Texas Lt. Gov. Dan Patrick really wanted to do something about transgender people in bathrooms. So he issued an ultimatum to the legislature: Pass an anti-trans bathroom bill or he would force a special session to do it. On Sunday, the Texas House gave in.
The Texas House on Sunday approved an amendment to an otherwise unrelated education bill that will effectively ban transgender students in public schools from using the bathroom and locker room that aligns with their gender identity. The bill forces students to use the facility for the gender they were assigned at birth (what it calls “biological sex”) or a single-occupancy facility. If the school doesn’t have a single-occupancy facility or one isn’t available, trans students can use a multi-occupancy facility as long as they are alone.
In effect, the bill relegates trans students to using a different set of bathrooms and locker rooms — or at least bathrooms and locker rooms at different times — than other students. Some Democrats in the legislature argued that this is a callback to racial segregation.
“White. Colored. I was living through that era. … Bathrooms divided us then, and it divides us now,” state Rep. Senfronia Thompson (D-Houston), who is black, said, according to the Texas Tribune. “America has long recognized that separate but equal is not equal at all.”
Texas Gov. Greg Abbott and Lt. Gov. Patrick, who are both Republicans, have become strong proponents for an anti-trans bathroom bill. Last year, Texas led states in suing the Obama administration over a guidance that asked schools to let trans students use the bathroom for their gender identity.
Earlier this year, Patrick also pushed a bathroom bill in the Texas Senate. But the measure was believed to be dead on arrival due to a lack of interest in the House — until Patrick threatened to hold up a budget bill to force a special session to pass his anti-trans bill.
So the Texas House approved a milder version of the bill Patrick proposed. Patrick’s bill would have applied to all public bathrooms in the state, and it didn’t require public schools to make accommodations for trans students. The House measure only applies to public schools, and it requires accommodations for a single-occupancy bathroom for trans students.
The bill is expected to get final approval from the House on Monday. It would then go to the Senate, and finally to the governor’s desk.
Patrick, however, seemed skeptical of the House measure. On Monday, he said that the proposal uses “ambiguous language” and “doesn’t appear to do much.”
The House measure also drew sharp criticism from LGBTQ groups, who argue that these types of bills are stigmatizing and unnecessary.
“This shameful amendment is yet another example of Texas lawmakers’ anti-LGBTQ agenda,” JoDee Winterhof, senior vice president for policy and political affairs of the LGBTQ group HRC, said in a statement. “Transgender youth deserve the same dignity and respect as their peers, and this craven attempt to use children as a pawn for cheap political points is disturbing and unconscionable.”
In some ways, this is anti-trans bathroom hysteria coming full circle. The current fight over trans people in bathrooms began in 2014 in Houston, where voters overturned a law that protected LGBTQ people from discrimination based on sexual orientation and gender identity in the workplace, housing, and public accommodations. Critics of the Houston law propagated a myth that the statute would allow men to pose as trans women so they could go into women’s bathrooms and sexually assault women.
There are no such cases of this happening in any US jurisdiction with nondiscrimination laws for LGBTQ people. But that didn’t stop North Carolina from passing an anti-LGBTQ law that barred trans people from using the bathroom that aligns with their gender identity. And it’s apparently not stopping Texas from passing its own version of a bathroom bill.
Anti-trans bathroom laws are based on a huge myth
Let’s be clear: The argument for bills like Texas’s is based on a myth. Supporters claim that letting trans people use the bathroom or locker room for their gender identity will allow men to disguise themselves as trans women to go into women’s bathrooms or locker rooms and sexually assault and harass women.
But even if trans people are allowed to use the bathroom or locker room that aligns with their gender identity, sexual assault remains illegal.
There’s also no evidence that nondiscrimination laws — and other policies that let trans people use the bathroom for their gender identity — lead to sexual assault in bathrooms and locker rooms. In two investigations, the left-leaning media watchdog organization Media Matters confirmed with experts and officials in 12 states and 17 school districts with protections for trans people that they had no increases in sex crimes after they enacted their policies.
Conservatives who favor these policies usually counter that there are examples of men sneaking into women’s bathrooms to attack women. But as PolitiFact reported, none of the examples cited in the US happened after a city or state passed a nondiscrimination law or otherwise let trans people use the bathroom or locker room for their gender identity. Instead, these seem to be examples of men doing awful things regardless of the law — which has, unfortunately, happened since the beginning of civilization.
One example is a case in Toronto, Canada, which now has a nondiscrimination law, in which a man disguised himself as a woman and attacked women in shelters. But the attacks happened months before Ontario (Toronto’s province) protected trans people in a nondiscrimination law. So the law couldn’t have been the cause.
While the issue is now being used primarily against trans people, historically bathroom fears have been regularly deployed against civil rights causes. They were used against black people to justify segregation — by invoking fears that black men would attack white women in bathrooms. And they were used to stop the Equal Rights Amendment, which tried to establish legal equality between men and women, because opponents claimed it would lead to the abolition of bathrooms for different genders, potentially putting women in danger.
Some people are also, frankly, just bothered by the idea that someone in the same bathroom or locker room won’t share the same genitalia as them.
