Analysis: Playing chicken with the “bathroom bill” in the Texas Legislature

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Can you dare a cautious governor to lead?

Texas is in the process of finding out.

Lt. Gov. Dan Patrick has staked some of his political capital on what is now universally known as the “bathroom bill” — legislation that would regulate transgender Texans’ choices of which facilities to use in public buildings and overturn related local laws. Patrick is trying to pull together enough votes in the Senate to send that bill to the House.

The reception in the House has been frosty. Speaker Joe Straus said in front of an audience that the bill is not “the most urgent concern of mine.” He then told a state group and a San Antonio business group that they need to lobby against it if they want to stop it. Notably, he called out Gov. Greg Abbott, saying it would be helpful to legislators to hear what the state's chief executive thinks about this one.

That's a bit of political witchcraft: The House stands poised to vote, but not without a puff of white or black smoke from the jefe's office. The Senate’s leader, who has been campaigning loudly on the bathroom bill for the better part of the past year, is trying to sell senators of his own party on the idea.

A word from Abbott might make the governor unwelcome either to business or social conservatives, but it would make an easy vote of a hard issue for members of the Legislature.

The speaker’s throw-down also protects House members from a tough vote. The bathroom bill is a risky piece of politics.

Voters seem, according to some polling, to be for it, although it’s not clear that the issue has been a subject of debate for long enough for people to know the practical ins and outs of what the bill might do. Knowing more might not change anything, but the relative newness of the issue puts an asterisk on the poll results.

Many businesses are lining up against it, though the Texas Association of Business took a hit this week when Politifact judged the association’s study of potential economic damage to be flaky. It was enough to make the media-maligning Patrick break form — he held a news conference touting that particular report from the mainstream media and repeating his assertion that the law would have no economic effect.

Of more concern to legislators are the hundreds of businesses who signed a “Texas Competes” pledge in support of “workplaces and communities that are diverse and welcoming for lesbian, gay, bisexual, and transgender people.” Lawmakers are also looking over their shoulders at North Carolina, where laws that include restroom regulations have prompted cancellations of corporate expansions and sporting events. The NCAA is threatening to ban that state from holding any of its sports championships for six years, according to the N.C. Sports Association.

Two high officials of the Episcopal Church of the United States — Presiding Bishop Michael Curry and the Rev. Gay Clark Jennings, president of the House of Deputies — chimed in, too, writing a letter to Straus supporting opposition to the proposed law and suggesting they might hold their 2018 general convention somewhere other than Austin if the bill passes.

A word from Abbott might make the governor unwelcome either to business or social conservatives, but it would make an easy vote of a hard issue for members of the Legislature.

“As you are no doubt aware, this is not the first time that the segregation of bathrooms and public facilities has been used to stigmatize minority groups,” they wrote. “‘Bathroom bills,’ as they are sometimes called, were passed during the Jim Crow era, and the bogus rationale advanced then is the same bogus rationale being advanced now: the safety of women and children who are no way under threat.” 

The Texas Senate will move as soon as Patrick has the votes. Some around the Capitol are hyperventilating about his prospects, but it’s early in the session and lieutenant governors have toolboxes full of enticements and threats. That said, if the Senate can’t pass the bill, this conversation ends there.

The House doesn’t have to do anything until the Senate bill arrives, and it doesn’t appear to be under any pressure to do anything at all. They can point to the governor, saying they don’t want to take a vote without his guidance on an issue that divides conservative donors and voters.

That’s the setup: Unless Abbott is willing to take the political heat for a Texas bathroom law, this bill is dead.

More columns from Ross Ramsey:

• A reinterpretation of the state's school finance law will leave $100 million in the accounts of some of the state's property wealthy districts — and will leave a hole of that size in an already tight state budget.

• Most states have dropped straight-ticket voting, but not Texas. There's another attempt coming in the current legislative session, and it's got some high-level supporters.
• The Texas Legislature is primed to go, but this is going to be a session outside the limelight. The Texans are busy, but the spotlight is on the new administration in Washington, D.C.

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.