The Volokh Conspiracy
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The result may be loosely labeled "pro-trans," but the reasoning may also support a First Amendment right of businesses or some others to decline to use pronouns that they don't wish to endorse.
The opinion is by Judge Aleta Trauger (M.D. Tenn.), in Bongo Productions, LLC v. Lawrence:
[C]ompelled speech is [not] always unconstitutional. Rather, courts have closely looked at the various situations in which compelled speech issues arise—from product labeling to compulsory displays of patriotism—and have concluded that some types of compelled speech are more constitutionally suspect than others. Although a complex range of factors may come into play, the type of forced-speech policy most likely to run afoul of the First Amendment is, generally speaking, one in which "individuals are coerced into betraying their convictions" by "involuntar[ily] affirm[ing]" the government's position on a "controversial" topic. That is particularly true when the controversial speech being compelled is not "purely factual" in nature.
The Supreme Court has expressly recognized that "sexual orientation and gender identity" are among the "controversial subjects" capable of raising such constitutional concerns. In 2021, however, the Tennessee General Assembly passed a law mandating that private parties voice a specific message on precisely that issue. The newly-enacted law requires any qualifying business with what the court will, for efficiency's sake, refer to as a "trans-inclusive" restroom policy—that is, a formal or informal policy of allowing transgender and nonbinary patrons to use the restrooms that they earnestly believe to be appropriate for them—to post a garish warning sign announcing that policy in specific language of the government's, not their, choice…. Because that kind of forced affirmance of a contestable message violates the Constitution, the plaintiffs argue, the enforcement of the Act should be enjoined….
[Bongo's restaurant] Fido has three restrooms, including two multiple-user restrooms bearing "sex designations." Before the law at issue in this case was enacted, Bernstein and the rest of Fido's management "had never thought about a formal policy as to who could use which restroom." However, the restaurant's "informal policy was to allow people to use the sex-designated restroom that best matches their gender identity." …
[In 2021,] the Tennessee General Assembly [enacted a law that] 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."
[S]ubsection (b) [of the Act] 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:
- Be at least eight inches (8″) wide and six inches (6″) tall;
- 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;
- 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";
- Except as provided in subdivision (b)(2), have a background color of white with type in black; and
- 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.
The legislative history of the Act … makes clear that the General Assembly intended the Act to reach any restroom with a verbal designation such as "men" or, by extension, a visual designation such as an icon appearing to wear gendered clothing….
"[T]he right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all." When a law not only requires an individual to speak but also mandates what a person will say, then courts must treat the law as "target[ing] speech based on its communicative content" and therefore "presumptively unconstitutional," only to be upheld "if the government proves that [the law is] narrowly tailored to serve compelling state interests." …
There can be no serious dispute that the Act involves compelled speech. The required signage must be posted on a business owner's premises. It is directed at the business's customers and purports to describe the business's own policy. The business owner is responsible for procuring the sign, adhering to the mandated design, and making sure it remains hanging and visible. In other words, while the message of the sign is one selected by the Tennessee General Assembly, the speaker is the business or other establishment subject to the Act.
It is similarly beyond reasonable dispute that the plaintiffs object to the message required. "The First Amendment mandates that [courts] presume that speakers, not the government, know best both what they want to say and how to say it." …
[T]he Supreme Court has recognized that a less demanding level of scrutiny applies to laws that merely compel commercial actors to disclose "purely factual and uncontroversial information about the terms under which [their] services will be available." The defendants suggest that the Act is such a law.
The exception allowing greater leeway for compelled statements of true facts in a commercial setting plays an important role in First Amendment law, particularly with regard to the government's ability to foster transparency and accuracy in the interest of protecting consumers. That exception, for example, allows the government to require truthful warning labels on dangerous products, and to require certain businesses to disclose their fee structures to prevent hidden costs,
The Act, however, is a poor fit to that model of permissible regulation. For one thing, the Act applies to any "public or private entity or business that operates a building or facility open to the general public," regardless of the commercial nature of the facility involved. The Act, accordingly, is untethered to any particular commercial transaction.
