School groups say House bathroom amendment open to interpretations

Republicans behind a Texas House measure addressing bathroom use by transgender students said they wanted to provide “definitive guidance” to school districts on an issue that’s rattled through the current legislative session since before it was gaveled in.

In offering up an amendment to Senate Bill 2078, Republican state Rep. Chris Paddie of Marshall explained that the proposal would require students to use bathrooms, locker rooms and changing facilities based on their biological sex. If a student “does not wish” to use a facility based on that designation, school districts would have to accommodate them by offering a single-occupancy facility, he added.

But the language of the amendment approved Sunday by House lawmakers amid threats of legislative overtime over a “bathroom bill” has instead left school groups with lingering questions about whether the legislation would actually keep school districts from allowing transgender students to use bathrooms that correspond with their gender identity.

“I think it’s going to depend on how people interpret the amendment,” said Dax Gonzalez, assistant director of governmental relations for the Texas Association of School Boards, which represents the state's school districts and provides guidance to them on policies related to transgender students.

Under Paddie’s interpretation, the amendment would nix existing trans-inclusive policies at some school districts that allow transgender students to use the bathroom of their choice at school. (Some Texas school districts allow transgender students to use the bathroom that matches their gender identity through formal policies or on a case-by-case basis.)

But the school board association, which endorsed the measure on Sunday night, argues school districts could probably maintain such policies, possibly with a few tweaks, because of the measure’s “flexibility.”

“I think what it boils down to is that this amendment is pretty flexible and open to interpretation,” Gonzalez added.

House members on Monday officially sent SB 2078 with the bathroom-related amendment to the Senate, where the bill’s author, state Sen. Larry Taylor, R-Friendswood, will have to decide whether to sign off on the House’s changes to the bill, which focuses on school districts’ “multihazard emergency operations plans.”

Looming over that decision is whether Lt. Gov. Dan Patrick, the presiding officer of the Senate, will be in consensus. Patrick — who has long championed Senate Bill 6, the “bathroom bill” from Republican state Sen. Lois Kolkhorst — had threatened to push for a special session if the Legislature didn’t pass that proposal or a measure with language from House Bill 2899 by state Rep. Ron Simmons, R-Carrollton, which died after failing to clear a legislative calendar deadline.

On Monday, Patrick said in a statement that he had concerns about Paddie’s amendment because of “ambiguous language, which doesn’t appear to do much.” Taking cues from the lieutenant governor, social conservatives and religious groups also came out against the amendment, saying it didn’t go far enough.

Earlier in the day, Paddie indicated the language of the amendment was carefully crafted to “not be overly descriptive” and avoid tying school officials’ hands "too much.” But Paddie doubled down on his claim that the amendment would limit access to bathroom use in public schools based on biological sex. A transgender student could still use a multi-occupancy bathroom or changing facility that matches the gender with which he or she identifies if no one else is in there, Paddie added.

Those arguments helped him obtain support from a vast majority of House Republicans in last-minute vote on the bathroom proposal that came after months of political sparring over the need for such legislation.

Calling the Senate's bathroom legislation “manufactured and unnecessary,” House Speaker Joe Straus for months stymied SB 6 by refusing to refer it to a committee, and a similar House bill stalled in committee.

After the Sunday vote, Straus suggested the Paddie amendment would not require schools to make significant modifications to how they “handle sensitive issues.”

School groups agree because providing single-stall facilities for students seeking bathroom-related accommodations is something school districts “would do anyway,” so the amendment doesn’t make a “significant change” on that front, said Jennifer Canaday, governmental relations director for the Association of Texas Professional Educators.

When it comes to the amendment’s possible effects on efforts to accommodate transgender students beyond single-occupancy bathrooms, Canaday echoed the school board association in saying there was “enough ambiguity” in the amendment to allow for different interpretations by school districts.

But she indicated that the school group — which deemed bathroom-related legislation “a solution in search of a problem” — was still sifting through any possible repercussions for trans-inclusive policies in place across the state.

“Obviously there’s some confusion,” she said. “It may take some time [to figure out] how school districts interpret this.”

Read related Tribune coverage:

• After threatening to force a special session of the Legislature unless lawmakers approve a "bathroom bill" and property tax legislation, Lt. Gov Dan Patrick appeared to be unconvinced by the House's actions on the two issues.
• Amid threats of a special legislative session over the “bathroom bill,” the Texas House on Sunday took a last-minute vote to approve a proposal addressing bathroom use by transgender students.
• Pro-business forces, which had for months warned that a "bathroom bill" could be disastrous for the state's bottom line, held their fire during Sunday's debate over a bill amendment dealing with the controversial issue.

Disclosure: The Texas Association of School Boards and the Association of Texas Professional Educators have been  financial supporters of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.