Texas' bathroom bill debate shows a widening gap between liberal cities and the conservative state

For Ashley Smith, the idea of entering a men’s restroom is absurd.

The San Antonio architect and mother has long, sleek brown hair and often wears figure-hugging dresses and jewelry. Yet her birth certificate, like those of many transgender women, reads “male.”

When Texas lawmakers met last week to consider two bills to restrict transgender access to bathrooms, Smith told state senators that being forced to use a men’s room when she meets clients at a university or visits her kids at school could potentially subject her to violence.

“That will cause a ruckus,” Smith said Friday as she joined hundreds of activists at a committee hearing at the Texas Capitol to voice her opposition to the legislation. “I’ve read that this bill is supposed to protect safety. Well, what about my safety? Is it going to be open season on transgender people and our families?”

To Lt. Gov. Dan Patrick, who forced a special session for legislators to consider the bills, safety is indeed the point.

“We don’t want sexual predators — and I’m not talking about transgender people,” the Republican said July 17 to the Texas Public Policy Foundation, a conservative think tank based in Austin. “I don’t want sexual predators masquerading as being transgender to enter into a bathroom to follow a little girl, or somebody’s wife, or somebody’s daughter.”

After dividing North Carolina, the battle over regulating transgender bathroom access has become one of the most bitter and contentious political issues in Texas in recent history, exposing a widening fault line between liberal cities and the conservative state, as well as social conservatives and more centrist, business-friendly Republican legislators.

“The principal political divide in Texas is not Republican versus Democrat,” said Mark Jones, a fellow in political science at Rice University’s Baker Institute for Public Policy. “It’s centrist Republicans versus movement or tea party conservative Republicans.”

Following more than 10 hours of testimony — mostly from those opposed to a bathroom bill — the Senate State Affairs Committee approved a bill Friday that would restrict access to bathrooms, showers and changing facilities in government buildings and public schools based on the sex listed on a person’s birth certificate.

Senate Bill 3 also would ban cities, counties and schools from adopting nondiscrimination ordinances allowing transgender people to use public restrooms of their choice or participate in athletic events that match their gender identity.

Republican state Sen. Lois Kolkhorst, the bill’s author, said it attempts to strike “a balance between the right to declare your gender and the right of a parent to protect their child.” They would also safeguard the gains made in women’s athletics, she argued.

“Ask a parent if they approve of allowing boys to shower with girls in a locker room,” Kolkhorst said as she introduced the bill Friday. “Ask a woman how safe she feels when a man appears in a restroom. Ask a female athlete if it’s fair for her, after she has spent her lifetime trying to compete in a sport, if a boy decides to play in her sport.”

Some of the state’s biggest and most progressive cities, such as Austin, Dallas and San Antonio, have enacted local protections for LGBT Texans. Officials from those cities and corporations, including American Airlines and AT&T, have spoken out against bathroom bills, arguing they could inflict significant damage on the Texas economy and hamper the state's ability to attract new businesses and jobs.

Last week, IBM, one of the state’s largest employers, took out full-page ads in major newspapers in Austin, Dallas and San Antonio, saying, “No one should face discrimination for being who they are.”

During the regular legislative session that ended in May, the Senate was quick to pass a bathroom bill by Kolkhorst. But that bill perished in the more moderate state House of Representatives, where Speaker Joe Straus, a business-friendly, centrist Republican, opposed it.

After a number of key conservative bills failed to pass in the House during the regular session, Patrick, a former radio talk show host and one of the state’s leading conservative Republicans, forced a special session by refusing to pass a bill that is vital to the operation of a handful of important state agencies, including the Texas Medical Board.

In June, Republican Gov. Greg Abbott announced he would call lawmakers back to Austin for a monthlong special session, and tension has ratcheted up as Straus has spoken out against a bathroom bill.

“I’m disgusted by all this,” Straus told the New Yorker magazine in a recent interview. “Tell the lieutenant governor I don’t want the suicide of a single Texan on my hands.”

With the Senate bathroom bill facing a slim chance of passing the House, a House Republican has introduced two alternative bills.

House Bill 46, filed by state Rep. Ron Simmons, would block cities, counties and school districts from adopting anti-discrimination measures that regulate multiple-occupancy restrooms. His alternative bill, House Bill 50, would apply just to school districts.

Last year, North Carolina became a hero or a pariah — depending on the point of view — when then-Gov. Pat McCrory, a Republican, signed House Bill 2, a sweeping law that ordered schools and public agencies to require multiple-occupancy restrooms to be used by people based on the “biological sex” listed on their birth certificate.

After economic boycotts and the loss of several major sporting and music events, the state eventually repealed that law.

Under a new “compromise,” House Bill 142, North Carolina legislators eliminated a provision that required transgender people to use restrooms in many public buildings according to the sex on their birth certificates. But that new law prohibits local governments from enacting new nondiscrimination ordinances, and on Friday the American Civil Liberties Union and Lambda Legal filed a fresh court challenge arguing the new law is designed to single out transgender people for discrimination.

If Texas legislators pass their own bathroom bill, they could also face court battles.

LGBT advocates could argue that having the government check birth certificates and inquire about their sexuality violates the 14th Amendment right to due process, said Dale Carpenter, a professor of constitutional law at Southern Methodist University in Dallas.

Forcing transgender people to use bathrooms that align with their birth certificate could be interpreted as a form of sex discrimination that violates the amendment’s right to equal protection, Carpenter said.

Although the state House bills would be more difficult to challenge because they don’t mention sex, Carpenter said, opponents could argue they reflect animus against a small, unpopular group of people, in violation of the equal protection clause. Transgender children in schools could also argue, under Title IX of the federal Education Amendments of 1972, that they suffer from a form of sex discrimination.

“Even though nothing in the bill specifically mentions transgender people, courts can read between the lines and see what’s really going on,” Carpenter said.

For some lawmakers, the best action would be no action at all. Jones says many House Republicans hope Straus will block any bathroom bill, even if they will not say so publicly.

“The last thing they want to do is actually be forced to cast a vote on it because it’s a no-win situation,” Jones said. “Either they vote against the business community and what’s in the best interest of Texas, or they vote against it and gift-wrap a campaign plank for an opponent to use against them in the March Republican primary.”

Jarvie is a special correspondent.

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