Moreover, even when the facility at issue is commercial in nature, like Bongo's are, the matters governed by the Act are, at best, tangentially related to the relevant commercial activity. Public restrooms exist for the convenience of a business's customers, not as the business's actual product. A restaurant sells food, not access to plumbing. Accordingly, even when the Act is applied in a commercial setting, the speech involved is not itself commercial in nature, at least not as that term has been used by the Supreme Court. See NIFLA v. Becerra (2018) (holding that commercial speech standard did not apply to law requiring disclosure that "in no way relate[d] to the services that [the regulated businesses] provide[d]").
The even greater problem for the Act, however, is that the content of the required signage is not "purely factual." It is not difficult to imagine a law that did require purely factual disclosure of facilities' restroom policies. Such a law could, for example, simply require every qualifying facility to fully and accurately disclose its policies in language of its choosing. Whether that approach might ultimately salvage the constitutionality of the Act is not before the court, but it would, at the very least, be closer to the kind of factual transparency law typically upheld.
The Act, however, does not simply require a facility to accurately disclose its policies; it requires the facility to voice the government's characterization of those policies. That characterization, moreover, is not itself simply some neutral, non-ideological statement. Embedded in the language required by the Act are normative premises that, whether or not a person agrees with them, simply cannot plausibly be characterized as factual in nature.
First, it is not an assertion of fact that a facility with a trans-inclusive restroom policy necessarily allows individuals to use a restroom "regardless of the designation of the restroom." As the court has already noted, most restrooms do not expressly endorse any particular paradigm of thinking about sex or gender; they just say whether the restroom is for "Men" or "Women" without elaborating further. Accordingly, a restroom designated as for "Men" could be construed in at least two ways, depending on one's underlying assumptions. It could be interpreted as for both transgender and cisgender men, as the plaintiffs would suggest, or it could be construed as only for individuals who meet the defendants' preferred definition of "men," which relies on observed biology at birth. Only the latter of those two interpretations, however, would suggest that, when a transgender man uses a men's room, he does so "regardless of" its designation.
The underlying disagreement is not one of fact; rather, it occurs on the shifting and continuously up-for-grabs level of language and norms. The warning mandated by the Act requires the plaintiffs to adopt and, by extension, endorse the government's preferred but unambiguously contested view of how gender works. It therefore goes far beyond merely requiring a purely factual disclosure.
The same issue arises out of the fact that the plaintiffs would be required to use the phrase "either biological sex." The evidence in this case plainly establishes that the question of whether humans should be organized into two binary and all-inclusive "biological sexes" involves contested ideological premises, not merely a statement of fact. The fact that the Act offers no alternative to using that phrase means that the Act requires a regulated establishment to take a position on those contested issues that may be against its will.
Indeed, insofar as the required signage does address questions of fact, it is, if anything, potentially misleading, or at least confusing, in relation to its own purpose. Despite the fact that the Act was, according to its own legislative history, plainly and expressly directed at establishments with trans-inclusive, but gender-segregated, restroom policies, the required signage does not actually describe such a policy.
Rather, the clear implication of the required signage is that the regulated establishment permits any person to use any restroom—despite the fact that that is not actually what a trans-inclusive policy would necessarily entail. A business can allow a transgender man to use a men's restroom without opening that restroom to everyone. The Act, however, requires establishments that employ gender-segregated—but trans-inclusive—restrooms to post signage that plainly obfuscates that fact. The Act, in other words, does not actually require businesses with trans-inclusive policies to accurately disclose their own policies; rather, it forces them to endorse an inaccurate version of those policies that does not appear to exist much of anywhere outside of the imaginations of people who oppose the recognition of transgender identities altogether.
A list of ingredients is a statement of fact. A warning that smoking causes cancer is a statement of fact. A disclosure that the ostensible price of a service will be supplemented by a substantial transaction fee is a statement of fact. And a neutral description of who is permitted to use a restroom would be a statement of fact, even if a potentially unnecessary one.
But the Act, by requiring private parties to speak as if they agree with contestable ideological premises that they in fact find highly objectionable, ventures far beyond the realm of pure facts, into the zone of values and judgments. Individuals—including public officials—are of course permitted to adopt whatever values and judgments they ultimately prefer. The bar for forcing a person to echo someone else's values and judgments, however, is high, and it cannot be lowered by comparing the Act to factual disclosure obligations that are plainly inapposite. Strict scrutiny, therefore, applies….
