                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                   May 21, 2014 Session

                       LISA HOWE, ET AL. v. BILL HASLAM

             Direct Appeal from the Chancery Court for Davidson County
                      No. 11-778-II    Carol L. McCoy, Judge


               No. M2013-01790-COA-R3-CV - Filed November 4, 2014


Plaintiffs allege that a 2011 act of the General Assembly adding a definition of “sex” to the
Tennessee Human Rights Act and creating the Equal Access to Intrastate Commerce Act,
now codified at Tennessee Code Annotated § 7-51-1801(1) & (2), violates the Equal
Protection guarantees of the United States and Tennessee Constitutions. The trial court
dismissed the action for lack of standing. We dismiss the claims of Plaintiffs Wesley Roberts
and the Gay/Straight Alliance of Hume-Fogg Academic Magnet High School as moot where
the Defendant Governor concedes that the Equal Access to Intrastate Commerce Act does
not apply to Local Education Agencies or Tennessee schools. We affirm dismissal of the
remaining Plaintiffs for lack of standing where they have failed to allege a discrete, palpable,
cognizable injury in fact.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
                                  and Remanded

D AVID R. F ARMER, J., delivered the opinion of the Court. J. S TEVEN S TAFFORD, J., filed a
concurring opinion. W. N EAL M CB RAYER, J., filed a concurring in part opinion.

Abby R. Rubenfeld, Nashville, Tennessee; Shannon P. Minter, Christopher F. Stoll and Amy
Whelan, San Francisco, California; and James E. Hough, Leah Ramos and Katie L. Viggiani,
New York, New York, for the appellants, Lisa Howe, Erica Gilmore, Marisa Richmond,
Wesley Roberts, Gay/Straight Alliance of Hume-Fogg Academic Magnet High School, The
Tennessee Equality Project, and The Tennessee Transgender Political Coalition.

Robert E. Cooper, Jr., Attorney General and Reporter, Joseph F. Whalen, Action Solicitor
General and William J. Marett, Jr., Senior Counsel, for the appellee, Bill Haslam, as
Governor of the State of Tennessee, in his official capacity.
                                               OPINION

       This appeal arises from a June 2011 action challenging the constitutionality of chapter
278 of the 2011 Public Acts, House Bill 600/Senate Bill 632 (hereinafter “HB600”), on the
ground that it violates the equal protection guarantees of the Tennessee and United States
Constitutions. In April 2011, the Council of the Metropolitan Government of Nashville and
Davidson County (“Metro Council”) amended chapter 4.28 of the Metropolitan Code in
response, according to the preamble of the amendment, to “recent events concerning the
employment practices of a particular Metropolitan Government Contractor.” The amendment
added “gender identity” and “sexual orientation” to the classes of persons protected by the
equal opportunity provisions applicable to government contractors.1 HB600 was introduced

       1
         As amended by Ordinance No. BL2011-838, which was introduced in January 2011 and approved
on April 8, 2011, Chapter 4.28.010 of the Metropolitan Code of the Metropolitan Government of Nashville
and Davidson County provided, in pertinent part:

       A. It is declared to be the policy of the metropolitan government that any person contracting
       for building and construction projects or furnishing supplies or services to the metropolitan
       government, and to which any funds of the metropolitan government are expended, shall
       establish equal employment opportunities for all individuals so that no individual shall be
       excluded from employment by such person because of race, creed, color, national origin,
       age, sex, gender identity, or sexual orientation, and to ensure compliance with all applicable
       laws concerning the employment of individuals with disabilities.
       B. Any person so contracting for building and construction projects, or furnishing supplies
       or services to the metropolitan government, wherein any funds of the metropolitan
       government may be appropriated or expended to such person, shall not subscribe to any
       personnel policy which permits or allows the promotion, demotion, employment, dismissal
       or laying off of any individual due to his race, creed, color, national origin, age sex, gender
       identity, or sexual orientation, or which is in violation of applicable laws concerning the
       employment of individuals with disabilities.
       C. It is further declared to be the policy of the metropolitan government that any person
       entering into any agreement for the use of any metropolitan government property or facility
       with a lease term of greater than six months shall establish equal employment opportunities
       for all individuals so that no individual shall be excluded from employment, discharged,
       demoted, or refused a promotion by such person because of race, creed, color, national
       origin, age, sex, gender identity, or sexual orientation, and to ensure compliance with all
       applicable laws concerning the employment of individuals with disabilities.
       D. The foregoing provisions of this section prohibiting employment discrimination on the
       basis of sexual orientation or gender identity are not intended to interfere with the free
       exercise of religion or the freedom of expressive association guaranteed by the U.S.
       Constitution. Religious entities, organizations, or institutions shall be expressly exempt from
       the provisions of this section prohibiting discrimination on the basis of sexual orientation
       or gender identity if such actions are in furtherance of the organization’s religious mission
       or beliefs. Further, the provisions of this section prohibiting discrimination on the basis of
                                                                                                 (continued...)

                                                     -2-
in February 2011 and approved in May 2011. Entitled “the Equal Access to Intrastate
Commerce Act,” HB600 amended the Tennessee Human Rights Act (“THRA”) to add that
“‘[s]ex’ means and refers only to the designation of an individual person as male or female
as indicated on the individual’s birth certificate.” Now codified at Tennessee Code
Annotated § 4-21-102(20) (2011), the amendment to the THRA became effective May 23,
2011. HB600 also added part 18 to chapter 51 (entitled “Local Government Functions”) of
Title 7 (entitled “Consolidated Governments and Local Governmental Functions and
Entities”). Effective May 23, 2011, current section 7-51-1801 et. seq. is entitled the “Equal
Access to Intrastate Commerce Act.” Section 7-51-1801 defines “county” as including “any
county having a metropolitan form of government” and defines “local government” to mean
“a municipality or county.” Tenn. Code Ann. § 7-51-1801(1) & (2)(2011). That part of
section 7-51-1802 created by HB600 provides:

              (a)(1) No local government shall by ordinance, resolution, or any other
       means impose on or make applicable to any person an anti-discrimination
       practice, standard, definition, or provision that shall deviate from, modify,
       supplement, add to, change, or vary in any manner from:
                      (A) The definition of “discriminatory practices” in §
              4-21-102 or deviate from, modify, supplement, add to, change,
              or vary any term used in such definition and also as defined in
              such section; or
                      (B) Other types of discrimination recognized by state law
              but only to the extent recognized by the state.
              (2) Any such practice, standard, definition, or provision imposed or
       made applicable to any person by a local government prior to May 23, 2011,
       shall be null and void.
              (b) Subsection (a) shall not apply with respect to employees of a local
       government.




Tenn. Code Ann. § 7-51-1802(2011).




       1
        (...continued)
       sexual orientation or gender identity shall not apply to a group or organization if the
       application of such provision would significantly burden the expression of the group or
       organization.

available at http://www.nashville.gov/mc/ordinances/term_2007_2011/bl2011_838.htm

                                                 -3-
        On June 13, 2011, Lisa Howe (Ms. Howe), Erik Cole (Mr. Cole), Erica Gilmore (Ms.
Gilmore), Mike Jameson (Mr. Jameson), Shirit Pankowsky (Ms. Pankowsky), Marisa
Richmond, Ph. D. (Dr. Richmond), The Tennessee Equality Project (“the TEP”) and The
Tennessee Transgender Political Coalition (“the TTPC”; collectively, “Plaintiffs”) filed a
complaint for declaratory and injunctive relief in the Chancery Court for Davidson County.
In their complaint, Plaintiffs alleged that HB600 nullified existing local ordinances and
policies prohibiting discrimination based on sexual orientation, gender identity, or any basis
or disability not specified by state law, and that it prohibited the future enactment of local
laws or policies. They alleged that HB600 was enacted, in part, in response to a 2011
amendment to Nashville ordinances that added prohibitions against discrimination on the
basis of sexual orientation or gender identity to the city’s anti-discrimination ordinances
applicable to contractors doing business with the Metropolitan Government. They further
alleged that the stated purpose of HB600, to streamline business regulation, was a “mere
pretext” and that the “timing, context, history, and other statements by the bill’s supporters
and proponents overwhelmingly demonstrate[d] that . . . the actual purpose was to prevent
the enactment of local laws protecting gay or transgender people.” Plaintiffs asserted that
HB600 stripped gay and transgender students of protection under anti-bullying school
policies; that it removed existing protections afforded to gay and transgender persons; that
it “deprive[d] gay and transgender Tennesseans of the right they previously [] enjoyed to seek
redress from their local governments from even the most blatant forms of discrimination
based on sexual orientation and gender identity”; and that it imposes a “special disability”
on gay and transgender persons “by hampering their ability to seek aid from their local
governments.” Plaintiffs asserted HB600 “render[ed] futile” efforts to advocate for gay and
transgender students or for students having a disability not specifically protected under state
law. Plaintiffs submitted that HB600 “imposes a different and more burdensome political
process on gay and transgender people than on non-gay and non-transgender people who
have state protection against identity-based discrimination.” They sought a declaration that
HB600 violated federal and Tennessee equal protection guarantees, a permanent injunction
against enforcement, and a ruling that any local or municipal ordinance, regulation or code
struck down by HB600 remain in effect. Plaintiffs also sought costs and reasonable
attorneys’ fees.

