In January, Texas Lieutenant Governor Dan Patrick introduced Senate Bill 6 (SB6), another so-called "bathroom bill" aimed at preventing transgender Texans from using a bathroom consistent with their gender identity.
The bill itself is straightforward, with two primary effects. The first requires public schools, open-enrollment charter schools, and government buildings to require that bathrooms and changing rooms that are used by more than one person at a time be gender-segregated and used only by people whose "biological sex" is consistent with the labeled gender. The bill defines biological sex as the sex reflected on an individual's birth certificate. Bathrooms may only be entered by a person of the other sex (as defined by their birth certificate) for exceptions outlined in the bill, including custodial or maintenance work or if a person using the bathroom requires assistance. Banned from using typical public bathrooms with multiple stalls, transgender students or visitors to government buildings would have to hope the building provided special access to a single-stall bathroom, including such options as "controlled use of a faculty bathroom."
The bill's second action is to overturn local anti-discrimination ordinances that require businesses to allow customers to use bathrooms consistent with their gender identity. Several of Texas's largest cities have ordinances prohibiting discrimination on the basis of gender identity, including Austin, San Antonio, Dallas and Fort Worth.
Texas statutes provide that a birth certificate may be amended to "correct a record that is incomplete or proved by satisfactory evidence to be inaccurate." In order to change the identified sex on a birth certificate, an applicant must obtain a court order, which a state form [PDF] describes as justified by "gender reassignment surgery." Not all transgender people choose to undergo sex reassignment surgery, and typically the surgery would not be performed on a growing child, meaning that it would be very difficult for a school-age child to petition a court for an order to change his or her birth certificate to reflect his or her accurate gender identity. Anecdotal evidence confirms that a judge's willingness to issue such an order varies considerably based on his or her location within Texas, and whether the area is predominantly conservative or progressive.
Patrick introduced SB6 as a measure to counter guidance from the Department of Education telling schools that barring transgender students from using a bathroom consistent with their gender identity violated Title IX of the Education Amendments Act of 1972. Title IX prohibits discrimination based on sex, and in a May 2016 "Dear Colleague" letter the Department's Office of Civil Rights told school administrators that refusing to allow transgender students to use the bathroom consistent with their gender identity, including requiring such students to use a single-stall bathroom when cisgender students used multiple-stall bathrooms, constitutes sex-based discrimination.
After the inauguration of the Trump administration, however, and confirmation of new Secretary of Education Betsy DeVos, the Department of Education withdrew the Dear Colleague letter. Title IX's underlying statutory protection remains, but it appears that the Trump administration's Education Department will take the position that denying transgender students equal access to bathrooms is not sex discrimination.
SB6 quickly passed in the Texas Senate on largely partisan lines. One key justification for the bill offered in debate and the media was the safety of women and girls. This logic, which has been used in arguments over equal bathroom access for transgender students and people in many contexts, is that if transgender women are allowed to use women's bathrooms, then male predators will falsely claim to be transgender in order to legally gain access to women's bathrooms and assault or expose themselves to women and girls inside.
There is no evidence, however, that so-called "bathroom bills" have any effect on assaults committed by male predators falsely claiming to be transgender. A recent Vox article cited research by MediaMatters.org and PolitiFact showing that states with laws protecting transgender people from discrimination, including requiring bathroom access, had no increased crimes in bathrooms.
Moreover, examples of assaults that occurred in bathrooms often cited by proponents of bathroom bills did not happen in the wake of nondiscrimination provisions passed to protect transgender people. To the contrary, transgender people are far more likely to report violence directed at them in a bathroom.
There is thus no evidence that SB6 furthers one of the main policy goals offered to justify its passage. Instead, it exacerbates the severe negative experiences transgender youth have at school. One organization that works with transgender youth estimates that one or two students out of every 500 students is transgender. One national survey found that ninety percent of transgender students had heard [PDF] "derogatory remarks" about sexual orientation and gender identity while at school, often from school employees themselves. Knowing that bathrooms are often a flashpoint of harassment and even violence against transgender people, both transgender children and adults often try to avoid using them in public at all, leading to problems including chronic dehydration and bladder and kidney infections.
It is hard to imagine a more vulnerable population for legislators in Texas to target. In the absence of any rationally linked justification such as safety, it is particularly difficult to understand the law as backed by anything but animus. Indeed, the single Democratic State Senator who supported the bill explained his support in thinly-veiled prejudice against transgender children. That Senator, Eddie Lucio, Jr., argued that SB6 is "a bulwark against society's moral decline," preventing schools from "indoctrinat[ing] children in gender theories and other mature topics they may not comprehend."
This line of argument is familiar to scholars of the gay rights movement. Not even a full generation ago, LGBT people were characterized as indoctrinating and even recruiting children into lives of homosexuality. From this perspective, introducing homosexuality to children in the context of anything less than a full-throated condemnation would teach children that homosexuality was acceptable and make them more likely to be queer themselves. Lucio's argument makes the same logical leap: that allowing fellow students to use the bathroom consistent with their gender identity will teach children that gender is something different than two binary categories permanently enshrined at birth, and thus more children will identify as transgender.
Science, of course, tells us that such a black and white concept of gender is medically inaccurate. The Constitution and Supreme Court, moreover, tell us that such reasoning is impermissibly based in animus. SB6 lacks a rational relationship to the legitimate state interest of public safety, and its own supporters explain it as necessary to communicate moral disapproval of transgender Texans to children. This is the same prejudice repeatedly found to run afoul of the Constitution in cases such as Romer v. Evans and Lawrence v. Texas. In Romer, the Court struck down Amendment 2, a statewide ordinance prohibiting antidiscrimination ordinances protecting the LGBT people as inflicting "immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it." SB6 suffers from precisely the same unconstitutional deficiency. Should SB6 progress through the Texas legislature into law, it will become another embarrassing, costly and unconstitutional debacle to enter the history books alongside North Carolina's HB2.
Professor Dara Purvis is an Assistant Professor of Law at Penn State Law in University Park, PA. A former visiting fellow at the University of Kent Research Center for Law, Gender, and Sexuality, she has published numerous scholarly articles and books on these topics. She graduated from Yale Law School and clerked for two federal circuit court judges.
Suggested citation: Dara Purvis, Texas "Bathroom Bill" Offers up More of the Same False, Tired Anti-LGBT Arguments, JURIST — Academic Commentary, Apr. 17, 2017, http://jurist.org/forum/2017/04/Dara-Purvis-texas-bathroom-bill.php
This article was prepared for publication by Sean Merritt, an Assistant Editor for JURIST Commentary. Please direct any questions to him at email@example.com