Why this Texas Conservative Opposes the Bathroom Bill

Heath Mayo
Jul 27, 2017 · 12 min read

I recently voiced some of my concerns with Senate Bill 6 (“SB 6”), known colloquially by close watchers of the Texas legislature as either the “Bathroom Bill” or the “Texas Privacy Act,” depending on one’s frame of reference. My points were immediately rebuffed by friends affiliated with Empower Texans and a few other hard-line conservatives with whom I agree on many other issues (see my Twitter feed if you’re interested). Among other things, the rigor of my thinking was questioned, my conservative ideology was called into doubt, and my welcome in the state that I love was even withdrawn. This from supposed teammates! So, I decided to put in writing — in full detail — each argument that, I believe, obviates the need for SB 6 and makes the bill a fool’s errand for fellow conservatives in Texas.

[Note: The text of SB 6 did not make it out of Regular Session. HB 2899 is the current version of the bill, which incorporates only the pre-emption element of SB 6. Still, many conservatives in Texas support the thrust of SB 6 and lament having to weaken the bill. I address primarily those complaints and the original text of SB 6 here.]

First, what does the bill do and how does it work?

The central mandate of SB 6 lies in Section 769.101, which states:

“A political subdivision or state agency with control over multiple-occupancy bathrooms or changing facilities in a building owned or leased by this state or the political subdivision, as applicable, shall develop a policy requiring each multiple-occupancy bathroom or changing facility located in the building to be designated for and used only by persons of the same biological sex.” (emphasis added)

Section 769.051 applies this same mandate to public school districts and open-enrollment charter schools. So, essentially, school districts, counties, and municipalities must not only have a boys’ room and a girls’ room — but also ensure that only biological men and women, as determined by their birth certificate or other form of acceptable identification, enter their respective restrooms.

Okay, so what happens if a school fails to do this — if biological males or transgendered women enter the women’s bathroom or vis versa? And, more importantly, how do we find out? Section 769.151 subjects violators to civil penalties — “$1,000 to $1,500 for the first violation, and not less than $10,000 for subsequent violations.” In order for those penalties to kick in, SB 6 gives Texans the right to police schools by filing an individual complaint. “A citizen of this state may file a complaint with the attorney general that a [governed entity] is in violation of this chapter,” which then allows the attorney general to initiate an investigation into the allegation and ultimately file a lawsuit to levy the penalty and secure compliance through mandamus or injunctive relief. Sections 769.153 and .154.

So, in short, Texans who spot men going into women’s bathrooms or vis versa can file a written complaint with the attorney general’s office which can then result in an investigation and lawsuit for civil damages.

The bill was initially crafted as a response to a 2016 guidance letter from President Obama’s Justice Department requiring schools to make accommodations for transgender students. SB 6 purports to preempt that guidance by preventing school districts and other governed entities from enacting a policy that would affirmatively endorse the idea that biologically male students might enter a women’s restroom, or vis versa. But, the Trump Administration rescinded that guidance in February of this year — so this rationale underscoring the supposed urgent need of the legislation no longer has much force.

Note, though, that SB 6 does more than merely prohibit affirmative policies that condone cross-gender bathroom pollination. It requires governed entities to ensure that boys enter the boys’ room and girls enter the girls’ room. This is a key distinction to keep in mind.

Now that we have a sense of what the bill actually says — I’ll turn to some of my concerns.

How would governed entities comply, in practice?

For those who believe in a gender binary, the motivating principle of SB 6 seems sensible enough. After all, boys should not be entering the little girls’ room. “Do you want boys claiming to be girls going into the bathroom with your little daughter?” This has been the chief rallying cry of SB 6’s proponents and, without considering SB 6’s implementation, the premise seems sound.

But, let’s consider how all of this policy plays out in practice. Since time immemorial, Texas bathrooms have been designated male and female and folks have been using their respective restrooms without the Texas legislature looking over their backs. During this time, it is probably the case that a perverted male with illegal intentions entered a women’s room to either assault someone or improperly peep. But, how would this legislation do anything to prevent those types of actors from carrying out their assaults? If we don’t believe gun control laws will stop murderers from committing acts of violence, why do conservatives insist that bathroom control laws will stop perverts from committing acts of sexual assault? The answer, to me, is not readily apparent.

If we don’t believe gun control laws will stop murderers from committing acts of violence, why do conservatives insist that bathroom control laws will stop perverts from committing acts of sexual assault? The answer, to me, is not readily apparent.

