Analysis: On Transgender Texans And Bathrooms, A Call To Stay Calm

Some Texas lawmakers were in a hurry to require transgender Texans to use the restrooms that match the genders listed on their birth certificates. But the policy and politics are complicated enough to prompt the governor to tap the brakes.

by Ross Ramsey

Gov. Greg Abbott wants lawmakers to take a bathroom break, and you can’t blame him for trying to find relief.

The next legislative session hasn’t even started and regulation of which restrooms transgender Texans use is getting the kind of attention usually reserved for taxes and immigration.

Abbott told reporters last week that he wants to wait and see what lawmakers come up with before he’ll take a position. At a forum last month, House Speaker Joe Straus downplayed the issue in a different way, saying it’s not “the most urgent concern of mine.”

If those two officials sounded mild to untrained ears, they were perfectly clear to those with political antennae. Their intended audience knows that this issue is not on the fast track some in their party want it to be on.

A slowdown might turn the bathroom fight to the back burner. Republicans attribute it to a directive from the federal Department of Education on how school districts should deal with the needs of transgender students.

Abbott doesn’t like the federal directive and tweeted his support for the state’s challenge to it early last summer.

But he is unwilling, at this point, to endorse legislative efforts to remedy the situation. The policy questions around facilities and transgender people are complicated and the politics are gnarly.

Lt. Gov. Dan Patrick and others believe Texans should only be allowed to use public restrooms and other facilities that match their sex assigned at birth — not their gender identities.

On a practical level, state lawmakers would need to figure out how to enforce the law, how to make it non-discriminatory, whether it addresses any undesired activities that are not already illegal under lewdness or assault statutes, and what facilities should be included if this does go into state law.

It also would make decidedly awkward situations out of potty breaks that are hardly noticed now, forcing transgender Texans who appear in their manner and clothing to be women to use men’s bathrooms — and vice-versa.

The political perils are substantial, which might explain the governor’s caution. In surveys like the University of Texas/Texas Tribune Poll, Republican voters overwhelmingly support using sex at birth as the guide for which restrooms to use. Patrick has cited his own polling in speeches, saying Texans of every stripe agree with his position on the issue.

But politicians also listen closely to the business community, and the sentiment with many businesses and their trade groups is that this kind of legislation is discriminatory. The Texas Association of Business has geared up to fight what it sees as discriminatory legislation, sponsoring a study that concluded such laws could cost the state dearly in both jobs and economic activity.

North Carolina’s experience lends substance to that threat. That state passed a broader law that included the bathroom regulations, prompting several companies and sporting events to take their business elsewhere. And Republican Gov. Pat McCrory’s reelection loss in November was blamed by some on his positions on LGBT rights.

Conservatives still like the law in theory, but they’re well aware they could be punished if they fumble.

It’s always possible that the incoming Republican administration in Washington will retract that initial federal directive and remove the declared reason for state action — the kind of bureaucratic “never mind” that could ease the political pressure for new laws.

If those two officials sounded mild to untrained ears, they were perfectly clear to those with political antennae. Their intended audience knows that this issue is not on the fast track some in their party want it to be on.
The courts might take care of that for them. A federal judge in Texas already put the federal rules on hold, saying the feds didn’t jump through the right hoops when putting the regulation into effect. The Obama administration is appealing that ruling.

It is already clear that the drum major at the front of this particular parade in Texas — Patrick — is trying different variations of a transgender bathroom bill to find an acceptable option. Sen.-elect Dawn Buckingham, R-Lake Travis, said earlier this month that “my understanding is the businesses, the sporting venues, will not be affected by this law” — i.e. the bill could be limited to schools and other public buildings.

That might solve some problems. But the North Carolina law was aimed only at public buildings and still ran into opposition from businesses and from sports groups like the NCAA and the NBA.

They were protesting against what they saw as discrimination in North Carolina — and the black eye they thought it gave the state.

That kind of information, still coming in as the debate simmers, has created enough uncertainty to slow things down. The governor said as much. “I have not seen any proposed legislation yet,” Abbott told reporters. “I think we are in a situation where there are more unknowns than there are knowns.”

Disclosure: The Texas Association of Business has been a financial supporter of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.

This article originally appeared in The Texas Tribune.