The conservative and moderate wings of the Texas GOP have spent months fighting over a proposal to ban people from using public bathrooms that don’t correspond to the gender listed on their birth certificates. But on Sunday night, Republicans in the Texas House settled on a deal that moderates hope will help them avoid a repeat of the backlash to a similar GOP bill in North Carolina: They will require public and charter schools to provide separate facilities for students who don’t want to use the bathroom or locker room that corresponds to the sex they were assigned at birth.
That proposal sounds a lot like segregation of trans kids, some critics argue.
The amendment may be seen as ensuring privacy for students, but it also creates a “separate but equal” place “where the bullies of the world can point to and isolate trans people, and still create a great deal of pain for our transgender children,” Lauryn Farris, Alamo regional coordinator for the Transgender Education Network of Texas, told HuffPost on Monday.
“Bathrooms divided us then and bathrooms divide us now. Separate but equal is not equal at all,” Texas Rep. Senfronia Thompson, a Houston Democrat, said Sunday as other members on the floor applauded her, according to the Associated Press.
The intent was not to discriminate but to accommodate “all kids,” said Republican Texas Rep. Chris Paddie, who authored the language, according to the AP.
But the problem with seeking a compromise on such a bill is that “there is no moral middle ground on discrimination,” explained Texas Freedom Network President Kathy Miller in a statement. “Either you discriminate, or you don’t. This amendment, if it becomes law, would leave transgender students even more vulnerable to being stigmatized and bullied.”
With the House vote on Sunday, the measure is likely to become law. The Texas Senate already passed a harsher version of the same one. And Gov. Greg Abbott (R) has also pushed legislators to pass some kind of bathroom restriction this session.
Sunday’s deal revived a stalled effort. Texas Lt. Gov. Dan Patrick, an outspoken conservative, made the bathroom legislation one of his priorities this year, describing it as a commonsense way to keep men out of women’s restrooms in order to prevent crime. (Contrary to Patrick’s assertions, no evidence exists to suggest that allowing people to use the bathroom of their gender identity exposes people to crime in bathrooms.) But the speaker of the Texas House, Joe Straus ― an establishment Republican more concerned about the state’s business environment than hot-button social issues that move the conservative base ― called Patrick’s bill a “contrived” answer to a “manufactured” problem, and kept the bill from coming up for debate in his chamber. With one week left to go before the Texas legislature closes down its regular session, the proposal seemed ready to die.
But last week Patrick, who presides over the state Senate, threatened to block must-pass legislation if some version of the bathroom restrictions didn’t pass. That move would force the legislature into a special session, where Patrick would have more leverage to pass a further-reaching bill along the lines originally approved by the state Senate.
The compromise doesn’t go as far as the bill that passed the Texas Senate in March. It only applies to K-12 schools, rather than all public buildings, and it doesn’t overturn non-discrimination ordinances passed by local governments.
But it makes it so that if students don’t want to use facilities designated for the sex they were assigned at birth, they must be able to access another facility. And if that facility is multi-occupancy, the student can only use it when no one else is there.
“The idea that it is less offensive, all those things are relative,” said Cathryn Oakley, senior legislative counsel at the Human Rights Campaign. There is still a concern that the bill could have the effect of “forcing trans students to use restrooms that are separate from their peers,” she added.
Some 60 percent of transgender Americans say they have avoided using a public restroom out of fear of violence or confrontation, according to a survey published last year by the National Center for Transgender Equality. Some 32 percent of respondents said they’d limited food or drink in order to avoid a trip to a public bathroom.
As in North Carolina, the business community has been a major part of the backlash to Patrick’s efforts. The state hopes to avoid the public image disaster that threatened to cost North Carolina some $3.7 billion over 12 years, according to an estimate by the Associated Press. Two prominent groups published studies estimating that Texas would likewise lose billions due to boycotts, canceled sporting events and lost tourism if the legislature passed an anti-trans measure.
“Against all actual facts, Lt. Gov. Dan Patrick is hell-bent on making transgender kids into scary villains,” Jennifer C. Pizer, senior counsel and director of law and policy at Lambda Legal, said in a statement. “That’s not just wrong and abusive: it’s also begging to be sued. Didn’t he notice what happened in North Carolina?”
But now that the bill is set to pass the House, the only thing that could stop it is if Patrick decides the compromise isn’t harsh enough, Mark Jones, a political scientist at Rice University in Houston, told HuffPost. “I don’t think there’s any question the Senate will accept it,” he said. “The only question is whether Lt. Gov. Patrick considers this to be a ‘bathroom bill.’”