        Defendant Governor Bill Haslam (hereinafter, “the Governor”) answered in July 2011
and generally denied Plaintiffs’ allegations of unconstitutionality or improper motive or
intent, denied that HB600 applied to Local Education Agencies or that it affected school anti-
discrimination or anti-bullying policies, and denied that it deprived any person of any
existing legal protection against discrimination. The Governor asserted that Plaintiffs lacked
standing to prosecute the claims asserted; that they failed to set forth an actual case or
controversy; that the claims asserted were moot or unripe; that Plaintiffs had failed to allege
a distinct or palpable injury; that the Governor was not a proper party Defendant; and that

                                              -4-
Plaintiffs had failed to state a claim. Following discovery and disputes regarding subpoenas
issued to non-parties and motions to quash those subpoenas, in October 2011 Plaintiffs
moved the trial court to enforce the subpoenas. By order entered January 25, 2012, the trial
court determined that the action “constitute[d] a request for an advisory opinion[,]” that it
was not ripe for review, and that “[n]o party ha[d] claimed an injury beyond potential
discrimination, and potential loss of political and litigious opportunities.” The trial court
concluded that no “justiciable injuries” had been alleged.

        In March 2012, Plaintiffs filed a motion for relief from the trial court’s January order.2
On June 14, 2012, Plaintiffs moved to amend their complaint to add additional plaintiffs and
remove others. Plaintiffs moved to remove Mr. Cole and Mr. Jameson as Plaintiffs where
their standing was predicated on their status as elected members of the Metro Council and
where they no longer served on the Council. They also moved to remove Ms. Pankowsky,
who had successfully graduated from high school and was no longer a student in the
Nashville and Davidson County Schools. Plaintiffs moved to add the Gay/Straight Alliance
of Hume-Fogg Academic Magnet High School (“GSA-HFA”) as an organizational Plaintiff.
Following a hearing on June 15, 2012, the trial court denied Plaintiffs’ motion for relief from
its January judgment by order entered June 25. In its order, the trial court found that none
of the Plaintiffs had “alleged an injury-in-fact cognizable by law.” The trial court also
determined that none of the Plaintiffs had “stated a claim that is ripe for review[,]” and that
they had “fail[ed] to state valid claims” under the Equal Protection Clause of the 14 th
Amendment to the United States Constitution.

       Plaintiffs filed a notice of appeal to this Court. Following oral argument in June 2013,
we determined that the trial court’s June 2012 judgment was not final where Plaintiffs’
motion to amend their complaint had not been adjudicated. Howe v. Haslam, No.
M2012–01444–COA–R3–CV, 2013 WL 3326647 (Tenn. Ct. App. June 26, 2013) (“Howe
I”). We accordingly dismissed the appeal and remanded the matter to the trial court for
further proceedings. Id. at *7.

       On July 15, 2013, Plaintiffs filed an amended motion to amend their complaint to
remove Mr. Cole, Mr. Jameson and Ms. Pankowsky as Plaintiffs, and to add GSA-HFA as
an organizational Plaintiff. Plaintiffs also moved to add Wesley Roberts (Mr. Roberts), a
teacher at Hume-Fogg Academic Magnet High School, as a Plaintiff. The Governor filed
a response in opposition to Plaintiffs’ motion to amend on July 15 and Plaintiffs filed a
proposed amended complaint on July 23, 2013. Following a hearing on July 19, by order


        2
        In its January 2012 order, the trial court granted the parties 30 days in which to seek relief. On
February 10, 2012, it entered an agreed order granting Plaintiffs an additional 30 days within which to file
a motion for relief.

                                                    -5-
entered on July 30, 2013, the trial court granted Plaintiffs’ motion to amend and ordered their
proposed amended complaint deemed filed as of the date of the order. Following review of
Plaintiffs’ amended complaint, the trial court determined that Plaintiffs had “fail[ed] to allege
any cognizable injury to any of the Plaintiffs.” The trial court also determined that Plaintiffs’
claims were not ripe for review. The trial court dismissed all claims on the basis of standing
and ripeness, and ordered that any matters not specifically addressed were denied and
dismissed. Ms. Howe, Ms. Gilmore, Ms. Richmond, Mr. Roberts, the GSA-HFA, the TEP,
and the TTPC (hereinafter, collectively, “Appellants”) filed a timely notice of appeal and oral
argument was heard by the Western Section of this Court sitting in Nashville in May 2014.

                                       Issues Presented

       The following issues, as stated by Appellants, are presented for our review:


       1.     Whether the trial court erred when it held that Plaintiffs lacked standing
              to bring this equal protection challenge to Tennessee’s Equal Access to
              Intrastate Commerce Act (“HB600”) based on its conclusion that the
              following injuries to Plaintiffs, specifically alleged in the First
              Amended Complaint, were insufficient to create a justiciable
              controversy: (a) HB600 unconstitutionally distorts governmental
              processes in such a way as to place special burdens on the ability of a
              minority group - specifically, lesbian, gay, bisexual, and transgender
              (LGBT) persons - to achieve beneficial local legislation protecting that
              group against discrimination; (b) HB600 stripped the LGBT Plaintiffs
              of antidiscrimination protections previously available to them under
              state and/or local law or local school policies; (c) HB600 exposes the
              LGBT Plaintiffs to an immediate and substantial increased risk of
              discrimination; (d) HB600 injures the transgender Plaintiffs by
              unconstitutionally depriving them of protections against sex
              discrimination that are available to all other citizens under the
              Tennessee Human Rights Act; and (e) HB600 impermissibly impedes
              the effectiveness of Plaintiff Gilmore’s legislative powers as a member
              of the Nashville Metropolitan Council.

       2.     Whether the trial court erred when it held that Plaintiffs’ claims are not
              ripe for review despite Plaintiffs’ specific allegations of present,
              ongoing injury.




                                               -6-
        The question presented by this appeal, as we perceive and re-state it, is whether the
trial court erred by determining that Appellants failed to allege any definite, palpable,
cognizable injury-in-fact sufficient to confer standing.


                                   Procedural Background

        The trial court determined that no justiciable case or controversy existed in this action
where Appellants failed to assert any “cognizable injury,” and accordingly lacked standing,
and where Appellants’ claims were not ripe for review. The record transmitted to us on
appeal does not contain transcripts of the hearings held in the trial court. We also observe
that, although standing was among the defenses asserted by the Governor in his answer, the
Governor filed neither a motion to dismiss nor a motion for summary judgment in the trial
court. Rather, in January 2012, the trial court appears to have determined that Appellants
lacked standing and that their claims were not ripe for review following an October 2011
hearing on various discovery motions. Issues of standing and ripeness were first briefed by
the parties in March 2012, when the original Plaintiffs filed their motion for relief from the
trial court’s January 2012 order. The trial court made no findings with respect to either the
individual or organizational claimants but, as we observed in Howe I, essentially resolved
this matter for failure to state a claim. Howe I, 2013 WL 3326647, at *1 n.1. Accordingly,
the facts asserted in Appellants’ complaint must be considered true for the purposes of this
appeal. Id. (citing see Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422,
426 (Tenn. 2011)).

       For the purposes of our review of a trial court’s dismissal for failure to state a claim,
we must determine whether, construing the complaint liberally, the plaintiff has alleged facts
warranting relief. Highwood Properties, Inc. v. City of Memphis, 297 S.W.3d 695, 700
(Tenn. 2009) (citations omitted). We must determine whether, considering all “relevant and
material allegations in the complaint” to be true, the allegations “constitute a cause of
action.” Id. We review the trial court’s decision to dismiss a matter for failure to state a
claim de novo with no presumption of correctness. Id.

