Tennessee lawmakers vote to ban medical care for trans minors, near final "drag ban" passage

This is the fourth such medical care ban of 2023. As for the bill criminalizing some performances by "male or female impersonators," a House amendment means the Senate must pass the new version.

Part of Tennessee’s amended S.B. 1

On Thursday, Tennessee became the second state this week, after Mississippi, to pass a ban on transgender minors being able to receive gender-affirming medical care, including hormones or puberty blockers.

The Tennessee House passed S.B. 1 on a 77-16 vote Thursday, following earlier Senate passage on Feb. 13. The bill now goes to Republican Gov. Bill Lee, who has said he is supportive of its aims.

ACLU attorney Chase Strangio noted that a lawsuit will follow if Lee signs the bill.

Chase Strangio @chasestrangio

A reminder that @ACLU, @ACLUtn and @LambdaLegal will sue Tennessee if the Governor signs the ban on gender-affirming care that has now passed both chambers. I am sorry this is happening. We will keep fighting.

The amended text of the bill contains a provision similar to South Dakota’s new law ordering current patients to have any medical treatment — including taking puberty blockers or hormones — stopped within a certain time period.

In the Tennessee bill, medical providers must stop treatment by March 31, 2024.

The bill allows for private lawsuits by minors or parents who do not consent to treatment provided to their children. It also allows the state’s attorney general to bring a lawsuit for up to 20 years after a violation of the ban. The state can recover a $25,000 “civil penalty” for each violation and disgorgement of any profits.

Part of Tennessee’s amended S.B. 1

The similar Mississippi ban (H.B. 1125) that passed earlier this week, meanwhile, has gone to Gov. Tate Reeves, who has said he will sign it.

These two bills would join two laws passed earlier this year, in Utah and South Dakota, that ban gender-affirming medical care for trans minors. Another anti-trans law has also been passed in Utah already this year.

Lawsuits, as Strangio said of the Tennessee bill, will follow these bills’ becoming law, but it’s important to understand the greater role that the law plays in our lives. It sets the norms; it creates a shared understanding of what’s acceptable.

These laws passing, let alone one on top of another, are creating damage that will take much more than lawsuits to undo. Some of the harm, moreover, will be permanent.

Molly Minta @mintamolly

I talked to the owners of the only transgender medical clinic in Mississippi about a bill lawmakers are poised to pass that will ban gender-affirming care for trans kids. They told me it will be "the direct cause of youth suicide."

tinyurl.com‘Kids will kill themselves’: Providers of gender affirming care say anti-trans bill will be a direct cause of suicideOwners of the only clinic in Mississippi that exclusively provides gender-affirming care to trans people worry HB 1125 could be deadly.

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The Tennessee House also amended and then passed a so-called “drag ban” bill, sending it back to the Senate for a vote to approve the bill as amended by the House.

The bill, S.B. 3, would create a new criminal law in Tennessee banning covered drag performances on public property and anywhere where the performance “could be viewed by a person who is not an adult.” The language of the bill — technically banning “male or female impersonators” — also could, depending on the state’s treatment of transgender people’s rights in other respects, be read to ban any covered performances by transgender people.

The first violation of the bill would be a misdemeanor, but subsequent violations would be a felony.

I’ve written previously about this bill at Law Dork, after it passed the Senate.

On Thursday, however, the House took up the bill. In doing so, it first amended two parts of the bill, meaning that the two chambers ended up passing a slightly different bill. Here is the version passed by the Senate, and here is the version passed by the House.

The first change is pretty simple. It adds “topless dancers” back into the group of potentially covered performers. They were included in the bill as introduced, but removed in the Senate amendment. I would imagine that was a drafting error in the Senate amendment, although that’s just a guess.

The second change is a bit more complex. To make sense of it, let’s start with the ban itself, which has not really changed throughout this process. Here it is in the version passed by the House on Thursday:

What is “adult cabaret entertainment”?

Under the House version:

So, that tells us that “adult cabaret entertainment” would require three elements:

1. It would need to include “adult-oriented performances that are harmful to minors, as that term is defined in § 39-17-901.”

2. It would need to “feature topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers.”

3. It would need to include “a single performance or multiple performances by an entertainer.”

As to 1, here’s the Tennessee definition of “harmful to minors,” which is effectively a minors-focused obscenity test:

As to 2, the question of whether trans people are covered as “impersonators” — while incredibly offensive — could be possible, depending on the state’s respect for trans people’s identity and identification in other respects.

As to 3, this is where the second change comes in. In the Senate version, here’s how “entertainer” was defined:

On Thursday, here’s how the House defined “entertainer”:

Subsection A is the same, and, as another section of Tennessee law makes clear, is referencing a defined term that includes places like adult bookstores.

Subsection B is the change. In the Senate’s version, it was a circular definition, asserting that an “entertainer” was anyone who “provides … adult cabaret entertainment.” In the House version, that is replaced with additional limiting language, stating that “entertainers” outside of an adult-oriented establishment are only covered by the ban if the performance includes “actual or simulated specified sexual activities, including removal of articles of clothing or appearing unclothed.”

The “specified sexual activities” are … specific and include activities such as sexual intercourse, aroused genitals, and “erotic” fondling of breasts. The “including removal of articles of clothing or appearing unclothed” language is vague (and confusing in light of the specificity of the language it is modifying), however, which does raise some concerns.

With that caveat, though, the House change to the definition of “entertainer,” by my read, does provide an additional, substantive limit on what is covered by the ban.

Regardless of that limit, S.B. 3 remains a bill that would criminalize covered drag and possibly trans performances on all public property and wherever the performance could be viewed by a minor.

This would ban covered drag shows on public university campuses, for example. It also, as discussed in public debate, could criminalize covered drag performances in pride parades given that minors could theoretically see performers on parade floats.

Any such law also could be used more aggressively to try to shut down and prosecute performances far outside of those that I believe would be covered by the language of the bill. Even further, the law’s existence and the possibility of such overreach almost certainly would have a chilling effect on performers and those who would host them.

Constitutional challenges — strong ones — will almost certainly follow should this bill become law. Even if they succeed, however, the time and money spent fighting them, not to mention the law’s ripple effects, would be significant.