Tennessee has quietly been establishing some of the most anti-LGBT laws in the country, and this year, it’s proposed a new invitation for businesses to discriminate.
This week, the Tennessee Senate voted 25–5 to pass SB 127, which prohibits the government from taking any “discriminatory action” against a business entity based on its internal policies, including personnel and employee benefit policies, so long as they are in compliance with state law. This means, for example, that no city could refuse to grant a contract to a company on the basis that it refuses to hire LGBT people.
Discrimination against LGBT people is already legal in Tennessee. Back in 2011, state lawmakers passed the first of what have come to be known as “preemption laws.” The so-called “Equal Access to Intrastate Commerce Act” banned municipalities from extending nondiscrimination protections beyond what is offered at the state level. That means that, so long as Tennessee offers no protections on the basis of sexual orientation and gender identity, neither can cities like Nashville.
Incidentally, that 2011 preemption bill was also the precursor to the wave of anti-transgender legislation now being advanced across the country. In addition to preempting local protections, the legislation defined the term “sex” on the basis of what appears on a person’s birth certificate. This is the exactly how North Carolina’s HB2 imposes discrimination on its trans community, but that law simply fleshes out that provision to specify that it impacts what bathrooms and facilities transgender people can use.
Tennessee is one of the only states that has absolutely no mechanism for residents to amend the sex marker on their birth certificates, which means that trans Tennesseans are banned from ever being legally recognized.
In lieu of extending city-wide protections, municipalities could have sought out other ways to protect the LGBT community, such as being conscientious about which businesses they contract with. But SB 127 would further ensure that discrimination is the law of the land. Indeed, it’s a further invitation for businesses to enact such policies.
SB 127’s sponsor, Sen. Mark Green (R), is using the same language from the 2011 legislation to justify his new discriminatory bill. He told the Tennessean that the bill is intended to “make (state law) consistent across the state.”
The bill also bears a strong resemblance to the First Amendment Defense Act (FADA), which is expected to be reintroduced soon in Congress. In its past versions, FADA has spelled out specific religious beliefs — such as opposition to same-sex marriage or premarital sex — as worthy of protection from any government bias. President Trump has promised to sign FADA into law if it arrives at his desk.
Advocates of these bills want to incentivize businesses to discriminate against LGBT people with the promise they’ll still be eligible for contracts with the government when they do.