Finally, insofar as the question of whether the required signage is purely factual is not determinative of the standard of review, the court holds that the plaintiffs have established that strict scrutiny applies because the underlying message is unambiguously controversial. The Supreme Court has recognized that, even if a regulation nominally requires only factual disclosures, the government can still wield that regulation in a way that improperly privileges one highly contestable viewpoint over another in violation of the First Amendment. In NIFLA v. Becerra, the Supreme Court considered a California law requiring facilities offering reproductive health-related services, including "crisis pregnancy centers," to "disseminate a government-drafted notice on site." The notice was purely factual, informing the recipient that "California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women." The Supreme Court nevertheless held that the law violated the First Amendment because it, in effect, "co-opt[ed] the [regulated] facilities to deliver its message" on the highly controversial topics of contraception and abortion.
That holding, moreover, did not depend on the underlying statute's requiring anyone to expressly endorse or decry abortion or contraception; it did no such thing. Rather, the Supreme Court recognized that, even if the required notices were technically factual in nature, their function and context made it inappropriate to judge them pursuant to a standard designed for "health and safety warnings long considered permissible, or purely factual and uncontroversial disclosures about commercial products."
It bears noting, moreover, that there is a well-established recent history of controversy, not merely around gender identity generally, but specifically surrounding the issue of how gender identity relates to public restrooms. Indeed, the "message that gender identity protections create peril in bathrooms" is so commonplace that it even has a colloquial name: the "bathroom argument." The practice of directing discussions of transgender identity back to an exaggerated specter of danger in public restrooms has been ongoing for over a decade and has surfaced across states and regions.
The plaintiffs find themselves on one side of this argument, with the defendants apparently on the other. The issue in this context is not who is right. Rather, what matters under the Supreme Court's caselaw is the fact that the controversy exists, that it is hard-fought and substantial, that it is ideological in nature, and that it would be incompatible with the First Amendment to force a person on any one side of that disagreement to endorse the opposing position…
[T]he Act is [therefore] subject to strict scrutiny, [so] it must be narrowly tailored to further a compelling government interest, or else it violates … the First Amendment. Although at least one key supporter of the Act in the General Assembly justified its requirements in relation to supposed risks of sexual assault and rape, there is (1) no evidence, in either the legislative record or the record of this case, that there is any significant problem of individuals' abusing trans-inclusive restroom policies for that purpose and (2) no reason to think that, if such a problem existed, the mandated signs would address it. Indeed, the defendants do not even attempt to argue that such fears are well-founded, let alone compelling.
Instead, the defendants argue that the Act furthers Tennessee's "compelling interest in ensuring that patrons are informed of the bathroom-use policy at businesses they frequent." The defendants do not offer any meaningful evidence that would establish the "compelling" nature of such an interest, resting instead on their claim that that interest is "readily apparent." That is debatable, to say the least, and the Supreme Court has frowned upon similar vague appeals to "common sense" to overcome "evidentiary shortcomings" of the government's stated rationale for a law restricting speech.
In any event, even if the interest that the defendants have identified is compelling, the Act does not even come close to satisfying the narrow tailoring requirement, as it is replete with provisions that could be narrower or even wholly omitted in favor of a less coercive and stigmatic alternative. The Act could, for example, merely require all businesses to disclose their policies upon request. It could permit businesses to choose their own factually accurate language for describing their policies. It could, at the very least, permit a business to design its signage without a cartoonishly alarmist color scheme. Whether or not those alternatives would be constitutional, they would certainly be far more narrowly tailored than the Act is now. There is, moreover, no reason to think that such alternatives would be less effective than the Act. The Act therefore fails strict scrutiny and cannot be constitutionally enforced….
Congratulations on their victory to Stella Yarbrough of the ACLU Foundation of Tennessee, and Rose Saxe, Emerson Sykes, and Malita Picasso of the national ACLU Foundation. For more on this area of First Amendment law, see generally my 2018 article, The Law of Compelled Speech.