                                   Justiciability Doctrines

        The doctrines of ripeness and standing in Tennessee jurisprudence arise from the
separation of powers of the branches of government imposed by Article II, Sections 1 and
2 of the Tennessee Constitution. Norma Faye Pyles Lynch Family Purpose LLC v. Putnam
County, 301 S.W.3d 196, 202 (Tenn. 2009). Although the Tennessee Constitution does not
expressly delineate the powers of the executive, legislative, or judicial branches of
government or, unlike Article III of the United States Constitution, confine the jurisdiction

                                               -7-
of the courts to “cases” and “controversies,” Tennessee courts “have, since the earliest days
of statehood, recognized and followed self-imposed rules to promote judicial restraint and
to provide criteria for determining whether the courts should hear and decide a particular
case.” Id. In order to adhere to the long-standing judicial philosophy that “‘the province of
a court is to decide, not advise, and to settle rights, not to give abstract opinions[,]’” Id. at
203 (quoting State v. Wilson, 70 Tenn. 204, 210 (1879); see also Gilreath v. Gilliland, 95
Tenn. 383, 385–86, 32 S.W. 250, 251 (1895); Prichitt v. Kirkman, 2 Tenn. Ch. 390, 393
(1875)), the courts have employed the doctrines of standing, ripeness, mootness, political
question, exhaustion of administrative remedies, and the prohibition against advisory
opinions. Id. at 203. These justiciability doctrines are founded in our understanding of the
role of the judiciary and our respect for the separation of powers provisions of the Tennessee
Constitution. Id. at 202-03. It is well settled that the role of the courts is to decide and settle
“legal controversies,” not to advise or opine on abstract, theoretical questions. Id. at 203.
A legal controversy exists “when the disputed issue is real and existing.” Id. Constitutional
differences notwithstanding, the Tennessee justiciability doctrines “mirror the justiciability
doctrines employed by the United States Supreme Court and the federal courts” acting under
the limitations imposed by Article III of the United States Constitution. Id. at 203. Thus,
federal jurisprudence is instructive to our consideration of justiciability questions. Id. n.3.

        Under the ripeness doctrine, the court must determine “‘whether the harm asserted has
matured sufficiently to warrant judicial intervention[.]’” American Civil Liberties Union of
Tennessee v. Darnell, 195 S.W.3d 612, 620 n.7 (Tenn. 2006) (quoting Warth v. Seldin, 422
U.S. 490, 499 n.10, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). “The central concern of the
ripeness doctrine is whether the case involves uncertain or contingent future events that may
or may not occur as anticipated or, indeed, may not occur at all.” B & B Enterprises of
Wilson County, LLC v. City of Lebanon, 318 S.W.3d 839, 848 (Tenn. 2010) (citation
omitted). The determination of whether a dispute is ripe for review requires a two-part
inquiry. First, the court must determine whether the issues presented in the action are
appropriate for judicial resolution. Id. Second, the court must determine whether its refusal
to act will result in hardship to the parties. Id. The court will decline to act absent a need to
act or if dismissal of the claim will not prevent the parties from asserting it at a more
appropriate juncture. Id. (citations omitted). In a declaratory judgment action, a present
injury is not required but an actual “case or controversy” must nevertheless exist. Colonial
Pipeline Co. v. Morgan, 263 S.W.3d 827, 837–38 (Tenn. 2008). A declaratory judgment
action may be dismissed for lack of ripeness. Id.

       Standing is composed of two categories: constitutional standing and non-
constitutional standing. City of Memphis v. Hargett, 414 S.W.3d 88, 98 (Tenn. 2013). The
focus of non-constitutional standing is on judicial restraint, including consideration of
whether an action raises questions more properly considered by another branch of

                                                -8-
government. Id. Constitutional standing, which is the issue presented by the current matter,
“is one of the ‘irreducible . . . minimum’ requirements that a party must meet in order to
present a justiciable controversy.” Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,
560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); citing see also City of Chattanooga v. Davis,
54 S.W.3d 248, 280 (Tenn. 2001); Norma Faye Pyles Lynch Family Purpose LLC, 301
S.W.3d 196, 202–03 (Tenn. 2009)(noting that Tennessee courts’ adoption of the various
justiciability doctrines, including standing, has a basis in the separation of powers required
under Article II, Sections 1 and 2 of the Tennessee Constitution)).

        The courts utilize the doctrine of standing to determine whether a plaintiff is
“‘properly situated to prosecute the action.’” Petty v. Daimler/Chrysler Corp., 91 S.W.3d
765, 767 (Tenn. Ct. App. 2002) (quoting Knierim v. Leatherwood, 542 S.W.2d 806, 808
(Tenn. 1976)). A standing inquiry focuses on the parties, not the merits of the case. Id. at
768 (citation omitted). The doctrine “precludes courts from adjudicating ‘an action at the
instance of one whose rights have not been invaded or infringed.’” Darnell, 195 S.W.3d at
619-20 (quoting Mayhew v. Wilder, 46 S.W.3d 760, 767 (Tenn. Ct. App. 2001), perm. app.
denied (Tenn. April 30, 2001)). “[T]he irreducible constitutional minimum of standing”
includes three elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130,
2136 (1992). First, the plaintiff must demonstrate an injury in fact, which is “an invasion of
a legally protected interest which is (a) concrete and particularized . . . and (b) actual or
imminent, not conjectural or hypothetical.” Id. (internal citations omitted). The injury must
be distinct and palpable and may not be “predicated upon an injury to an interest that the
plaintiff shares in common with all other citizens.” American Civil Liberties Union of
Tennessee v. Darnell, 195 S.W.3d 612, 620 (Tenn. 2006)(citations omitted). Second, a
causal connection must exist between that injury and the conduct that is complained of. Id.
While the causation element is not onerous, it does require a showing that the injury to a
plaintiff is “fairly traceable” to the conduct of the adverse party. Id. (quoting
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342, 126 S.Ct. 1854, 164 L.Ed.2d 589
(2006)). Third, the plaintiff must show that a favorable decision is capable of redressing the
injury alleged. Id. The plaintiff must establish these elements “‘by the same degree of
evidence’ as other matters on which the plaintiff bears the burden of proof.” Id. (quoting
Petty v. Daimler/Chrysler Corp., 91 S.W.3d 765, 767 (Tenn. Ct. App.2002), perm. app.
denied (Tenn. Sept. 9, 2002)). Standing is indispensable to a plaintiff’s claim.
Daimler/Chrysler Corp., 91 S.W.3d at 767. Because standing generally depends on the
nature of the asserted claims, the determination of whether a plaintiff has standing requires
the court to carefully examine the allegations asserted in the complaint to determine whether
a particular plaintiff is entitled to an adjudication of those claims. Id. at 768. (citations
omitted).

       To demonstrate standing as an organizational plaintiff, the organizational plaintiff

                                             -9-
must establish that: “(1) its members would otherwise have standing to sue in their own
right; (2) the interests it seeks to protect are germane to the organization’s purpose; and (3)
neither the claim asserted, nor the relief requested, requires the participation of individual
members in the lawsuit.” Darnell, 195 S.W.3d at 626 (citations omitted).

        We additionally note that Tennessee has not adopted a “public rights” exception to the
requirement of standing. City of Chattanooga v. Davis, 54 S.W.3d 248, 280-81 (Tenn.
2001). In Davis, the supreme court observed that some jurisdictions have abrogated the
injury requirement of standing when the action involves a constitutional question of “great
public importance.” Id. at 280 (citing see State ex rel. Ohio Academy of Trial Lawyers v.
Sheward, 86 Ohio St.3d 451, 715 N.E.2d 1062, 1104 (1999); see also State ex rel. Sego v.
Kirkpatrick, 86 N.M. 359, 524 P.2d 975, 979 (1974); Jenkins v. State 585 P.2d 442, 443
(Utah 1978)). Noting that “adherence to the particularized injury requirement of the standing
doctrine” had been criticized “as being inadequate in a time when the courts are believed to
have ‘a special function with regard to the Constitution as its ‘final authoritative interpreter,’”
Id. (quoting Constitutional Adjudication, The Who and the When, 82 Yale L.J. 1363, 1366
(1973)), the supreme court nevertheless has not abrogated the requirement in Tennessee state
actions regardless of whether a challenged action is most likely unconstitutional. Id.

        As noted above, although the trial court dismissed this action based on the lack of
standing and ripeness, its judgment was predicated on its conclusion that Appellants had
failed to assert any “cognizable injury” in their complaint. Our supreme court has observed
that the question of standing “‘bears close affinity to questions of ripeness.’” Darnell, 195
S.W.3d at 620 n.7 (quoting Warth v. Seldin, 422 U.S. 490, 499 n.10, 95 S.Ct. 2197 (1975)).
In some cases, moreover, the question of standing and ripeness “boil down to the same
question.” Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334, 2014 WL 2675871, at *5 n.5
(U.S. 2014) (citation omitted). Such is the case here.

