House lawmakers hear overnight testimony on alternative "bathroom bill"

Amid concerns about rolling back local protections for vulnerable Texans and dire economic fallout, a panel of House lawmakers considered a measure into the early hours of Thursday morning that some are hoping will serve as an alternative approach to regulating bathroom use for transgender Texans.

But if the large majority of testimony against the measure serves as any indication, the House proposal will likely continue to face fierce opposition from LGBT advocates and the Texas business community.

Setting aside a more restrictive Senate proposal, the House State Affairs Committee took up House Bill 2899 by Republican state Rep. Ron Simmons of Carrollton. As expected, Simmons revised his original bill in committee to narrow its scope to banning municipalities and school districts from enacting or enforcing trans-inclusive bathroom policies.

"This issue needs to be the same in Austin as it in Abilene. It needs to be the same in Houston as it is in Hutto," Simmons told the committee."What we’re saying is this needs to be handled at the state level."

Though it marked the House’s first public discussion on bathroom policies for transgender Texans, lawmakers on the committee asked no questions of Simmons and instead opened up hours of emotional public testimony — a majority of which was in opposition to Simmons' proposal.

House members heard from transgender Texans and their parents who recounted the complicated landscape they’re already left to navigate when it comes to using public bathrooms and pleaded with lawmakers to not further complicate those decisions or open them up to additional scrutiny and discrimination.

“It’s often easier to hold it and not go into the bathroom than deal with the anxiety that comes with using a public restroom,” Parker Radbourne, a transgender man from San Antonio, told the committee.

Just before 2 a.m., Frank and Rachel Gonzales of Dallas begged lawmakers not to get in the way of the support and accommodations that their 7-year-old transgender daughter Libby — asleep in her father's arms — had obtained at her school.

"Many, many families, including my own, are counting on you to keep our children safe," Rachel Gonzales said. "Please do not let us down."

Ellen Owens, a transgender woman who is a high school teacher, explained how she checks for local discrimination protections before traveling to a new city. She said she finds it a comfort to be protected by local policies in her hometown.

“When I go to school I want to be concerned with the growth and learning of my students, not which of the two bathrooms immediately across the hall from my classroom I want to use, or if I can try to calculate if I can run up two flights of stairs to the single-person bathroom in the other side of the building and back down in the five minutes of passing period,” Owens said.

Those local policies — and the possibility that they could be invalidated under HB 2899 — were among the chief concerns presented by tourism officials and local elected officials.

Unlike the upper chamber’s Senate Bill 6, Simmons’ proposal does not regulate bathroom use in government buildings, public schools and universities based on “biological sex.” And it doesn’t include a general prohibition on municipalities adopting or enforcing local bathroom regulations.

Instead, the language in 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 because Simmons’ proposal applies to classes of people that aren’t already protected in federal or state law, opponents said it could go further than just pulling back those protections for transgender residents and extend to protections enacted by some of the state’s biggest cities to cover residents based on age, sexual orientation and veteran status.

While Simmons denied that his legislation would have that effect, El Paso County Commissioner David Stout warned the committee that the bill could in fact undo protections for classes of people covered by expanded local policies.

“Currently, federal law does not provide for protection from discrimination on the basis of veteran status, familial status, marital status, sexual orientation or gender identity, and this bill puts all of those classes of people in danger but especially our constituents in the LGBTQ community,” Stout told the committee.

He was just one of several local officials representing the state's most populous areas, including Austin, Dallas, Houston and San Antonio, who signed up to testify against the legislation. They echoed Stout's concerns about the potential impact on local efforts that have expanded protections for LGBT Texans and the economic repercussions they could be left to deal with.

“Unfortunately, the perception of discrimination is out of our hands,” said Ashley Harris, director of industry and government relations for Visit San Antonio.

She cited a report that showed that 41 percent of meeting planners say they’ll avoid cities with bathroom bill-like policies and that San Antonio would stand to lose millions of dollars to cancellations.

“We believe that HB 2899 could cause disruption and damage to our state’s reputation and economy,” Phillip Jones, CEO of Visit Dallas, told lawmakers. He also disclosed that tourism officials in the state had “talked to the NCAA, the NFL and the NBA and they've told us, ‘Please do what you can to make sure legislation like they had in North Carolina doesn’t pass in Texas.’”

Hoping to offer another alternative that businesses could get behind, Jones recommended that lawmakers could instead increase criminal penalties for crimes that occur in bathrooms — language that was originally in the Senate’s proposal but was later stripped out.

Responding to concerns about imposing on the state’s ability to recruit businesses and workers, Republican state Rep. Byron Cook of Corsicana — the chair of the committee who largely controls the bill's fate — repeatedly told opponents of the bill that the major corporations who oppose the legislation should have shown up to testify.

"Them weighing in would probably have a profound effect on what we're doing," Cook said. He later added: “Not being here is a mistake. Whatever we do, we've got to do it right, and they should be part of this.”

Among the half-dozen supporters of the bill who testified were pastors and representatives for various churches who called for a “uniform standard” when it comes to local policies that regulate bathrooms and define gender identity.

“We believe in equal protection. This is creating unequal protection,” said David Welch of the Texas Pastor Council.

Cook proceeded to press Welch on the lack of evidence that transgender people were behind criminal incidents or attacks in bathrooms.

"I've never seen that community present any problem," he told one witness.

Instead, Cook's concerns seemed to focus on the use of changing facilities and locker rooms in schools.

“That is a legitimate concern, that we have to recognize there are people that are generally concerned about that issue,” Cook said. “I’m trying to imagine forcing a student into an uncomfortable situation ... I’m trying to reconcile that in my mind.”

The House committee considered Simmons’ proposal even as SB 6 has languished. Though it cleared the Senate last month, House Speaker Joe Straus — who opposes the Senate proposal — has yet to refer it to a House committee, a necessary step before a hearing on the bill can be scheduled.

It remains unclear how far the Simmons proposal will go in the House. The bill was left pending in committee on Thursday morning without a vote.

But it did garner a positive review from Gov. Greg Abbott, who had largely remained silent on the issue. On Tuesday, Abbott called the House bill a “thoughtful proposal” and made clear he would work with both chambers to sign legislation on the issue into law.

Following Abbott’s statement on the proposal, a spokesman for Straus said the speaker’s position on the issue “has not changed.”

Related Tribune 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.