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In 2017, so-called “bathroom” legislation was introduced in the Texas Legislature. The issue, which had not been a topic of discussion previously in Texas, was instantly divisive and contentious. Lt. Governor Patrick views the legislation as a top priority, while Speaker Straus has said that the legislation is unnecessary and potentially harmful for the state’s economy.
In making the case that the issue is urgent, Lt. Governor Patrick points to the support of “the faith community,” represented most visibly by the Houston Area Pastors Council—a group of largely evangelical Christian clergy with a membership of 200 according to their website. The Pastors Council, however, comprises a narrow slice of the religious spectrum in Texas, and other faith communities are less enthusiastic.
Texas Impact so far has characterized bathroom legislation as a distraction from critical issues facing Texas: during the regular session, lawmakers chose to debate bathroom bills instead of focusing on issues like the foster care system, school finance, and health care. No bathroom legislation passed during the regular session.
Now, however, bathroom legislation is on the Governor’s call for the special legislation session starting July 18. No longer merely a distraction from other more urgent state priorities, bathroom legislation is a mandatory decision point for lawmakers. The legislation would pose a threat to vulnerable communities and the state’s economy, undermine local governance, and affirm discrimination.
Bathroom bills are intended to discriminate against transgendered people.
Bathroom bills are intended to target transgendered individuals, requiring them to use public bathrooms that do not correspond to the gender with which they identify. By singling out transgendered individuals, such policies would expose them to increased risk of bullying and other threats, creating a less safe environment not only for the targeted individuals but for the larger community.
Bathroom bills also are intended to preempt local anti-discrimination ordinances. Opponents of the bills say preemption of local ordinances is dismissive of the authority and wisdom of local elected officials and their constituents. If the state assumed control over local anti-discrimination decisions, it could impose rules that did not serve the best interests of local communities.
Local ordinances protecting the LGBTQ community from discrimination are well established in many cities and states across the country. San Antonio, Dallas, Austin, Fort Worth, and Plano all have ordinances protecting individuals from discrimination based on sexual or gender identity. These ordinances are not limited to public bathroom use, but bathrooms are one instance that the ordinances cover. Fort Worth first passed an ordinance protecting individuals on the basis of sexual orientation in 2000, and then extended those protections to include gender identity in 2009. Austin established similar protections in 2004.
Bathroom bills are a new, manufactured phenomenon nationally.
In 2013, then-Representative John Kavanaugh of Arizona introduced the first piece of state legislation that would have criminalized people who used a public bathroom not corresponding with the gender identified on their birth certificate. After a national uproar, Rep. Kavanaugh pulled down his bill.
Between 2013 and the present, 27 state legislatures have considered some form of legislation that would regulate bathroom use based on “biological sex,” repeal local ordinances designed to protect against discrimination related to bathroom use, or both. Far from responding to organically driven community demands, the bills appear to be part of a coordinated national strategy led by a wealthy, conservative funder.
The language for many of the bills proposed in state legislatures follows a model crafted and promulgated by an organization called Alliance Defending Freedom (ADF). Portions of ADF’s model language have been included in bills introduced in Nevada, Minnesota, and Texas, to name a few.
ADF’s website states that the organization is focused on three policy areas: “religious freedom,” “traditional marriage,” and “sanctity of life.” ADF advocates on these issues, provides training on them, and funds other groups engaging the issues. ADF has distributed $47 million in grants and other assistance since their inception in 1994.
For much of the 2017 regular session, the Texas bathroom bill debate centered on Senator Lois Kolkhorst’s SB 6. Responding to claims that protections for transgendered Texans would “lead to boys and girls showering together and using the same restrooms,” SB 6 would have nullified local ordinances that protect LGBTQ Texans from discrimination with regard to bathroom use, and also would have required schools, state agencies, and other government buildings to have designate bathrooms for a person’s “biological sex,” as reflected on the individual’s birth certificate. A second bill, HB 2899 by Representative Ron Simmons, was introduced as a compromise that omitted the designation of bathrooms for a person’s biological sex, but kept the preemption of local anti-discrimination ordinances—similar to North Carolina’s revised, compromise law.
Bathroom Legislation is a dangerous “solution” in search of a problem.
While proponents say that it is crucial for Texans’ privacy and security, bathroom legislation appears to be a solution in search of a problem. Proponents of the bills say they protect women and children from possible sexual predators, but law enforcement experts counter that bathroom use protection based on gender identity doesn’t increase the occurrence or reporting of public safety incidents.
Critics say bathroom bills are “unconstitutional, unenforceable, and harmful,” which may explain why, despite the widespread consideration of “bathroom bills” over the past four years, North Carolina remains the only state actually to have enacted and implemented such legislation. A bathroom bill passed in South Dakota in 2016, but the Republican governor vetoed it. The bathroom bill in North Carolina, HB 2, was signed by then-Governor Pat McCrory in 2016, but saw such overwhelming opposition that the newly elected Democratic governor tried to repeal the law during a special session. North Carolina failed to fully repeal the bill, and the Legislature kept a compromise bill that nullifies the requirement for individuals to use the bathroom according to their birth certificate genders, but still repeals local anti-discrimination ordinances as they relate to access to bathrooms.
Bathroom legislation not only would fail to address any existing problem, but also would create problems that don’t currently exist. In addition to diminishing public safety and security, the legislation would threaten the resources and economy of Texas.
After the passage of HB 2 in North Carolina, the National Collegiate Athletic Association, the National Basketball Association, and the Atlantic Coast Conference all removed or threatened to remove high profile games and tournaments from the state. Businesses like PayPal decided against expansion projects, and representatives from the entertainment industry cancelled tours and projects in the state. Projected losses ranged from $3 billion to $4 billion. It is unclear the exact economic damage that Texas would suffer if such legislation passed, but based on a letter to Gov. Abbott from the CEOs and presidents of major companies including Dell, Facebook, Amazon, Microsoft, and IBM, as well as the number of firms that have joined coalitions opposed to these bills, the economic impact could be significant.
Bathroom legislation tricks voters into supporting discrimination they would otherwise oppose.
While the majority of Americans are in favor of anti-discrimination protections for the LGBTQ community, the bathroom issue appears to be a potent tool for carving away Republican support for such protections. According to a Public Religion Resources Institute (PRRI) poll, 77 percent of Democrats and 60 percent of Republicans are in favor of these protections. In contrast, 30 percent of Democrats and 59 percent of Republicans are in favor of laws that require individuals to use the bathroom that corresponds to their sex at birth. Apparently, even though a majority of Republicans favor anti-discrimination ordinances for the LGBTQ community, they oppose them when the issue is framed as “bathroom” legislation.
Bathroom legislation is intentionally discriminatory. It wastes the time and resources of the Texas Legislature, and would endanger the Texas economy by creating an environment that hinders business. The legislation has failed in every state where it has been proposed with the sole exception of North Carolina, where it resulted in political and economic chaos. Businesses, the sports industry, entertainment, law enforcement, and mainstream faith communities all oppose the legislation. As lawmakers prepare for the upcoming special session, they might well consider who is driving the push for a bathroom bill, and whether those interests have Texas’ best interests at heart.