       The trial court’s judgment in this case is predicated entirely on its determination that
Appellants failed to allege a palpable, concrete, cognizable injury as opposed to one that is
hypothetical or conjectural or that may arise at some future date. Accordingly, the issue
presented by this case, as we perceive it, is whether Appellants have asserted an actual,
concrete injury as opposed to one that is conjectural or hypothetical. We therefore will
address the trial court’s judgment within the context of standing. The question of whether
a party has standing to assert a claim is a question of law. In re Estate of Smallman, 398
S.W.3d 134, 148 (Tenn. 2013). Accordingly, our review is de novo with no presumption of
correctness for the determination of the trial court. Id.




                                               -10-
                                            The Appellants

       Ms. Howe is a lesbian who advocates for lesbian, gay, bi-sexual, and transgender
(“LGBT”) rights.3 As noted above, she was a soccer coach at Belmont University and
Appellants allege that her departure from Belmont following her announcement that she and
her same-sex partner were having a baby precipitated the 2011 amendment to the Metro
Code. Ms. Howe asserts that HB600 removes protections formerly provided by the Metro
Code and exposes her to a heightened risk of discrimination based on her sexual orientation.
She further submits that it renders her ability to advocate on behalf of gay and transgender
persons “futile.” Ms. Howe also submits that HB600 prevents her from obtaining local
government assistance to redress discrimination against her.

        Dr. Richmond is a transgender woman who lives in Nashville and, as president of the
TTPC, advocates for gay and transgender equality at the state and local levels. She submits
that the Act strips her of protections provided by the Metro Code; strips her of protections
under state law by limiting discrimination based on sex to discrimination based on sex as
designated on a person’s birth certificate; prevents her from obtaining the assistance of local
government to address discrimination against herself and other transgender persons; and
exposes her to an increased risk of discrimination.

       Mr. Roberts is also a Nashville resident, is a teacher at HFAMHS, and is a co-sponsor
of the GSA-HFA. He submits that HB600 prevents the inclusion of sexual orientation and
gender identification in Metro public school’s anti-discrimination policy, limits his ability
to protect students from harassment, and renders future efforts to advocate for students who
face discrimination based on sexual orientation or gender identity.

      Ms. Gilmore is an elected member of the Metro Council and supported the 2011
amendment to the Metro Code. She contends that HB600 curtails her ability to represent and
advocate for her constituents.

       The GSA-HFA is a student group composed of LGBT students which supports
equality and fairness to LGBT students. It asserts that HB600 voids protections under the
Metro schools’ anti-discrimination policies, prevents its members from obtaining local
government assistance, and prevents it from redressing discrimination against transgender
members.

       The TEP is a Nashville-based non-profit organization that seeks to promote and
sustain equality for LGBT Tennesseans through the enactment of favorable legislation and

       3
           The descriptions of Appellants are those provided in Appellants’ amended complaint and brief.

                                                   -11-
the elimination of discriminatory laws. The TTPC is also a non-profit organization. It
educates and advocates for legislation that is favorable to transgender persons at the local,
state, and federal levels. The TEP and TTPC submit that their members include LGBT
Tennesseans who are employees of Nashville city contractors who were stripped of the
benefit of the 2011 amendment to the Metro Code. The TEP and TTPC assert that their
members are “particularly harmed” by HB600 as it excludes transgender persons from
protection under state law in addition to protection under the local ordinance. They further
contend that HB600 impairs their ability to advocate at the local level. The TEP contends
that it advocated for ordinances prohibiting discrimination based on sexual orientation and
gender identity introduced in Shelby County in 2009 and in Memphis in 2010, that it intended
to advocate for anti-discrimination ordinances in Memphis in 2011, and that HB600 rendered
such advocacy futile. The TTPC also submitted that it advocated for the Memphis
ordinances, was “in the process” of advocating for ordinances prohibiting discrimination
based on sexual orientation and gender identity in Bristol, Chattanooga and Maryville, and
that HB600 rendered its efforts futile.

                                         Discussion

       We begin our discussion with some preliminary observations. First, although
Appellants devote a considerable portion of the argument section of their brief to their
argument that the provisions of HB600 violate equal protection guarantees, neither the
merits nor constitutionality of HB600 are now before this Court. The only question now
before us is whether any Appellant has demonstrated a distinct, palpable injury in-fact
sufficient to confer standing to bring this action.

        Second, we note that HB600 resulted in two statutory changes: 1) it added a definition
of “sex” to the THRA, designating “sex” to mean the designation of male or female as
provided on one’s birth certificate; and 2) it created the Equal Access to Intrastate Commerce
Act (“the ICA”), which currently is codified at Tennessee Code Annotated §§ 7-51-1801 &
1802. As noted above, that part of the ICA created by HB600 prohibits local governments
from imposing on any person anti-discrimination standards or definitions that deviate from
those provided by the THRA and other state law, and voids such local provisions imposed
prior to enactment of the ICA.

      Third, we note that the ICA was amended by chapter 91, section 2 of the 2013 Public
Acts. As amended effective April 11, 2013, section 7-51-1802 currently provides:

              (a)(1) No local government shall by ordinance, resolution, or any other
       means impose on or make applicable to any person an anti-discrimination
       practice, standard, definition, or provision that shall deviate from, modify,

                                             -12-
       supplement, add to, change, or vary in any manner from:
                       (A) The definition of “discriminatory practices” in §
               4-21-102 or deviate from, modify, supplement, add to, change,
               or vary any term used in such definition and also as defined in
               such section; or
                       (B) Other types of discrimination recognized by state law
               but only to the extent recognized by the state.
               (2) Any such practice, standard, definition, or provision imposed or
       made applicable to any person by a local government prior to May 23, 2011,
       shall be null and void.
               (b)(1)(A)No local government shall by ordinance, resolution,
               contract or any other means authorize or mandate, as a condition
               of a doing business within the jurisdictional boundaries of a
               local government or contracting with a local government, that
               employers establish a leave policy that deviates from, modifies,
               supplements, adds to, changes, or varies in any manner from
               state statutorily imposed or recognized requirements such as
               those authorized pursuant to § 4-21-408.
                       (B) Subdivision (b)(1)(A) shall not apply if the local
               government is entering into a contract with the federal
               government and the federal government requirements are
               different from those imposed pursuant to state law.
               (c) Except to the extent specifically required pursuant to any federal
       law, no local government shall by ordinance, resolution, contract or any other
       means, mandate or require, as a condition of a [sic] doing business within the
       jurisdictional boundaries of the local government or contracting with the local
       government, that employers must provide health insurance benefits to persons
       employed by such employer.
               (d) Subsections (a), (b) and (c) shall not apply with respect to
       employees of a local government.

Tenn. Code Ann. § 7-51-1802 (Supp. 2013).

        Fourth, we note that none of the Appellants have alleged that either HB600 or its
repercussions on the Metro Code has caused them to be discriminated against in-fact on the
basis of sexual orientation or gender identification. No Appellant contends that he/she has
been denied employment, terminated from employment, denied housing, or otherwise
discriminated against on the basis of sexual orientation or gender identification in a manner
that is capable of judicial redress. Additionally, the amendment to the Metro Ordinance
voided by HB600 was applicable to persons furnishing supplies or services to the Metro

                                            -13-
government; contracting for building and construction projects with the Metro government;
contracting for projects for which funds of the Metro government were expended; and
entering into a lease for use of a Metro government property or facility for a period
exceeding six months. No Appellant asserts that he/she is or has attempted to be employed
by any contractor or organization to which the amendment applied, was denied employment
on the basis of sexual orientation or gender identity, or would have bid on a Metro
government contract but for the repeal of the 2011 amendment to the Metro Code. Although
Appellants assert that the Metro Code was amended in response to the departure of Ms.
Howe from Belmont University following her announcement that she and her same-sex
partner were having a baby, Ms. Howe’s departure from Belmont was characterized by Ms.
Howe as a “mutual decision” in Appellants’ brief and in the trial court.

      Fifth, we observe that the Metro Council is not a party to this action. With these
observations in mind, we turn to the injuries asserted by Appellants.

