The state attorney general is seeking $700,000 to hire new attorneys to fight for new state laws, and the governor is requesting $7 million more for court costs, raising questions about whether the state is spending too much money on litigation it could avoid.

Despite those planned expenses, the state could find itself in yet another legal battle if the Legislature passes bills this session aimed at transgender athletes and transgender restroom use. A bill prohibiting transgender students from playing athletics opposite of their sex at birth passed a House K-12 Education Subcommittee this week.

Tennessee Attorney General Herbert Slatery. (Photo: tn.gov)
Tennessee Attorney General Herbert Slatery. (Photo: tn.gov)

Republicans, including Gov. Bill Lee, agree with the legislation, saying they believe allowing transgender girls to play girls’ sports will destroy competitive events and hurt girls’ ability to earn college scholarships. They espouse those views even though they can cite no cases in which a transgender girl is playing in girls’ games.

Yet even Republicans are split on whether to pursue this legislation because of the potential expense. Lt. Gov. Randy McNally said Thursday he wants the Legislature to focus on “substantive” issues such as the budget and COVID pandemic and let local school systems handle transgender matters. It wouldn’t be the first time McNally’s tamped down such legislation.

An executive order by Democratic President Joe Biden requires all federal agencies to determine whether any gender discrimination is taking place, McNally pointed out, but he expressed reservations about passing the anti-transgender bills.

“Certainly we need to move with caution because whatever we do will probably be reviewed by the federal government and they could cut funding to the state. It’s an issue we need to move very carefully with,” said McNally, an Oak Ridge Republican.

In contrast, House Speaker Cameron Sexton said he believes the legislation is worth pushing – even if it turns into a costly legal case – because Tennessee voters don’t believe males should be playing female sports. He predicted the measure will gain House approval.

“Sometimes you pass bills that you feel need to be passed to protect the integrity of certain things inside the state of Tennessee, and this we’re protecting the integrity of women’s athletics, of women versus women,” Sexton said. “So if someone wants to sue, the ACLU, so be it. But you can’t allow the ACLU to threaten lawsuits or anybody else to stymie what you think you need to do to protect women’s athletics.”

Both Gov. Bill Lee and Speaker of the House Cameron Sexton support a bill that would ban transgender students from playing athletics opposite of their sex at birth, even though they cite no cases in which transgender girls played girls sports. 

Rep. Scott Cepicky, a Maury County Republican, acknowledged in the House K-12 Education Subcommittee the legislation is likely to be challenged in court but introduced it anyway. The measure passed despite concerns raised by one mother of a transgender child who called it discriminatory.

State Sen. Mike Bell, R-Cleveland (Photo: Tennessee General Assembly)
State Sen. Mike Bell, R-Riceville (Photo: Tennessee General Assembly)

Sen. Mike Bell, chairman of the Senate Judiciary Committee, considers the legal expenses to be a wise expenditure. He is sponsoring legislation to govern use of restrooms and locker rooms in schools to keep students from unclothing in front of transgender students. He believes it has strong support from constituents.

Bell points out the “fetal heartbeat” abortion bill passed the Legislature overwhelmingly while the ESA bill narrowly made its way through the House but got through the Senate with ease.

“They reflect the views of the people of the state of Tennessee, and I think it’s money well spent on behalf of the people of the state of Tennessee,” Bell said. 

Setting the table

Gov. Lee put $5 million in his proposed $41.8 billion spending plan for fiscal 2022 to cover expenses for outside counsel and court settlements and is seeking $2 million more for this year’s budget. Simultaneously, AG Herbert Slatery is requesting $700,000 to add five lawyers to his staff to defend a new state law restricting abortion and the governor’s education savings account program, which is to go before the Tennessee Supreme Court after being struck down in two lower courts.

“We’ve seen a significant increase in cases, some as a result of challenges to legislative actions,” Slatery recently told the House Finance, Ways and Means Committee.

In fact, the Attorney General’s Office has three cases dealing with abortion rights stemming from the bill passed in 2020, in addition to the ESA lawsuit, according to Slatery. He also mentioned legal questions raised about the governor’s emergency powers during the COVID-19 pandemic, and the transgender bills are expected to be challenged.

  The acts of this legislature have involved you in litigation. I think everyone up here understands that cause and effect.   – Rep. Patsy Hazlewood, R-Signal Mountain, House Finance Committee Chair, to Tennessee Attorney General Herbert Slatery

The state spent considerable energy, as well, in 2020 trying to fend off efforts to increase absentee ballot voting during the COVID-19 pandemic.