The only way SB 6 could actually serve its stated intention is if every county, municipality, or school district subject to its mandate were made to enforce its terms. That is, the school would have to ensure that only biologically male boys enter the boys’ room and only biologically female girls enter the girls’ room. But, what would this entail? Would teachers have to check ID’s at the bathroom door? Would schools have to use taxpayer money to employ bathroom monitors? While these questions may seem facetious, I ask them seriously because none of SB 6’s proponents have yet provided an answer.

Even if enforcement were possible, is it worth the time and costs?

A savvy SB 6 proponent might respond: “Look, I don’t know how these entities will comply, but they’ll have to find a way to do so in order to avoid the civil penalties. That’s the purpose of legislation like this: to impose costs for allowing things that Texans don’t want.”

This argument implies that we should ensure compliance at all costs — that violations, however slight, are worth teachers’, administrators’, and other public servants’ time and attention. This is where there can be valid (although maybe not persuasive) disagreement among conservatives. I do not believe that the benefits of SB 6 — namely, the potential prevention or mitigation of sexual assaults or privacy violations — come close to outweighing the negative repercussions of the legislation. Let’s consider some of those negative repercussions now in no particular order.

1) The bill is a poor solution in search of a nonexistent problem.

If sexual assaults in restrooms were a rampant social phenomenon and an issue that law enforcement and school officials were repeatedly underscoring as a pressing problem, I would be the first to stand up in support of some form of this legislation (note: it would definitely look different and likely be more cost-effective than this version). The state should do all that it can to combat sexual assault and ensure the privacy and safety of Texans of all ages and genders. But, so far as it appears from the evidence that proponents have marshaled, that does not appear to be the case.

In fact, the lack of any instances of wrongdoing potentially preventable by legislation like this led South Carolina to dismiss an identical bill in their state while conservative Nikki Haley was governor. When the bill was raised in her state, Haley’s office said they had not received any complaints on the issue. “I don’t believe it’s necessary,” Haley told reporters. “There’s not one instance that I’m aware of. When we look at our situation, we’re not hearing of anybody’s religious liberties that are being violated, and we’re again not hearing any citizens that are being violated in terms of freedoms. Like it or not, South Carolina is doing really well when it comes to respect and when it comes to kindness and when it comes to acceptance. For people to imply it’s not, I beg to differ.”

I fail to see how Texas could have a bathroom problem that South Carolina lacks. I believe Texans are equally respectful and are capable of the same type of kindness and acceptance as South Carolinians.

I fail to see how Texas could have a bathroom problem that South Carolina lacks. I believe Texans are equally respectful and are capable of the same type of kindness and acceptance as South Carolinians.

Because I’m a conservative that believes government should be limited and not legislate or require spending unnecessarily on nonexistent problems, I oppose SB 6.

2) The bill represents an instance of big state government improperly interfering with local control.

Conservatives believe in Thomas Jefferson’s famous saying: “That government is best which is closest to the people.” After all, it’s the argument we deploy with devastating effectiveness against liberal edicts emanating from Washington, DC in favor of federalism and state control. But, we often overlook this concept when we have complete control of the statehouse in deeply conservative states. Just because we control the state legislature doesn’t mean that the virtues of local control are any less meaningful.

Why should Austin be dictating whether and how local school districts and police departments regulate bathroom use? Is it really the type of issue that belongs in Austin? To me, it seems like an issue more appropriate for local determination. After all, if someone is concerned that their local library doesn’t have a restroom that is private enough — isn’t their complaint better lodged with the local city council rather than the attorney general?

After all, if someone is concerned that their local library doesn’t have a restroom that is private enough — isn’t their complaint better lodged with the local city council rather than the attorney general?

Because I’m a conservative that believes in the virtues of local control, I oppose SB 6.

3) The bill distracts our public servants and their resources away from more important duties and forces them to focus on policing bathrooms instead.

Consider a school or a police department. They have responsibilities to teach, to protect, to serve, to ensure that our communities are safe and strong. They carry out these duties with activities that range from fighting crime in police vests and patrol cars to conducting science experiments in school labs. All of these things require people, time, and money.

But, schools and police departments also have bathrooms. And, if schools and police departments are suddenly made to enforce SB 6 under threat of civil penalty they will need to repurpose resources away from other meaningful activities to carry out SB 6’s mandate.

This reality recently led police chiefs from three of the five biggest cities in Texas to gather at the Texas Capitol in opposition to SB 6. “If a bill like this were to be passed that would pull police officers’ time away from combating violent crime into enforcing a bathroom bill, it makes communities less safe,” said Austin Police Chief Brian Manley. “It is time not spent ensuring community safety.”

Conservatives are all about the rule of law and public safety. To suggest that opposing SB 6 on these grounds is somehow not conservative is to selectively pick and prioritize the tenets of conservatism that support your view. Are SB 6 supporters anti-public safety? Probably not — and I’m not going to level this accusation against fellow conservatives who happen to disagree with me in order to bully them into my camp.