                                      Injuries Asserted

       Appellants assert multiple cognizable injuries for the purpose of standing. First,
Appellants assert that HB600 creates a “structural barrier” that burdens their ability to obtain
local anti-discrimination protections for LGBT persons, and that this burden constitutes an
injury sufficient to provide standing. Second, Appellants submit that the fact that HB600
repealed previously available anti-discrimination protections constitutes a cognizable injury.
Third, Appellants assert that HB600 subjects them to an immediate and substantial risk of
discrimination, and that this risk constitutes an injury for the purposes of standing. Fourth,
they allege that HB600’s “gratuitous facial discrimination against transgender persons”
constitutes a palpable and distinct injury. Fifth, they assert that Mr. Roberts and GSA-HFA
have standing to challenge HB600 or obtain a judicial declaration that it excludes school
policies. Sixth, they contend that Ms. Gilmore suffered a distinct injury where HB600
impedes the effectiveness of her legislative powers.

       In their brief, Appellants rely on United States v. Windsor, 133 S. Ct. 2675 (2013), in
support of their argument that courts must carefully scrutinize a law whose “principle
purpose” and “necessary effect” is to “disparage and injure” gay persons and their families.
As noted above, the purpose and constitutionality of HB600 are not presently before this
Court. Additionally, the Windsor court noted:

       There is no dispute that when this case was in the District Court it presented
       a concrete disagreement between opposing parties, a dispute suitable for
       judicial resolution. ‘[A] taxpayer has standing to challenge the collection of a
       specific tax assessment as unconstitutional; being forced to pay such a tax

                                              -14-
       causes a real and immediate economic injury to the individual taxpayer.” Hein
       v. Freedom From Religion Foundation, Inc., 551 U.S. 587, 599, 127 S.Ct.
       2553, 168 L.Ed.2d 424 (2007) (plurality opinion) (emphasis deleted). Windsor
       suffered a redressable injury when she was required to pay estate taxes from
       which, in her view, she was exempt but for the alleged invalidity of § 3 of
       DOMA.

United States v. Windsor, 133 S.Ct. 2675, 2684-85 (2013). That plaintiff Windsor suffered
a concrete injury was not disputed in Windsor; it is the only inquiry here.

                                      Structural Barrier

        Appellants rely on Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620 (1996); Washington
v. Seattle School Dist. No. 1, 458 U.S. 457, 102 S. Ct. 3187 (1982); Hunter v. Erickson, 393
U.S. 385 (1969); and Reitman v. Mulkey, 387 U.S. 369 (1967) for the proposition that they
have standing where the ICA invalidated a specific local ordinance that was adopted to
protect a minority group and where Appellants are part of that minority group. Appellants
argue that the ICA created an “unconstitutional structural barrier to the enactment of minority
protections,” and that their injuries are “virtually identical to the harms alleged by the
plaintiffs in Romer, Seattle, Hunter and Reitman.” Citing Seattle School District, 458 U.S.
at 475 n.17, Appellants assert that they have “pled a constitutionally sufficient injury by
alleging that they have been adversely impacted by ‘the comparative structural burden placed
on the political achievement of minority interests.’” They submit that the Seattle School
District court “made very clear that such imposition of special burdens on the ability of
individuals to secure minority protections is, in itself, a present, continuous, and ongoing
injury sufficient to create a justiciable controversy.” They further submit that the “injury
exists regardless of whether the plaintiff alleges that he or she has already experienced
discrimination as a result of the challenged law or whether the law facially targets a particular
group.”

        In Seattle School District, a school district sued the State of Washington challenging
a statute that prohibited the school board from requiring a student to attend a school other
than the school nearest him, but contained exceptions that allowed the board to assign
students to schools away from their neighborhood school for virtually all purposes other than
to achieve racial desegregation. Washington v. Seattle School District No.1, 458 U.S. 457,
465, 102 S.Ct. 3187, 3192 (1982). Standing was not raised as an issue in Seattle School
District, and the statute at issue in that case clearly directly impeded the plaintiff school
district’s ability to assign students to schools to achieve racial integration.

       The ordinance challenged in Hunter was one that rendered Akron, Ohio’s 1964 fair

                                              -15-
housing ordinance ineffective by providing that

       [a]ny ordinance . . . which regulates the use, sale . . . of real property of any
       kind . . . on the basis of race, color, religion, national origin or ancestry must
       first be approved by a majority of the electors voting on the question at a
       regular or general election before such ordinance shall be effective. Any such
       ordinance in effect at the time of the adoption of this section shall cease to be
       effective until approved by the electors as provided herein.

Hunter v. Erickson, 393 U.S. 385, 387, 89 S.Ct. 557, 558 (1969). The plaintiff in Hunter,
an African-American resident, brought a mandamus proceeding on behalf of herself, the
municipality, and others similarly situated to require the city to enforce its fair housing
ordinances. The plaintiff, Nellie Hunter, clearly demonstrated a distinct, palpable injury
where she asserted “that a real estate agent had come to show her a list of houses for sale, but
that on meeting Mrs. Hunter the agent ‘stated that she could not show me any of the houses
on the list she had prepared for me because all of the owners had specified they did not wish
their houses shown to [N]egros.’” Id. at 387.

      The Reitman Court affirmed the judgment of the California Supreme Court striking
down a California constitutional provision that provided, in pertinent part:

       Neither the State nor any subdivision or agency thereof shall deny, limit or
       abridge, directly or indirectly, the right of any person, who is willing or desires
       to sell, lease or rent any part or all of his real property, to decline to sell, lease
       or rent such property to such person or persons as he, in his absolute
       discretion, chooses.

Reitman v. Mulkey, 387 U.S. 369, 371, 87 S.Ct. 1627, 1628-29 (1967). In so doing, the
Reitman Court “accept[ed]” the holding of the California Supreme Court that the provision
“involve[d] the State in private racial discriminations to an unconstitutional degree.” Id. at
378-79, 1633. Reitman arose from two California court actions. Id. at 372, 1629. In the first
case, Mulkey v. Reitman, the Mulkeys alleged that Reitman “had refused to rent them an
apartment solely on account of their race.” Id. In the second action, Prendergast v. Snyder,
the Prendergasts sought an injunction prohibiting eviction from their apartment, which they
alleged was racially motivated. Id. The plaintiffs in both actions sued under sections 51 and
52 of the California Code, which provided, in part:

       All persons within the jurisdiction of this State are free and equal, and no
       matter what their race, color, religion, ancestry, or national origin are entitled
       to the full and equal accommodations, advantages, facilities, privileges, or

                                               -16-
       services in all business establishments of every kind whatsoever. Whoever
       denies, or who aids, or incites such denial, or whoever makes any
       discrimination, distinction or restriction on account of color, race, religion,
       ancestry, or national origin, contrary to the provisions of Section 51 of this
       code, is liable for each and every such offense for the actual damages, and two
       hundred fifty dollars ($250) in addition thereto, suffered by any person denied
       the rights provided in Section 51 of this code.

Id. at n.3. The plaintiffs in Reitman undisputedly alleged concrete, palpable injuries in fact.

      In Romer v. Evans, the Supreme Court affirmed the judgment of the Colorado
Supreme Court enjoining enforcement of an amendment to the Colorado Constitution known
as “Amendment 2.” Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620 (1996). Amendment 2
provided:

       No Protected Status Based on Homosexual, Lesbian or Bisexual Orientation.
       Neither the State of Colorado, through any of its branches or departments, nor
       any of its agencies, political subdivisions, municipalities or school districts,
       shall enact, adopt or enforce any statute, regulation, ordinance or policy
       whereby homosexual, lesbian or bisexual orientation, conduct, practices or
       relationships shall constitute or otherwise be the basis of or entitle any person
       or class of persons to have or claim any minority status, quota preferences,
       protected status or claim of discrimination. This Section of the Constitution
       shall be in all respects self-executing.

Id. at 624, 1623. Amendment 2 repealed policies of, for example, the Metropolitan State
College of Denver, Colorado State University, Aspen, Boulder, Denver, and Denver County
that prohibited discrimination on the basis of sexual orientation. It also repealed previously
enacted orders prohibiting discrimination for state employees and in Colorado state statutes,
including for example, the Colorado Insurance Code. Id. at 626-27, 1624-25. Noting the
Colorado Supreme Court’s observation that “[t]he immediate objective of Amendment 2
[was], at a minimum, to repeal existing statutes, regulations, ordinances, and policies of state
and local entities that barred discrimination based on sexual orientation,” the Romer Court
characterized Amendment 2 as effecting “[s]weeping and comprehensive . . . change in [the]
legal status” of LGBT persons. Id. at 627, 1624-25. The Court noted that “Amendment 2,
in explicit terms, [did] more than repeal or rescind” pre-existing provisions. Id. at 624, 1623.
Rather, “[i]t prohibit[ed] all legislative, executive or judicial action at any level of state or
local government designed to protect the named class[.]” Id.

