by Lauren McGaughy
Transgender public school students will not be barred from restrooms that match their gender identity under a new version of the “bathroom bill” the Texas House approved late Sunday, multiple sources told The Dallas Morning News.
Senate Bill 2078 would require schools to provide a private bathroom for public school students who do not want to use the multi-occupancy restroom that matches the biological sex on their birth certificates. But the bill would not require transgender kids to use that single-stall bathroom if they don’t want to, two education groups and multiple lawmakers familiar with the legislation told The News.
The bill also does not prohibit transgender students from using the public, multi-use bathrooms that match their gender identity. In short, while the measure was billed as a provision to restrict bathroom use for transgender students, it seems to do nothing of the sort.
Not everyone agrees with this interpretation, but consensus is growing. Democrats said the bill is softer than previous versions, and Republicans on the far right were upset it wasn’t as stringent as they’d hoped.
“It’s a big nothing burger,” said Rep. Jonathan Stickland, R-Bedford.
“It requires the provision of the facility. But it doesn’t take the next step that the district require any particular person use any particular facility,” said Joy Baskin, director of legal services at the Texas Association of School Boards. “In our understanding, the language is open-ended in that regard, and it will rely on the district’s discretion.”
The Texas Association of School Administrators said the bathroom bill “codifies what many districts are already doing.”
Baskin said the association believes that school districts that are already allowing transgender students to use the bathroom that matches their gender identity won’t have to reverse course. Neither will schools be required to “out” transgender students, because another provision in the bill bars the sharing of confidential student information.
The Texas House officially approved the bill Monday, with nearly every Republican voting in favor. The Senate needs to agree to the changes the House made to the bill, including the bathroom language, before Gov. Greg Abbott can sign it into law.
It’s unclear whether Lt. Gov. Dan Patrick, who leads the Senate and has been the most vocal proponent for a strict bathroom bill, will agree to the changes. On Monday, he issued a statement saying he had not seen the bathroom language before it was voted on: “I also have concerns about its ambiguous language, which doesn’t appear to do much.”
Patrick has said he would demand a special legislative session if the bathroom bill is not passed in the current legislative session, which ends May 29. Only Abbott can call such a session. On Monday afternoon, his spokesman, John Wittman, issued the following statement.
“Governor Abbott’s hope is that the House and the Senate will agree on a measure that, at a minimum, protects the privacy of students in locker rooms and restrooms, and he will continue to work with members of both chambers to achieve that goal.”
Sunday night, Speaker Joe Straus seemed to foreshadow Patrick’s concern, saying the measure wouldn’t change the way schools are already tackling the issue: “[Rep. Chris] Paddie’s amendment will allow schools to continue to handle sensitive issues as they have been handling them.”
Monty Exter, lobbyist with the Association of Texas Professional Educators, agreed the bill does not appear to bar transgender children from using multi-use bathrooms that match their gender identity. But he said the intent of the bill is still troublesome.
“It is absolutely an abrogation of local control,” said Exter. “It definitely still politicizes the issue for all school districts.”
Paddie, the Marshall Republican who pushed the bathroom bill language, disagreed that the bill doesn’t do much.
“If you have a child whose biological sex is female, they would not be able to go into the boy’s restroom,” Paddie told The News on Monday, adding that he trusts school districts are already accommodating children. “We want them to continue to do that in a lawful way, in a reasonable way.
Rep. Joe Moody, D-El Paso, said lawmakers should take Paddie at his word about the bill’s intent. But he said a plain reading of the bill looked like it was contradictory.
“This amendment seems to require providing options. It perhaps doesn’t go far enough to say the use is restricted,” said Moody. While the bill doesn’t require schools to restrict bathroom use by transgender children, he worries it could allow school districts to discriminate against these students if they wish. “My hope is no one will utilize this in a nefarious way.”
Plano Rep. Jeff Leach of the self-styled Texas Freedom Caucus, a far-right conservative group in the House, said he trusts Abbott and Patrick to make a decision on whether to call the Legislature back into session for more discussion on the bathroom bill.
“I’m concerned that there’s confusion and ambiguity,” he said. “At the end of the day, the court is going to tell us what it means.”
Moody agreed the language will likely end up being litigated: “We think reasonable minds are going to differ.” That court challenge might come from a group like Lambda Legal, the national LGBT nonprofit law firm that threatened to sue Texas if legislators “succeed in forcing discrimination into Texas law.”
Paul Castillo, senior attorney for Lambda Legal, said they’re ready to speak with any transgender students who believe their privacy or safety is being infringed and to be a legal resource for the Texas LGBT community. Regardless of the effect of the legislation, he insisted the intent is still to target transgender boys and girls in Texas public schools.
“What the bill does, in practice, is it singles out and stigmatizes transgender kids,” Castillo said.
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