LGBTQ groups fear a bill in Tennessee, passed by the state legislature, could bring discrimination and weaken same-sex marriage or other civil rights — but legal experts say it is unlikely to effectively do so.
House Bill 1111 (also known as SB 1085) addresses how courts should interpret state law by determining that “undefined words shall be given their natural and ordinary meaning.” The law is seen by LGBTQ groups as a pathway to discrimination if those words are gender-specific, like “husband,” “wife,” “mother” and “father.”
A previously-filed bill, SB 30, stated that those words are, “based on the biological distinctions between men and women” — a distinction that excludes intersex or transgender people.
While HB 1111 was introduced right after SB 30 and is nearly identical, it omits references to any specific words.
Sen. John Stevens, who sponsored the bill in the Senate, said during Senate debate that one aim of the bill was to “compel courts to side with late Supreme Court Justice Antonin Scalia and his dissent,” USA Today reported.
But experts say the biggest legal consequence of HB 1111 is that it is redundant, confusing and riddled with conflicts.
Still, LGBTQ groups are urging Gov. Bill Haslam to veto it on the basis that it could perpetuate the mistreatment and civil rights abuses of LGBTQ people.
Haslam’s office told the NewsHour Weekend that he “deferred to the will of the legislature,” signaling that he intends to sign the bill.
What HB 1111 says
- In state law, “undefined words shall be given their natural and ordinary meaning.” The bill also specifies that interpreting state laws should not involve “forced or subtle construction that would limit or extend the meaning of the language, except when a contrary intention is clearly manifest.”
- SB 30 was introduced first. It was sponsored by Republican state Sen. Janice Bowling and written by David Fowler, President of the Family Action Council of Tennessee. SB 30 specified that the words “husband,” “wife,” “mother” and “father” should be “given their natural and ordinary meaning.” The meaning of those words, the bill said, should be “based on the biological distinctions between men and women.”
Neither Farmer nor Stevens responded to requests for comment. Fowler, whose organization opposes same-sex marriage and rights for transgender people, told the NewsHour Weekend in an email that he wrote SB 30 to address the changing ways that judges interpret language, especially around civil rights issues. “Judges increasingly look for ways to infuse new meaning into words to suit their policy preferences,” Fowler wrote.
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Why are LGBTQ groups worried?
- They say the bill could enable discrimination. The bill does not specify what “undefined words” should be given their ordinary meaning — but LGBTQ advocates worry that Tennessee laws that use gender-specific words like “husband” and “wife” could be interpreted in ways that invalidate same-sex marriage, which was legalized by the Supreme Court’s 2015 ruling in Obergefell v. Hodges.
Tennessee Equality Project spokesperson Chris Sanders said he fears that the bill could also encourage courts to interpret laws around divorce and adoption in ways that exclude LGBTQ people. “Would those couples eventually prevail in court? Of course they would. But in the meantime, their adoption is held up. Or their divorce is held up,” he said.
Jennifer C. Pizer, law and policy director at Lambda Legal, called the bill “unnecessary” and “confusing.” She said advocates fear that, “if Gov. Haslam signs the bill into law, it will create significant confusion and will be taken (improperly) by some people as legitimizing discrimination, thereby increasing the mistreatment of LGBT people in Tennessee, and same-sex couples in particular, in a state without public accommodations, housing or private sector employment nondiscrimination protections in state law.”
- They argue it echoes anti-LGBTQ rhetoric. By specifying that words should be interpreted by their “natural” meaning, the bill evokes rhetoric used by people who oppose same-sex marriage that being LGBTQ is “unnatural,” Sanders said.
What legal experts say
- The bill reiterates a common legal rule. Specifically, all courts abide by the “plain meaning” or “ordinary meaning” rule, which obliges them to interpret words based on their usual meaning. That rule, “has been long and consistently applied by courts” in Tennessee, the state’s attorney general Herbert H. Slatery III pointed out in an April 13 opinion on the proposed legislation.
- The bill could conflict with Obergefell v. Hodges, but would likely be overruled, Slatery added, “if gender-specific words in [state laws] were construed according to the proposed legislation.” In other words, a family law that specifies “husband” and “wife” could lead a judge to deny the existence of same-sex marriage. But if that conflict brought such a case to court, the Supreme Court’s ruling would prevail, Katherine Franke, a professor and director for the Center for Gender and Sexuality Law at Columbia Law School, told the NewsHour Weekend.
“State laws cannot be read to conflict with the Tennessee or the U.S. Constitution,” she said. “The state of Tennessee cannot get around the Supreme Court’s 2015 ruling in Obergefell v. Hodges … by defining the terms ‘husband,’ ‘wife,’ or ‘spouse’ in such a way that ignores the Supreme Court’s ruling and the rights contained in the U.S. or Tennessee constitutions.”
Tennessee law already says that “[w]ords importing the masculine gender include the feminine and neuter,” leading courts to interpret gender-specific language in a gender-neutral way, Slatery pointed out in his opinion. In the case of a conflict between existing state law and the proposed legislation, he wrote, the gender-inclusive state law would prevail.
- It could discourage judges from interpreting the law in ways that advance civil rights. “I think [the bill] can’t be used to undue rights that are already secured under the U.S. Constitution, like same-sex marriage, but it could signal to judges that they shouldn’t interpret the law in innovative ways,” Franke said.
Valorie Vojdik, a professor at the University of Tennessee – Knoxville College of Law, called the bill “deeply misguided” and said it could complicate cases related to gender identity and transgender rights. “It raises questions and concerns over how the law could be applied to cut off transgender rights,” she said.
- But it’s not likely it will make a legal difference. “I really don’t think that [HB 1111] itself has that much power or impact,” Carrie Russell, director of undergraduate studies at Vanderbilt University, said.
Others said that the bill’s conflicts with existing state law and the Supreme Court mean that it’s not likely to be effective in curtailing LGBTQ rights. “Senate Bill 1085/House Bill 1111 technically does nothing to change the meaning of terms such as ‘husband,’ ‘wife,’ ‘spouse,’ ‘father,’ ‘mother,’ ‘male,’ or ‘female’ as interpreted by Tennessee courts,” Franke wrote in an email.