       Standing was not an issue addressed in Romer, and the Supreme Court identified the

                                              -17-
plaintiffs as including “homosexual persons, some of them government employees.” Id. at
625, 1624. Review of the Colorado Supreme Court’s decision reveals that the plaintiffs
included the named plaintiff, Richard G. Evans, eight other individuals, the Boulder School
District, the City and County of Denver, the City of Aspen, and the City Council of Aspen.
Evans v. Romer, 882 P.2d 1335, 1339 (Colo. 1994). In its judgment upholding the trial
court’s injunction enjoining enforcement of Amendment 2, the supreme court noted that
Amendment 2

       alter[ed] the political process so that a targeted class [was] prohibited from
       obtaining legislative, executive, and judicial protection or redress from
       discrimination absent the consent of a majority of the electorate through the
       adoption of a constitutional amendment. Rather than attempting to withdraw
       antidiscrimination issues as a whole from state and local control, Amendment
       2 singles out one form of discrimination and removes its redress from
       consideration by the normal political process. . . .

               In short, gay men, lesbians, and bisexuals are left out of the political
       process through the denial of having an “effective voice in the governmental
       affairs which substantially affect their lives.” . . . Amendment 2 singles out
       and prohibits this class of persons from seeking governmental action favorable
       to it and thus, from participating equally in the political process.

Evans v. Romer, 854 P.2d 1270, 1285 (Colo. 1993). The court noted that Amendment 2
made successful participation in the political process impossible where any appeal to the
government on any issue relating to discrimination based on sexual orientation would be
unsuccessful “irrespective of [the plaintiffs’] ability to summon the support of others, or
carry a majority in an election.” Id. at n.28.

       The issue in Romer was a constitutional amendment that not only repealed existing
anti-discrimination ordinances, but, by its terms, prevented redress against discrimination
based on sexual orientation. Amendment 2 effectively rendered all anti-discrimination
advocacy on behalf of Colorado’s LGBT community meaningless. It left an entire identified
segment of Colorado voters out of the political process with respect to issues affecting them.

       The ICA at issue in the present case is not only far less extensive, it is capable of
redress through the political and judicial processes. Unlike Amendment 2 in Romer, the ICA
does not render political activity for LGBT rights futile or impossible. It does not single out
or prevent an entire class of persons from seeking favorable governmental action or from
participating in the political process with respect to an issue of mutual concern. It does not
render advocacy meaningless regardless of the LGBT’s community’s success in summoning

                                             -18-
the support of others to prevail on the legislature to repeal subsection (a) of the ICA. It does
not prevent the courts from declaring the ICA unconstitutional under the Tennessee
Constitution or the United States Constitution in an action brought by a plaintiff with a
distinct injury. Significantly, the ICA does not apply with respect to employees of a local
government; it does not prohibit local governments from adopting anti-discrimination
policies broader than those provided by State law with respect to local government
employees; as discussed below, it does not apply to Local Education Agencies or schools.
Rather, it prohibits local governments from expanding or varying the provisions of state anti-
discrimination statutes with respect to local government contractors or those conducting
business within the local government’s jurisdictional boundaries.

        That HB600 curtails that ability of local governments to expand the anti-
discrimination protections imposed upon government contractors and local businesses
beyond those imposed by state law is undisputed. In his brief, the Governor asserts that
“[a]fter HB600, no group (including Plaintiffs and the innumerable others who may possess
some characteristic for which they desire anti-discrimination protections) may obtain anti-
discrimination protections beyond the scope of the THRA from a local government.” He
further asserts, “[c]onsequently, Plaintiffs here have suffered no special or unique legal injury
not shared by a large portion of the population, and this supposed ‘injury’ does not confer
standing.”

       Although HB600 curtails the authority of local governments to vary from the
generally applicable State anti-discrimination laws, it does not impose a structural barrier to
Appellants’ ability to advocate for political change. The Colorado Constitutional amendment
struck down by the courts in Romer rendered all LGBT advocacy in Colorado futile at every
level and within every branch of state government. It barred a class of persons from equal
participation in the political process. HB600 erects no such barrier.

          Repeal of Previous Anti-discrimination Protections: The Metro Code

       We next consider Appellants’ assertion that they have alleged an injury sufficient to
confer standing because HB600 invalidated the 2011 amendment to the Metro Code and what
Appellants characterize in their brief as “other similar local legislation.” Appellants rely on
Hunter, Reitman, and Seattle School District for the proposition that the loss of the
protections afforded by the 2011 amendment to the Metro Code constitutes a cognizable
injury. In their brief, Appellants assert that Ms. Howe, Dr. Richmond and the LGBT
members of the TEP, the TTPC, and GSA-HFA “alleged that HB600 stripped them of
previous protections from discrimination that were available to them under the Nashville
Ordinance and local school policies that previously shielded LGBT students from
discrimination and harassment.”

                                              -19-
       As noted above, the anti-discrimination provisions of the 2011 amendment to the
Metro Code were applicable, with exceptions not relevant here, to persons contracting for
building and construction projects or furnishing supplies or services to the Metro government
for which Metro funds were expended, and to persons entering into an agreement for the use
of any Metro government property or facility with a lease term greater than six months.
Neither Ms. Howe nor Dr. Richmond assert that they are within the category of persons to
whom the Metro Code applied.

        Although Ms. Howe was employed by a city contractor and submits that her “sudden
departure from employment with a city contractor that did not have an anti-discrimination
policy was the impetus for the Nashville anti-discrimination ordinance that led to HB600[,]”
there is no dispute that Ms. Howe’s departure from Belmont University, regardless of the
cause, pre-dated the Metro Code amendment. Thus, the repeal of the ordinance had no
impact on Ms. Howe’s employment with a Metro contractor. Additionally, although Ms.
Howe asserts that she was unable to secure another position “for many months” after leaving
Belmont, she ultimately secured employment with the Nashville GLBT Chamber of
Commerce and does not allege that she was denied employment with a Metro government
contractor based on her sexual orientation. Similarly, Dr. Richmond does not assert that she
was or is a Metro government contractor to whom the Metro Code applied. She cannot assert
an injury based on the repeal of the ordinance.

       The TEP and the TTPC assert that their members include LGBT Tennesseans who are
employees of Nashville city contractors. They additionally submit that HB600 deprived
those members of the protections afforded by the 2011 Metro Code amendment. As noted
above, to establish standing an organizational member must establish that “(1) its members
would otherwise have standing to sue in their own right; (2) the interests it seeks to protect
are germane to the organization’s purpose; and (3) neither the claim asserted, nor the relief
requested, requires the participation of individual members in the lawsuit.” American Civil
Liberties Union of Tennessee v. Darnell, 195 S.W.3d 612, 626 (Tenn. 2006) (citations
omitted). Neither the TEP nor the TTPC have established that a member would have
standing to sue in their own right.

       The Supreme Court has opined that

       When the government erects a barrier that makes it more difficult for members
       of one group to obtain a benefit than it is for members of another group, a
       member of the former group seeking to challenge the barrier need not allege
       that he would have obtained the benefit but for the barrier in order to establish
       standing. The “injury in fact” in an equal protection case of this variety is the
       denial of equal treatment resulting from the imposition of the barrier, not the

                                             -20-
       ultimate inability to obtain the benefit.

Northeastern Florida Chapter of Assoc. Gen. Contractors of America v. City of Jacksonville,
508 U.S. 656, 666, 113 S.Ct. 2297, 2303 (1993) (citations omitted). In General Contractors,
the Court held that the organizational plaintiff in that case had standing to challenge a set-
aside program established by the City of Jacksonville where it demonstrated that its members
were “able and ready to bid on contracts and that a discriminatory policy prevented [them]
from doing so on an equal basis.” Id.

       In the case now before us, however, neither the TEP nor the TTPC has identified any
member who was in fact adversely impacted by the repeal of the 2011 amendment to the
Metro Code. Moreover, neither organization has asserted that any member either bid on a
contract but was denied based on their sexual orientation or gender identification, or that any
member would have bid on a Metro contract but for the repeal of the 2011 Metro Code
amendment. Neither organization has established or alleged that a discriminatory policy or
the repeal of a previous anti-discrimination protection prevented a member from bidding on
a contract on an equal basis.

