Texas House to wade into debate over bathroom regulations

After largely avoiding discussions so far on proposals to regulate bathrooms, the Texas House will wade into the debate this week with a measure some are hoping will serve as an alternative to the Senate’s “bathroom bill.”

Setting aside the Senate’s proposal, the House State Affairs Committee on Wednesday will take up House Bill 2899, which will be revised during the hearing to ban municipalities and school districts from enacting or enforcing local policies that regulate bathroom use.

That would invalidate local trans-inclusive bathroom policies, including anti-discrimination ordinances meant to allow transgender people access to public bathrooms based on gender identity and some school policies meant to accommodate transgender students.

“We believe that those issues should be handled at the state level, and if there is an issue that exists in the state that people need to come to the Capitol, they need to convince 76 representatives, 16 senators and one governor of what the policy needs to be,” said state Rep. Ron Simmons, R-Carrollton, who authored the bill. “Until then, it’s my opinion, we don’t need to change.”

Simmons' proposal is joining Senate Bill 6 in a fierce debate this session that has drawn intense opposition from LGBT advocates and business groups as well as concerns from sporting organizations including the NCAA and the NFL.

Unlike Senate Bill 6 — a legislative priority for Lt. Gov. Dan Patrick that passed out of the Texas Senate in March — Simmons’ proposal does not regulate bathroom use in government buildings and public schools and universities based on “biological sex.” And it strays from SB 6’s blanket prohibition on “political subdivisions” adopting or enforcing local bathroom regulations.

Instead, the language of Simmons’ proposal specifically focuses on discrimination protections. It reads: “Except in accordance with federal and state law, a political subdivision, including a public school district, may not enforce an order, ordinance, or other measure to protect a class of persons from discrimination to the extent that the order, ordinance, or other measure regulates access to multiple-occupancy restrooms, showers, or changing facilities.”

That would nullify parts of nondiscrimination ordinances in several Texas cities that have been in place for decades to protect certain classes of people from discrimination in public accommodations, including in the bathrooms inside businesses that serve the public. But Simmons’ proposal could go further than just pulling back those protections for transgender residents.

While Texas has no statewide public accommodation law, federal law protects people from discrimination in public accommodations based on “race, color religion or national origin.”

Some of Texas' biggest cities have expanded the public accommodation provision of local anti-discrimination laws to include protections based on age, sexual orientation and veteran status. But it appears Simmons’ proposal would outlaw those sorts of protections as applied to bathroom use because they go beyond federal protections.

Simmons’ focus on discrimination protections also differs from North Carolina’s law, which was recently revised amid public and economic backlash.

The North Carolina law was rewritten to no longer explicitly regulate which bathroom transgender people can use and instead more simply prohibits state agencies, municipalities and school boards from regulating multi-stall bathrooms — leaving bathroom regulations to the state.

That revisions remain unacceptable to LGBT advocates. And the Simmons proposal — which only bans local measures that protect certain groups from discrimination — is still a no-go for groups advocating for LGBT Texans. They suggested the Simmons measure is actually worse than the alternative that was recently signed off on in North Carolina because they believe it leaves open the door for local policies that target marginalized groups.

“I recognize there are members in the House that are looking for some sort of alternative to Senate Bill 6, but this proposed committee substitute is not acceptable in its current form,” said Chuck Smith, executive director of Equality Texas. “This proposal literally codifies discrimination in Texas law by forbidding enforcement of policies that would protect people by preventing them from ever implementing protections in the future and by allowing discriminatory provisions to be written in.”

It remains unclear how far the Simmons proposal will go in the House and whether it’ll pick up support from Speaker Joe Straus, who opposes the Senate's bill.

It does appear to appease Republican state Rep. Byron Cook, who set the bill for a public hearing and largely controls its fate in committee. Cook, who did not respond to requests for comment, had previously echoed Straus on the issue and said there was no evidence of “major safety issues” that would necessitate bathroom regulations.

The House is considering Simmons’ measure even as SB 6, which cleared the Senate last month, sits idly in the lower chamber. Straus has yet to refer SB 6 to committee, much to the ire of some of the most conservative members of the House who have been unsuccessful in their attempts to tack the Senate’s proposal onto other legislation in an effort to force a vote on the issue.

The hearing on HB 2899 could temporarily placate some of those House members, particularly the members of the socially conservative Texas Freedom Caucus, but they weren’t overly enthusiastic about the Simmons proposal.

“We are glad to see there is movement on the larger issue and we look forward to seeing the language of the bill as it comes out of committee,” said Republican state Rep. Matt Schaefer of Tyler, who heads the caucus.

State Rep. Matt Shaheen, R-Plano, who filed his own alternative to the Senate’s proposal, said it was important to him that the House “tackle” the issue this session but stopped short of endorsing Simmons’ measure.

“Across the board, it’s inappropriate for local governments to be telling people where to go to the bathroom,” Shaheen said. “I support the state stopping local governments from telling people where to go to the bathroom.”

Amid continuing concerns about negative economic impact that could come from any “bathroom bill” becoming law in Texas, the business and tourism groups that have been among the most vocal opponents of SB 6 haven’t rushed to endorse Simmons’ proposal as an acceptable alternative.

The Texas Association of Business is still “looking at the bill” but remains “committed to stopping discriminatory legislation and keeping Texas open for business,” said Chris Wallace, the group’s president.

Tourism officials who have predicted bathroom-related legislation could cost them at least $407 million in revenue from upcoming events haven’t weighed in on the proposal.

But for months they’ve pointed to a wave of cancellations of events and business expansions in North Carolina following the passage of its original bathroom law as reasons to oppose similar legislation in Texas.

Still, Simmons says he hopes his bill is considered a business-friendly approach to the issue.

“We just believe that it does strike a balance between providing needed protections in the most intimate areas that Texans go to while at the same time saying that we’re open for business as we always have been,” Simmons added.

Proponents of the Simmons proposal are also hoping that it won’t be shunned by sports leagues — many of which canceled events in North Carolina following the implementation of the first version of its bathroom law.

The amended version Simmons will present in committee on Wednesday likely “passes muster with all the governance bodies — the NCAA, the NFL — and all these people who had problems” with North Carolina’s original bill, said Bill Miller, a lobbyist for the Dallas Cowboys who will likely support the bill.

“The absolute goal was to make sure that it didn’t cross the line,” Miller said.

Read related coverage: 

• Here’s what the Texas Senate's "bathroom bill" means in plain English.
• Here's how the "bathroom bill" compares to North Carolina's revised law.
• After the Super Bowl, the NFL raised the prospect that a Texas “bathroom bill” becoming law could impact future championship football games.

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.