Because I believe in cost-effective public services, public safety, and the rule of law, I oppose SB 6.

4) The bill threatens to make Texas less hospitable to business and may cause the state to miss out on key economic growth opportunities.

There has been a lot of back-and-forth about the studies claiming to quantify the economic impact of SB 6 on the state of Texas. One study from the Texas Association of Business conducted by researchers at St. Edward’s University in Austin, found that SB 6 could result in “significant economic losses in Texas’ GDP, with estimates ranging from $964 million to $8.5 billion” and “significant job losses with estimates as high as 185,000 jobs.” It is important to note that PolitiFact did an independent review and found flaws in the quantitative methodology of the study, but did not dismiss the potential validity of its underlying findings.

Even if you don’t buy that study, other studies have found that similar legislation in North Carolina may cost the state millions of dollars in GDP and thousands of jobs. “No major companies have said they came to North Carolina because of HB2, so it certainly hasn’t helped on that front. And several have announced they stopped planned growth out of protest. The two most prominent were PayPal and Deutsche Bank, which canceled 400 new jobs in Charlotte and 250 new jobs in Cary, respectively.”

Companies in Texas, too, have already announced their opposition to SB 6 and noted the potential impact the bill might have on their future expansion choices. Recently, more than 80 businesses, including Dell, Silicon Labs, Apple, Facebook, and others, signed a letter to Governor Abbott underscoring their belief that SB 6 threatens Texas’s “ability to compete in the global economy and attract the top talent we need to keep our economy thriving.”

Other entities too, like the NBA, have expressed concerns about SB 6’s effect on the selection of host cities for the All Star Game and other large conventions. These types of events attract tons of tourist activity, business, and jobs to our state that SB 6 unnecessarily threatens.

Still, even if you are an SB 6 supporter that endeavors to poke holes in all of these claims, you still have to answer the question: why risk this type of fall out for a bill that is difficult to implement and only angers people?

Still, even if you are an SB 6 supporter that endeavors to poke holes in all of these claims, you still have to answer the question: why risk this type of fall out for a bill that is difficult to implement and only angers people?

Because I’m a conservative that believes that economic growth and job creation have the ability to lift the fortunes of all Texans, I oppose SB 6.

5) The bill unnecessarily wastes conservative political capital at a time when there are so many other important battles to be won.

This, I believe, should be the most convincing of arguments for die-hard supporters of SB 6. It is a near undisputed fact (if such a thing still exists) that SB 6 has become a lightning rod issue that has energized the liberal base in Texas, unnecessarily divided conservatives, and attracted national attention to the Texas legislature. This type of attention only intensifies opposition to SB 6, calls into question conservative priorities, and imperils other reforms that conservatives would like to see pass.

Because of SB 6’s presence on the Special Session call, things like school choice, school finance reform, and property tax relief become more difficult to get across the finish line. When the only option for opponents of the bill is to pass the Sunset bill and go home — they might just do it. This imperils the other 19 items that Governor Abbott has rightly called for action.

Because of SB 6’s presence on the Special Session call, things like school choice, school finance reform, and property tax relief become more difficult to get across the finish line. When the only option for opponents of the bill is to pass the Sunset bill and go home — they might just do it. This imperils the other 19 items that Governor Abbott has rightly called for action.

Because I’m a conservative that believes in the real importance and urgency of other needed reforms in Texas and want to see them passed, I oppose SB 6.

Conclusion

I am not under the illusion that my reasoning here will change the minds of my friends at Empower Texans or any of my other friends who deeply support SB 6. My purpose was more to dispel the notion developing in Texas Republican politics (and Republican politics nationally) that if two conservatives disagree, one must be a liberal. This tendency, if allowed to take root and fester, will destroy our Party and make conservative reform next to impossible.

My purpose was more to dispel the notion developing in Texas Republican politics (and Republican politics nationally) that if two conservatives disagree, one must be a liberal. This tendency, if allowed to take root and fester, will destroy our Party and make conservative reform next to impossible.

As conservatives, we have to stick together and stop drawing lines between ourselves when we disagree. We should debate issues in good faith and focus on substance rather than reductive labels. We should stop using legislative procedure to gum up the works and do more amending, voting, and passing of legislation pursuant to regular order (this applies to both moderates and hardliners that have at different times deployed this strategy to meet their own ends). Sometimes moderates may lose, sometimes hardliners may lose — but, ultimately, if we commit ourselves to the joint enterprise of working together in good faith, we will all win and actually move conservative reforms forward that can better our state and our country.

Texan | Yale Law | Brown U. | Bain & Co.

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