       Ms. Gilmore submits that she demonstrated a distinct injury as a result of the repeal
of the Metro ordinance because the repeal impedes her ability to represent her LGBT
constituents. As we have previously held, a plaintiff’s “status as a public official does not
confer a ‘special interest’ that is sufficient to establish standing.” State ex rel. Watson v.
Waters, No. E2009-01753-COA-R3-CV, 2010 WL 3294109, at *6 (Tenn. Ct. App. Aug. 20,
2010) (quoting see Malone v. City of Knoxville, No. E2002-00734-COA-R3-CV, 2003 WL
21018633, at *3 (Tenn. Ct. App, May 5, 2003)). With respect to state legislators, the Darnell
court stated, “[l]egislators have no special right to standing simply by virtue of their status:
like other plaintiffs, legislators must establish a distinct, concrete injury in fact.” Darnell,
195 S.W.3d at 625 (citations omitted). A legislator may establish standing by demonstrating
that the effectiveness of his vote or his ability to exercise his legislative powers has been
impeded. Id. at 626. In Darnell, the court held that, although the legislator plaintiffs were
outvoted, they had ample opportunity to discuss the challenged statute and to vote on the
measure. Id. The court held that they accordingly had failed to demonstrate an injury
sufficient to establish standing. Id. The supreme court extended this reasoning to city
council members in Fannon v. City of LaFollette, where it rejected plaintiff city council
member’s assertion that, based on his obligation to enforce the council’s processes, he had
standing to file a declaratory judgment action alleging that other members of the council
violated the Open Meetings Act during the course of adopting a resolution increasing the pay
of some city employees. Fannon v. City of LaFollette, 329 S.W.3d 418, 426-27 (Tenn.
2010).



                                              -21-
        Ms. Gilmore’s assertion that HB600 impedes her ability to represent the interests of
her LGBT constituents on the Metro Council is not sufficient to establish standing where
HB600 does not impede her delegated powers. It is well-settled that “local governments
must exercise their delegated power consistently with the delegation statutes from which they
derive their power.” 421 Corp. v. Metropolitan Government of Nashville and Davidson
County, 36 S.W.3d 469, 475 (Tenn. Ct. App. 2000) (citing see Henry v. White, 194 Tenn.
192, 196, 250 S.W.2d 70, 71 (1952)). It is also well-settled that a municipal authority may
not adopt an ordinance that “infringe[s] the spirit of state law or [is] repugnant to the general
policy of the state.” Manning v. City of Lebanon, 124 S.W.3d 562, 565 (Tenn. Ct. App.
2003). Ms. Gilmore’s argument is predicated solely on her status as a Metro Council
member having LGBT constituents; she has not demonstrated a distinct or palpable injury
necessary to establish standing in this case.

        Mr. Roberts and GSA-HFA assert they have standing to challenge HB600 or obtain
a judicial declaration that it excludes school policies. As noted above, Mr. Roberts and GSA-
HFA assert that HB600 hinders their ability to protect LGBT students from discrimination.
In his answer, the Governor asserted “HB600 does not apply to Local Education Agencies
and does not overturn, prohibit, or affect school anti-discrimination or anti-bullying policies
in any way.”

        Although whether HB600 is applicable to Local Education Agencies or to school anti-
discrimination policies was not addressed by the trial court, we note that it is well-settled that
the construction of a statute is a question of law subject to a de novo review. E.g., Gautreaux
v. Internal Med. Educ. Found., 336 S.W.3d 526, 531 (Tenn. 2011) (citation omitted). In light
of the Governor’s answer, we hold that the provisions of HB600 do not apply to Local
Education Agencies or to school policies. Mr. Roberts’ and GSA-HFA’s claims accordingly
are not in controversy where they are predicated entirely on the potential affect of HB600
on policies designed to protect students from discrimination or bullying in Tennessee
schools.

             Repeal of Previous Anti-discrimination Protections: The THRA

        Dr. Richmond, the TEP, and the TTPC assert that Section 2 of HB600, which
amended the THRA to add a definition of “sex” as “mean[ing] and refer[ing] only to the
designation of an individual person as male or female as indicated on the individual’s birth
certificate[,]” deprived them of anti-discrimination protections previously afforded
transgender persons. They contend that by limiting the definition of sex, “HB600 stripped
them of protection under state laws prohibiting sex discrimination, unraveling years of state
and federal jurisprudence.”



                                              -22-
       The Governor, on the other hand, contends in his brief that “HB600 does not in any
way affect[] any person’s gender identity or their ability to exercise that gender identity free
of discrimination[.]” The Governor asserts that the THRA and Title VII of the federal Civil
Rights Act of 1964 prohibit discrimination against any individual on the basis of their failure
to conform to gender stereotypes. The Governor submits, “transsexual individuals are
protected from discrimination on the basis of sex (including discrimination for failure to
conform to gender stereotypes) by the THRA and Title VII of the federal Civil Rights Act.”

        In their reply brief, Appellants assert that the Governor’s contentions with respect to
state law provisions prohibiting discrimination based on sex “largely misses the point” of
their claim. They assert that Section 2 of HB600 “eliminates any protection for a transgender
woman who is discriminated against for being a woman, or for a transgender man who is
discriminated against for being a man - since the birth certificates of those transgender
individuals will have their sex incorrectly identified.” Appellants assert that HB600 is a
“gratuitous elimination of [a] protection[] which affects only transgender Tennesseans and
has nothing to do with HB600’s stated goal of promoting uniformity in business regulations.”

        We are not called upon here to construe the THRA as it applies to transgender
persons, however. Our only question here is whether Appellants have shown any injury to
establish standing. Although Appellants assert the definition of “sex” as inserted into the
THRA by HB600 “strips” them of previously afforded protections, they cite us to no
Tennessee case interpreting the THRA as previously including transgender persons, and we
find none. In Blount County Education Association v. Blount County Board of Education,
we noted that sexual orientation was not a “categor[y] of discrimination” prohibited by the
THRA. Bounty County Educ. Ass’n v. Blount County Bd. of Educ., 78 S.W.3d 307, 318
(Tenn. Ct. App. 2002). Whether discrimination based on sexual orientation or gender
identification is prohibited under federal law or other state law is not before us. In this case,
however, we are not convinced that HB600 in fact repealed a protection previously afforded
transgender persons under the THRA. Additionally, Dr. Richardson does not allege that she
has been discriminated against in fact based on her sexual identity, and the organizational
Appellants do not proffer a member who has in fact been harmed by Section 2 of HB600.

       As noted above, the Governor has stated that HB600 does not apply to Local
Education Agencies or schools. Accordingly, the claims of Mr. Roberts and the GSA-HFA
with respect to the affects of HB600 are not in controversy. Neither Mr. Roberts nor the
GSA-HFA have asserted a demonstrable injury in fact unrelated to the educational context.

                    Risk of Substantial and Immediate Discrimination

       We turn next to Appellants’ assertion that HB600 “places them or their members at

                                              -23-
immediate and substantial risk of discrimination” and that this risk is sufficient to confer
standing. Appellants rely on Romer in support of their argument that standing does not
require a plaintiff to demonstrate actual discrimination. Appellants submit, “[b]y reaching
the merits in Romer, the Court necessarily concluded that a plaintiff who alleges an increased
risk of discrimination as a result of a law’s passage has standing to challenge the enactment,
even if discrimination has not yet occurred.” They additionally rely on Seattle School
District, asserting that none of the plaintiffs in that case had “actually experienced
discrimination as a result of the challenged” act. Appellants also contend that the Tennessee
Supreme Court’s decision in City of Memphis v. Hargett, 414 S.W.3d 88 (Tenn. 2013), and
this Court’s decision in Campbell v. Sundquist, 926 S.W.2d 250 (Tenn. Ct. App. 1996), stand
for the proposition that the likelihood of discrimination is sufficient to establish standing
notwithstanding the absence of a showing of discrimination in fact. The Governor, on the
other hand, asserts that allegations of a hypothetical, conjectural risk of injury is insufficient
to establish standing.

       The limitations imposed by the doctrine of standing restricts courts from “‘decid[ing]
abstract questions of wide public significance . . . even though judicial intervention may be
unnecessary to protect individual rights.’” Darnell, 195 S.W.3d at 620 (quoting Warth v.
Seldin, 422 U.S. 490, 500 (1975)). “[I]njuries that are conjectural, hypothetical, or
predicated upon an interest that a litigant shares in common with the general citizenry are
insufficient” to establish standing. City of Memphis v. Hargett, 414 S.W.3d 88, 98 (Tenn.
2013) (citation omitted). “‘[T]he essential element of standing is an allegation that the
[challenged act] will inflict some injury on the complainant not common to the body of
citizenry.’” Campbell v. Sundquist, 926 S.W.2d 250, 255 (Tenn. Ct. App. 1996), abrogated
on other grounds by Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827 (Tenn. 2008).