This gets to the heart of the issue: Bathrooms are places where really private things happen, and that makes people feel vulnerable in all sorts of ways. “People are afraid because they’re exposed,” Kathryn Anthony, author of Designing for Diversity: Gender, Race and Ethnicity in the Architectural Profession, told the Guardian. “There’s a vulnerability we feel in public restrooms we don’t feel in other places.”
But a lot of things happen in public bathrooms that people aren’t comfortable with — and people have managed to deal with it to accommodate others’ rights and needs.
So if it’s not harming anyone, perhaps it’s best, LGBTQ advocates argue, to let trans people use the facility for their gender identity without making them feel ostracized and discriminated against. (Discrimination is a huge contributor to gender dysphoria, a medical condition some trans people experience that can cause depression, anxiety, and even suicidal ideation.)
But conservative lawmakers have latched onto the insecurity over bathrooms to propagate myths about the power of discriminatory laws to stop horrible attacks in bathrooms and protect people’s privacy. And even though these are plainly myths with no evidence behind them, they have worked to sustain discrimination, from Jim Crow policies to Texas’s anti-trans measure.
This is part of a broader battle over nondiscrimination protections for LGBTQ people
At some level, it might be bewildering that the discussion about LGBTQ rights has now become largely about bathrooms. How did we get to this point?
Simply put, the discussion is about bathrooms because conservatives have found the topic a winner in their fight against civil rights laws that protect LGBTQ people from discrimination.
In most states, it is legal under local and state law to discriminate against someone based on their sexual orientation or gender identity in the workplace, housing, public accommodations, and schools. So under most states’ laws, an employer can legally fire someone because he’s gay, a landlord can legally evict someone because she’s lesbian, and a hotel manager can legally deny service to someone who’s transgender — for no reason other than the person’s sexual orientation or gender identity.
This is essentially what Houston was trying to fix with its measure: It wanted to make sure that, at least within the city’s borders, people couldn’t get away with this kind of discrimination against LGBTQ people.
Generally, the public supports laws like Houston’s. In Texas, for example, 67 percent of Americans support nondiscrimination protections for LGBTQ people, according to a 2015 survey from the Public Religion Research Institute. That’s lower than the national average of 71 percent, but still a clear majority.
Yet scaring people about these kinds of laws with the bathroom myth has proven an effective way to turn around public opinion. In Houston, early polls showed that either pluralities or majorities supported the nondiscrimination law. Yet by Election Day, after months of discussion about how the law would play out in public bathrooms, there was enough opposition to repeal Houston’s law.
So conservatives have latched onto the myth as part of a broader effort to resist laws that shield LGBTQ people from discrimination.
Bathroom laws are bad for trans people — but also business
Obviously, the foremost victims of anti-trans bathroom laws are trans and gender nonconforming people. Forcing trans people to use the bathroom that doesn’t align with their gender identity acts as a reminder that as far as society has come on some LGBTQ issues, it’s still not completely willing to accept trans people and their identities — even if trans people pose no danger to anyone else.
Under these measures, trans people also have to constantly fear using the bathroom that corresponds with their gender identity. As Lily Carollo wrote for Vox, “From now until the law is repealed or settled in court, or until my birth certificate is amended, I will keep breaking the law. I’m not the only one. I will be an anxious mess every time I use the bathroom, but I don’t see any option. It’s all I can do, really. I am a woman.”
Gavin Grimm, a teenage trans activist who sued his school for bathroom access, framed it another way: “This wasn’t just about bathrooms. It was about the right to exist in public spaces for trans people,” Grimm told me, quoting trans actress Laverne Cox. “Without the access to appropriate bathrooms, there’s so much that you’re limited in doing. If you try to imagine what your day would be like if you had absolutely no restrooms to use other than the home, it would take planning. You would probably find yourself avoiding liquids, probably avoiding eating, maybe going out in public for too long at a time.”
These measures have also proven to be bad in another way: They can cost jobs.
After North Carolina passed its anti-LGBTQ law, PayPal and Deutsche Bank pulled expansions into the state that would have created hundreds of jobs. The NBA and NCAA pulled sports events from the state. Several musicians, such as Bruce Springsteen and Pearl Jam, canceled concerts in the state. A+E Networks and 21st Century Fox said they would reconsider using North Carolina as a filming location in the future. And more than 200 business leaders signed a letter asking the governor to repeal the law.
Texas business groups, meanwhile, have already lined up against a bathroom bill in the state, with the Texas Association of Business taking a public stance against the Senate measure.
Businesses have a financial incentive to act this way: A major goal of theirs is to attract new talent. But young hires are also more likely to be more supportive of pro-LGBTQ causes, including trans people in bathrooms, and some of them may be LGBTQ themselves. So appearing supportive of LGBTQ rights can be one way that a company shows it shares the values of the up-and-coming workforce.
Whatever the reason, businesses’ resistance to anti-LGBTQ laws is enough to make any lawmaker reconsider whether to pass these bathroom measures.
“Whether you’re a Democratic governor or a Republican governor, virtually without exception, goal No. 1 is to keep jobs in your state and to attract new jobs that you don’t currently have,” Chad Griffin, president of the LGBTQ rights group HRC, previously told me. “That is one thing that is shared between conservative governors, liberal governors, moderate governors.”
It was this kind of pressure from businesses that led North Carolina to partially repeal its anti-LGBTQ law. Now the question is whether similar pressure will stop Texas from passing its own anti-LGBTQ measure.