Haslam signs LGBT Erasure bill into law

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Just two days after receiving the bill for either a signature, veto, or "nothing" (and effectively letting it become law without his stamp of approval), Governor Haslam has signed the controversial LGBT Erasure bill into law.

According to the Knoxville News Sentinel, he signed the bill late Thursday May 4. According to the bills' legislative history, the governor received the final language of the bill — an important element of his deliberation, according to a spokeswoman last week — this past Tuesday.

Signed into law now, the bill "requires that undefined words be given their natural and ordinary meaning, without forced or subtle construction that would limit or extend the meaning of the language, except when a contrary intention is clearly manifest."

In delivering his signature, Governor Haslam released the following statement:

I have reviewed the final language of HB 1111/SB 1085 and assessed the legislation’s potential impact and concerns. The language of this bill is for a general definitions section of the Tennessee code, which defines “road” and “sheriff,” among other common terms. For at least 150 years, courts including the Tennessee Supreme Court and United States Supreme Court have looked to a word’s natural and ordinary meaning when deciding cases.

In reviewing this bill, I do not believe the legislation accomplishes anything that isn’t already relied upon by the courts, even after the U.S. Supreme Court’s Obergefell decision in 2015. And if a potential conflict did arise, the Tennessee Attorney General has opined that a court could resolve it through other statutory interpretation rules.

This legislation passed three-to-one in the House and nearly four-to-one in the Senate. Using a word’s ordinary meaning is a well-established principle of statutory construction.  While I understand the concerns raised about this bill, the Obergefell decision is the law of the land, and this legislation does not change a principle relied upon by the courts for more than a century, mitigating the substantive impact of this legislation. Because of that I have signed HB 1111/SB 1085 into law.

Though the governor hedges toward the likelihood that the judiciary in Tennessee will continue to interpret words as it always has — similar to Attorney General Herbert Slatery's opinion, that existing law requires adherence to specific interpretative direction (i.e. the word 'widow' used in statute would be interpreted to include 'widower' as well) over vague suggestions such as HB1111/SB1085 — reaction within the LGBT community and among its supporters is not so optimistic.

The Tennessee Equality Project released the following statement:

We are very concerned for the judicial chaos this bill unleashes and its discriminatory impact on LGBT people in Tennessee. If you are the victim of discriminatory action as a result of the passage of this law in the coming weeks and months, contact us at info@tnep.org. We want to thank all of you who have worked so hard against the bill as well as all the national organizations who fought so hard against it.

Chris Sanders, Executive Director of TEP, told me that the organization is tasked now with looking for situations in which the law is "applied in a discriminatory way and then determine whether there is a legal case to overturn the law."

Marisa Richmond, of the Tennessee Transgender Political Action Committee, as well was disappointed to learn that Haslam had signed the bill. In an email to O&AN, she said: 

The Governor should have heeded the warning from the Attorney General about this legislation being constitutionally suspect.  Not only does it run afoul of the Obergefell ruling, but it potentially renders transgender Tennesseans invisible, in allowing the state to refuse to recognize a person's gender identity.  This has implications for transgender Tennesseans with regard to relationships, medical benefits, and updating government issued ID documents.

The ACLU of Tennessee also expressed disappointment, as well as its intention to fight the law on constitutional grounds when necessary. Executive Director Hedy Weinberg said, "ACLU-TN is ready to challenge any unconstitutional, discriminatory practices that occur as a result of this narrow-minded legislation."

For its part, the Nashville LGBT Chamber of Commerce recommends LGBT Tennesseans consider adjusting the language in legal documents, reverting back to words we used prior to the Obergefell decision. "If something were to happen without appropriate legal documents," said CEO Lisa Howe in a message to members, "the state may not allow LGBT people to default to being defined as a wife or a father. While our members and our community have proactively and resiliently dealt with this before, the LGBT Chamber wants all of our members to be aware of this potential issue."

And the Family Action Council of Tennessee, led by notoriously anti-LGBT David Fowler, in celebration of the governor's signature, posted a message to Facebook, reminding us that the intention of the bill — despite Attorney General Slatery's assertion that it could not force judges to do anything — is "the Legislature's way of advising judges not to enact their policy preferences into our statutes by infusing well-known words with new, unintended meanings."