        As discussed above, the plaintiffs in Romer and Seattle School district established
sufficient injury to demonstrate standing. In Campbell v. Sundquist, the plaintiffs sought a
declaratory judgment that the Homosexual Practices Act (“HPA”), a criminal law, violated
equal protection guarantees and their right to privacy under the Tennessee Constitution.4
Campbell v. Sundquist, 926 S.W.2d 250, 253 (Tenn. Ct. App. 1996). The plaintiffs in
Campbell admitted that they had previously violated the HPA and alleged that they were
injured by the HPA because it criminalized their intimate, private conduct. Id. They alleged
that they accordingly believed that they were subject to prosecution for violating the HPA,
and that, if convicted, they could lose their jobs, professional licenses, and housing. Id. They
further asserted that, because they were homosexuals, the HPA imposed upon them a real


       4
         The Homosexual Practices Act made consensual sexual penetration with a person of the same
gender a Class C misdemeanor. Tenn. Code Ann. § 39-13-510 (1991).


                                              -24-
threat of prosecution that was “‘not common to the body of citizenry.’” Id. at 255. We
affirmed the trial court’s determination that plaintiffs had standing in Campbell, holding that,
although none of the plaintiffs had been prosecuted under the HPA, their status as
homosexuals “confer[red] upon them an interest distinct from that of the general public with
respect to the HPA.” Id. at 256. The plaintiffs in Campbell faced an actual threat of criminal
prosecution as a result of their past conduct and likely future conduct based upon their sexual
orientation. Appellants in the current case face no such threat and allege no actual instance
of discrimination. HB600 does not criminalize their status as LGBT citizens; it does not
prohibit personal conduct; and it does not impede the right to political advocacy on the part
of any Tennessean, regardless of their sexual orientation or gender identification.

        Hargett was an action filed by the City of Memphis and two Memphis voters seeking
a declaratory judgment that photo identification cards issued by the Memphis City Library
were valid evidence of identification for the purposes of the Voter Identification Act (“VIA”)
signed into law in 2011. City of Memphis v. Hargett, 414 S.W.3d 88 (Tenn. 2013). The
individual plaintiffs in Hargett were Memphis voters who were not permitted to utilize photo
library cards as a means of identification at early voting locations during the August 2012
primary elections.5 Id. at 94. The supreme court determined that the City of Memphis lacked
standing to challenge the determination of the State Coordinator of Elections and Secretary
of State Tre Hargett that photo library cards did not constitute an acceptable form of
identification under the VIA where the City’s asserted injury - infringement on its statutory
right to issue voter identification cards - were mooted by amendments to the VIA in 2013.
Id. at 100-101. The Hargett court determined that the individual plaintiffs had established
an injury sufficient to confer standing, however, where they

        assert[ed] multiple infringements of their right of suffrage, including claims
        that the photo ID requirement established by the [VIA] unlawfully burdens
        their ability to cast an in-person ballot, impermissibly adds a voting
        qualification to those enumerated in our constitution, and violates their right
        to equal protection by imposing different requirements for in-person and
        absentee voters.

Id. at 99. The Hargett court held that




        5
         The individual plaintiffs were permitted to cast provisional ballots and instructed that they were
required to present a valid form of photo identification to the Election Commission by August 6, 2012, in
order for their votes to be counted. Hargett, 414 S.W.3d at 94.

                                                   -25-
       the claimed injuries [were] palpable, as opposed to conjectural or hypothetical,
       because they [were] founded upon the undisputed allegations that [the
       plaintiffs] attempted to cast in-person ballots in the August 2012 primary
       election but were unable to do so because they did not possess photo ID cards
       recognized by election officials as valid evidence of identification under the
       [VIA].

Id. The court determined that the plaintiffs “likewise met the requirement of asserting a
distinct injury by alleging that they were personally prevented from having their votes
counted, as opposed to merely relying upon their status as citizens who may eventually seek
to exercise their right to vote.” Id.

       We disagree with the argument forwarded by Appellants in the current case that
standing in Hargett was predicated on allegations of a hypothetical future injury. The
individual plaintiffs in Hargett were denied the fundamental right of suffrage after having
been assured by the City of Memphis that photo library cards constituted an acceptable form
of voter identification. We note that the Hargett court observed that, in Common
Cause/Georgia v. Billups, which addressed a “virtually identical standing issue,” the
Eleventh Circuit ruled:

       Even if [the plaintiffs] possessed an acceptable form of photo identification,
       they would still have standing to challenge the statute that required them to
       produce photo identification to cast an in-person ballot. A plaintiff need not
       have the franchise wholly denied to suffer injury. Any concrete, particularized,
       non-hypothetical injury to a legally protected interest is sufficient. Requiring
       a registered voter either to produce photo identification to vote in person or to
       cast an absentee or provisional ballot is an injury sufficient for standing.

Id. at 100 (quoting Common Cause/Ga. v. Billups, 554 F.3d 1340, 1351-52 (11 th Cir. 2009)
(citation and internal quotation marks omitted)). The Hargett court agreed with the Eleventh
Circuit’s assessment, stating that the plaintiffs’ injuries were “predicated upon their
entitlement to vote in person, free of the photo ID requirement.” Id. at 99. The holding of
the court in Hargett was not predicated on a hypothetical possibility of some future injury;
it was grounded on an actual injury to the plaintiffs’ right to vote, “free of the photo ID
requirement.”

       Appellants in this case reference no actual instance of discrimination as a result of
HB600. They have not been denied a fundamental right. Their allegations of immediate risk
of discrimination are hypothetical and conjectural and are insufficient to confer standing.



                                             -26-
                                   Facial Discrimination

        We turn finally to Appellants’ contention that Section 2 of HB600, which adds the
above referenced definition of “sex” to the THRA, constitutes “gratuitous facial
discrimination” that targets transgender persons and evidences HB600's “discriminatory
purpose.” Appellants’ argument, as we understand it, is that because the THRA has been
interpreted as coextensive with federal law, and because the THRA as amended by HB600
now differs from protections available under Title VII of the federal Civil Rights Act, HB600
“withdraws previously existing protections and exclud[es] transgender Tennesseans, and only
transgender Tennesseans, from the full scope of protection against sex discrimination that
is available to all other residents of the state[.]”

        As Appellants assert, the THRA “is a comprehensive anti-discrimination law . . .
intended to further the policies embodied in the similar federal laws[.]” Wilson v. Rubin, 104
S.W.3d 39, 48 (Tenn. Ct. App. 2002) (internal citation omitted). Additionally, “[i]n light of
the intended overlap in purpose between the [THRA] and federal anti-discrimination laws,
Tennessee’s courts regularly consult the decisions of their federal counterparts for guidance
when called upon to construe and apply the [THRA].” Id. (citations omitted). Federal
precedents are not binding on the courts of Tennessee with respect to actions brought under
Tennessee law, however, “and do not limit our ability to give the fullest possible effect to the
[THRA]. Id. n.6 (citations omitted).

        Appellants argument, as we perceive it, is that the divergence from federal law that
allegedly results from the impact of HB600 on the THRA constitutes an injury sufficient for
standing. We must disagree. Neither Dr. Richmond, the sole individual transgender
Appellant, nor the organizational Appellants reference any direct, palpable injury caused by
the addition of the definition of “sex” to the THRA by HB600. Without opining on whether
the THRA remains coextensive with federal law with respect to anti-discrimination
protections afforded to transgender persons, we find no allegation of injury sufficient to
confer standing to challenge HB600 on this basis.

                                           Holding

      It is undisputed in this case that HB600 does not apply to Local Education Agencies
or Tennessee schools, and we so hold. The claims of Mr. Roberts and GSA-HFA
accordingly are dismissed as moot. In light of the foregoing discussion, we affirm the
judgment of the trial court dismissing the claims of Ms. Howe, Dr. Richmond, Ms. Gilmore,
the TEP, and the TTPC for lack of standing where they have failed to establish any direct,
cognizable injury. Costs on appeal are taxed to the appellants, Lisa Howe, Erica Gilmore,
Marisa Richmond, Wesley Roberts, the Tennessee Equality Project, and the Tennessee

                                              -27-
Transgender Political Coalition. This matter is remanded to the trial court for enforcement
of the judgment and the collection of costs.




                                                  _________________________________
                                                  DAVID R. FARMER, JUDGE




                                           -28-