Slatery, who also joined Tennessee with attorneys general in backing a Texas challenge of Biden’s election, received accolades for his work from the House panel. The attorney general told lawmakers he decided to get involved only after studying the matter and deciding it was not “overly partisan.”

“The acts of this Legislature have involved you in litigation. I think everyone up here understands that cause and effect,” said House Finance Committee Chairman Patsy Hazlewood, a Signal Mountain Republican during the committee’s January budget hearings.

In addition, Slatery is requesting $2.15 million to increase salaries for the attorneys working in his office. The addition of five attorneys would give him 353 positions.

But not all lawmakers are enthused with the Legislature’s willingness to pass bills and worry about legal challenges later.

During a budget presentation this week, state Rep. Bob Freeman questioned the Lee administration’s $7 million for outside litigators and legal settlements. Budget officials responded that the state has a similar amount in its current budget.

Freeman, a Nashville Democrat, was troubled by the spending nevertheless. He contends the potential for legal action on legislation should be part of a fiscal review.

“I think the answer is clear. I mean $7 million is too much money for laws, bills that we know are not legal when they pass, and they end up getting us in trouble. We need to start passing bills and not lawsuits,” Freeman told the Tennessee Lookout.

Rep. Brandon Ogles, R-Brentwood (Photo: Tennessee General Assembly)
Rep. Brandon Ogles, R-Brentwood, (Photo: Tennessee General Assembly) said he wants a better explanation of how the additional $7 million Lee is requesting for legal bills will be spent.

Freeman and state Rep. Brandon Ogles both want a better explanation of how the money is being spent.

“You don’t know what it’s for. You’d like to see the details,” said Ogles, a Franklin Republican who also serves on the House Finance Committee.

Gov. Lee, meanwhile, leaves no doubt where he stands on legal expenses for his main legislative moves, saying his administration will spend “whatever is appropriate” on both cases. 

“We will defend the rights of the unborn in this state, and I believe the attorney general will and should aggressively defend the rights of the unborn children in this state, and I will encourage him to do so,” Lee said this week.

With an eye toward the Supreme Court’s decision to take up the ESA lawsuit filed against the state, Lee pointed out the program will give children in “low-income districts” an opportunity to earn a “higher-quality education than they’re currently receiving,” and he is encouraging the attorney general to take it on.

The ESA program would provide $7,300 in state funds for qualifying students in Shelby County Schools and Metro Nashville Schools to use for private school tuition and other costs. It was found unconstitutional because it violates the state’s Home Rule Provision, requiring legislation targeting only one or two counties to gain approval through a local referendum or local legislative body.

A new legal outlook

Transgender bills in the Legislature are likely to put the state in another legal quagmire, even when it is already overspending on legal action, Senate Minority Leader Jeff Yarbro said Thursday.

Sen. Jeff Yarbro, D-Nashville (Photo: Tennessee General Assembly)
Sen. Jeff Yarbro, D-Nashville (Photo: Tennessee General Assembly)

  The attorney general has made a conscious decision to not provide those opinions, to not provide this Legislature with the guidance it would need to avoid the passage of unconstitutional legislation.   – Sen. Jeff Yarbro, D-Nashville

For Yarbro, however, the root of the problem lies with the attorney general, whose legal opinions on legislation dropped from more than 80 in his first year, 2015, to just 20 in 2019 and 17 in 2020, according to reports.

With those legal opinions, the attorney general determines whether legislation could meet constitutional muster and, thus, whether he would defend it in court, Yarbro said.

“The attorney general has made a conscious decision to not provide those opinions, to not provide this Legislature with the guidance it would need to avoid the passage of unconstitutional legislation, and it’s pretty ridiculous to ask for more money to do work that you could have avoided if you’d done your job better in the first place,” Yarbro said.

Part of the problem stems from lawmakers who say the attorney general’s legal reviews of legislation are “just his opinion,” instead of recognizing them as a legal basis for considering bills, said Sen. Raumesh Akbari, chair of the Senate Democratic Caucus.

“We’re focused on all these ideological things that we know is unconstitutional instead of solving the real problems of our state,” said Akbari, a Memphis Democrat. “We’re spending money on lawsuits and attorneys instead of spending money on the things that are going to move people forward in this state.”