On Nov. 17, 2023, California Gov. Gavin Newsom posted a Nov. 14 article from the New Republic on X (formerly Twitter) with the headline, "A City in Tennessee Banned Public Homosexuality — and We All Missed It."
This claim — that a city ordinance in Murfreesboro, Tennessee, banned public homosexuality — was broadly true when an ordinance on "community decency" went into effect in June 2023. But explicit reference to homosexuality was removed from the code in November 2023.
In June 2023, the Murfreesboro City Council passed Ordinance 23-O-22, a law purportedly regarding community decency that The Associated Press described as being "designed to ban drag performances from taking place on public property." As described by its authors, the new law "supplement[ed] existing civil and criminal sanctions for indecent behavior [by] barring persons who engage in prohibited conduct from sponsoring events on a public space for two years and increasing to five years where the prohibited conduct occurs in the presence of minors."
The bill included "sexual conduct" as one form of indecent behavior covered by the June 2023 enhancements to the code. This "conduct" term, however, was defined by "Section 21-71 of the Murfreesboro City Code," which had been in place since the 1970s and that defined terms used in a section of city code detailing criminal offenses related to "exposing minors to harmful materials." That code defined "sexual conduct" in a way that broadly included "acts of [...] homosexuality":
"Sexual conduct" means acts of masturbation, homosexuality, sexual intercourse, or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks or, if such person be a female, breast.
A literal reading of the new law therefore could have criminalized any sort of public display of homosexuality, even if such a display was not overtly sexual or sexual in nature.
Then in October 2023, the city, citing the new law, denied a permit to the non-profit Tennessee Equality Project (TEP) to hold a Pride rally, which the group had held every year since 2016. That decision was made on the basis of this new city code and the allegedly indecent material present at the 2022 TEP event. As reported by The Associated Press, the ACLU took up the case on behalf of TEP:
The legal challenge is the latest development in the ongoing political battle over LGBTQ+ rights inside Tennessee, where the state’s conservative leaders have sought to limit events where drag performers may appear, restrict classroom conversations about gender and sexuality, and ban gender-affirming care. [...]
According to the 67-page complaint, the organization [TEP] has faced recent opposition from Murfreesboro leaders after conservative activists alleged that drag performances that took place during the 2022 Pride event resulted in the “illegal sexualization of kids."
TEP denied the shows were inappropriate, noting that the performers were fully clothed.
However, the city quickly warned the organization it would be denying any future event permits and later approved updating its “community decency standards” intended to “assist in the determination of conduct, materials, and events that may be judged as obscene or harmful to minors.”
The suit alleges the ordinance violates the First Amendment for chilling free speech rights, as well as argues that it breaks the 14th Amendment for discriminating against the LGBTQ+ community.
On Oct. 26, the federal judge assigned to the case issued an order blocking the city from denying TEP's request for a permit to hold the 2023 pride event. As reported by the Daily News Journal:
[The] ruling tells the local government, Murfreesboro City Manager Craig Tindall, Mayor Shane McFarland, the Murfreesboro Police Department and other city officials, that they "shall not enforce or take any action pursuant to the provision to Murfreesboro City Code 21-71 that includes 'homosexuality' within the definition of 'sexual conduct.'"
Against this backdrop, in October 2023, the Murfreesboro council took up the issue of removing homosexuality from the list of "acts" that could constitute sexual conduct. On Nov. 2, a proposal removing the word passed, with the change set to take effect on Nov. 17 — the day of Newsom's tweet. As reported by journalist Erin Reed:
As of tomorrow, Murfreesboro will not have "homosexuality" in its code banning public homosexuality anymore.
That said, the new indecency law that Murfreesboro passed still contains very vague "community standards" provisions used to target Pride and LGBTQ books. pic.twitter.com/N4rFzqhxFX
— Erin Reed (@ErinInTheMorn) November 16, 2023
Reed argued that while this change made "the targeting of LGBTQ+ people less explicit," the "vague 'community standards' section will still likely be used to target Pride events and books," she said. The ACLU case is ongoing.
"The parties agreed and the judge accepted an agreement temporarily suspending enforcement of an ordinance designed to specify certain civil penalties against indecency in public spaces and to protect children from indecent conduct," Murfreesboro spokesman Mike Browning said in a statement. "However, other existing state statutes and city ordinances and penalties regarding such conduct remain applicable.”
Because public homosexuality is no longer explicitly prohibited by Murfreesboro city code, the claim made by Newsom and others is out of date. It is still possible, however, based on statements made by the local government and the broad nature of the law, that the portion of code remaining could be used to prevent future LGBTQ+ events.