Texas Senate Passes Controversial Bathroom Bill

Sen. Whitmire holds up a photo of a transgender boy who would be forced into the girls' room at school.
Sen. Whitmire holds up a photo of a transgender boy who would be forced into the girls' room at school. Screenshot/Texas Legislature livestream
Sen. Whitmire holds up a photo of a transgender boy who would be forced into the girls' room at school. - SCREENSHOT/TEXAS LEGISLATURE LIVESTREAM
Sen. Whitmire holds up a photo of a transgender boy who would be forced into the girls' room at school.
Screenshot/Texas Legislature livestream
The ever-divisive bathroom bill soared through the Texas Senate Tuesday, passing on a 21-10 vote, and will head to the House.

The bill, which seeks to regulate bathroom and locker room use in government buildings and schools based on biological sex, would force transgender women to use the men's room and transgender men, ironically enough, to use the women's. Put more plainly, fully transitioned transgender men who may have penises would be relegated to women's showers because there is an "F" on their birth certificate.

Democratic senators attempted to press Sen. Lois Kolkhorst, the author of the bill, on some of these unintended consequences, both on the already-vulnerable transgender community and any possible economic fallout, Senator Joe Urnesti said. Urnesti noted that he is already aware of three conventions passing over San Antonio because of the mere existence of the bill — a $3.1 million impact — and worried that the NCAA would pull out of San Antonio for the Final Four next year if it passes, as the NCAA chose to do in North Carolina.

But mostly, senators grilled Kolkhorst on some of the discriminatory problems the bill presents for transgender Texans. Sen. John Whitmire offered Houston municipal judge, Phyllis Frye, the first openly transgender judge in the country, as a prime example of a person whose intimate life on the most basic of levels would be unfairly damaged. Since Judge Frye works in a government building, then she would be required to use the men's room with the very men possibly appearing before her in court. Here's Whitmire's exchange with Kolkhorst:

"Your legislation would force a long-time female-dressing, gender-identity woman into a male restroom, and we can't have that," Whitmire said. "What do we do?"

"Nothing is easy about this: When you were born, you were assigned a sex based on your genitalia. In America, at least in Texas, we allow people to change their gender on their birth certificate — those protections are there. I do not have an easy answer for you. During their transition of when they choose to go to the men's restroom or the women's restroom, because it's very difficult during that time when they're internalizing their gender and where they find themselves, these decisions are never easy. And I'm sensitive to that."

"I understand how complex it is — and I understand how difficult it is to give an answer there," Whitmire responded. "Because quite frankly, I don't think there is an acceptable answer to how we make a feminine, long-time transgender woman, or a young person, go into that men's restroom."

Kolkhorst leaned heavily on a public-safety argument as to why her bill was necessary. The fear, she said, is of "those who might in some way use a vague idea of gender identification to go into a private, delicate space and do harm." A.K.A.: Men pretending to be women would go into a restroom to assault girls and women. Kolkhorst gave various examples of men trying to sexually assault or take pictures of females in bathrooms — mostly at private businesses, which are exempt from the bill anyway — but she conceded that none had used the excuse that they believed they were a woman as to why they were in the restroom.

Whitmire noted that the bathroom bill, formally titled the Texas Privacy Act, was not at all necessary in order to prosecute those men and send them to prison. Kolkhorst held steadfast to the belief that it somehow would have stopped those predators from going into the bathroom to begin with.

Which brings up the other side of this bill: How will it actually be enforced? Democratic Houston Sen. Sylvia Garcia asked when exactly people's birth certificates are going to be checked. Of course, there are no "bathroom police" (at least not yet), and even if people born with penises do enter a women's restroom, there is no consequence for that specific person. A Good Samaritan would have to go out of his or her way to file a complaint with the Texas Attorney General's Office, which would then have to investigate whether a person born male really did enter the women's room, which could then possibly fine the city or school district if it had created a policy to allow this to happen.

"If your intention was to keep men out of a women's bathroom, which I think everybody in this entire dome today would agree with, then why did you make it so complicated?" Garcia asked. "This is complicated, with all due respect, senator, because you made it complicated."

"It is complicated," Kolkhorst responded.

"It's not. You could just say, 'men should not go to women's bathrooms. Women should not go to men's bathrooms. Plain and simple. Even the children visiting today would be able to understand that."
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Meagan Flynn is a staff writer at the Houston Press who, despite covering criminal justice and other political squabbles in Harris County, drinks only one small cup of coffee per day.
Contact: Meagan Flynn