State bills targeting transgender bathroom access are floundering

Published 1:24 pm Saturday, February 25, 2017

Bills to curtail transgender people’s access to public restrooms are pending in about a dozen states, but even in conservative bastions such as Texas and Arkansas they may be doomed by high-powered opposition.

The bills have taken on a new significance this week following the decision by President Donald Trump’s administration to revoke an Obama-era federal directive instructing public schools to let transgender students use bathrooms and locker rooms of their chosen gender. Many conservative leaders hailed the assertions by top Trump appointees that the issue was best handled at the state and local level.

Yet at the state level, bills that would limit transgender bathroom access are floundering even though nearly all have surfaced in Republican-controlled legislatures that share common ground politically with Trump. In none of the states with pending bills does passage seem assured; there’s been vigorous opposition from business groups and a notable lack of support from several GOP governors.

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The chief reason, according to transgender-rights leaders, is the backlash that hit North Carolina after its legislature approved a bill in March 2016 requiring transgender people to use public restrooms that correspond to the sex on their birth certificates. Several major sports organizations shifted events away from North Carolina, and businesses such as PayPal decided not to expand in the state. In November, Republican Pat McCrory, who signed and defended the bill, became the only incumbent governor to lose in the general election.

“We don’t need that in Arkansas,” said that state’s GOP governor, Asa Hutchinson, earlier this month. “If there’s a North Carolina-type bill, then I want the Legislature not to pass it.”

North Carolina’s experience also has been evoked in Texas, where a “bathroom bill” known as Senate Bill 6 is being championed by GOP Lt. Gov. Dan Patrick, who founded the Legislature’s tea party caucus and oversees the state Senate. Business groups and LGBT-rights supporters have warned that passage of the North Carolina-style bill could cost Texas many millions of dollars, as well as the opportunity to host future pro sports championships.

Mark Jones, a political science professor at Rice University in Houston, assessed the bill’s chances of enactment as “effectively zero.” The measure might not even clear the Senate, he said, and would be “dead on arrival” if it reached the House of Representatives.

“The centrist conservative Republicans in the House, led by Speaker Joe Straus, view SB 6 as an unwanted distraction,” Jones said.

In Virginia, South Dakota and Wyoming, bills targeting transgender people already have died this year for lack of high-level support. The South Dakota bill, opposed by GOP Gov. Dennis Daugaard, would have required public school students to use the locker rooms and shower rooms matching their gender at birth.

In several other states, such as Kansas and Kentucky, bathroom bills remain alive but are gaining little traction. Kentucky’s GOP Gov. Matt Bevin, though a staunch social conservative, has dismissed the proposal as unnecessary government intrusion.

“Is there anyone you know in Kentucky who has trouble going to the bathroom?” he asked.

In Tennessee, two lawmakers promoting a bathroom bill abruptly ended a news conference last week when it was interrupted by protesters, one wearing a T-shirt reading, “You can pee next to me.”

Major Tennessee businesses have joined forces to oppose the bill. And on Thursday, Lt. Gov. Randy McNally said the bill was no longer needed because of the Trump administration’s decision to revoke the directive on transgender students’ rights.

There’s a bathroom bill pending in Missouri, where an identical proposal didn’t even receive a hearing last year. Wisconsin’s GOP-controlled Legislature also rejected a bathroom bill last session; its sponsor promises to bring it back this year even though GOP leaders have not made it a priority.

Other states with pending bathroom bills, according to the National Conference of State Legislatures, include Alabama, Illinois, Minnesota, New York, South Carolina and Washington.

When these types of bills advance to public hearings, the sessions can be emotional. Samantha DeMichieli, a 13-year-old transgender girl in Missouri, started crying when she told lawmakers this week about being bullied; she said the prospect of using a different bathroom was “horrifying.”

Attorney Gary McCaleb of Alliance Defending Freedom, which supports the push for bathroom bills, said politicians need to hear the testimony of students with the contrasting views, such as girls who feel “embarrassment and humiliation” for sharing bathrooms with transgender schoolmates.

As for the Republican leaders who don’t embrace the bills, McCaleb suggested they were succumbing to pressure from the business community.

Looking ahead, McCaleb said it was difficult to predict if any of this year’s bathroom bills would pass.

“It’s tough to know,” he said. “There’s a lot of moving pieces.”

National LGBT-rights groups are closely monitoring the fluctuations, recalling how North Carolina politicians took activists by surprise last year when they passed the divisive bathroom bill in a fast-paced special session.

“That experience makes us very wary about when and how legislation will move,” said Sarah Warbelow, legal director of the Human Rights Campaign. “On the other hand, the American public has been incredibly vocal against these bills… so we’re hopeful that legislators have learned a lesson from North Carolina.”

Even if all the new bathroom bills fail, Warbelow said activists will continue to push for explicit and effective federal protections for transgender students — protections have been undercut by this week’s revocation of the Obama-era guidance.

“Students deserve clear concrete protections at the federal level that they can rely on no matter where they go in this country,” Warbelow said. “The idea of turning civil rights over to the states is outrageous — you’ll have decisions made school district by school district.”

For activists on both sides of the issue, the debate has symbolic and political importance that transcends the presence of transgender students in U.S. schools. According to the Williams Institute at the UCLA School of Law, about 150,000 young people in the U.S. — 0.7 percent of those between the ages of 13 and 17 — identify as transgender.