regulatory environment at the state level as opposed to potentially conflicting local regulations covering employment practices," says a statement released by the group. "That principle was the only interest the Chamber had in this bill. Because [the bill] has turned into a debate on diversity and inclusiveness principles, which we support, we are now officially opposing this legislation in its present form."

The ingenious, or perhaps insidious, thing about the bill is how wonky and unwieldy it is. Likely because it's easier to wrap one's head around, many LGBT people are concentrating more on a different Tennessee antigay maneuver -- the proposed "don't say gay" bill. The latter measure hasn't even passed the full legislature, and if it does, would ban LGBT-related lessons in Tennessee's schools -- it's hard to imagine Tennessee schools are instructing many children about the legacy of Harvey Milk (even in California, only Los Angeles and San Francisco teach gay-related lessons in their schools). But the "don't say gay" bill has created much more of a firestorm -- with stars like George Takei condemning it -- than the equal access bill, which opens the door for Tennessee's LGBT citizens to be fired and kicked to the street for perpetuity, or at least until a national antidiscrimination law passes.

"With equality advocates statewide and nationally, [the equal access bill] was harder to get traction with than the 'don't say gay' bill," Cole says. "That one people have a visceral reaction to."

A legal strategy has not yet been formalized, says Greg Nevins, a senior staff attorney for Lambda Legal. The LGBT legal organization is researching how the equal access law may hold up against Romer v. Evans, the 1996 Supreme Court decision that struck down Colorado's Amendment 2, which banned city and county ordinances outlawing antigay discrimination.

"This sounds almost identical to [the law in] Romer v. Evans -- both were state laws to repeal antidiscrimination laws and prevent the enactment of new laws," says Erwin Chemerinsky, the dean of the University of California, Irvine School of Law. "The Tennessee ordinance seems clearly unconstitutional under Romer unless there are meaningful distinctions that I don't see."

A difference that may come into play is that Amendment 2 made very clear -- in the verbiage of its legislation -- that gay people were being targeted. The equal access law doesn't state LGBT people are a target, but Cole says his group worked hard to show that the bill was a direct response to Nashville's pro-gay ordinances.

"One of the things we were very intentional about was that the legislative records showed the true intention of the bill," Cole says.

Meanwhile, Cole fears the sneaky equal access legislation may be used as a national model.

"I fear other faith-based organizations will try to use [similar bills] on states that don't have protections on its books," he says, "and doing it under the guise of a pro-business argument."