There was something very peculiar about the proceedings of the Texas House Sunday night, even amid a session that has scored high in casual cruelty and procedural dishonesty. In short, the chamber acceded to a small-but-significant part of Lieutenant Governor Dan Patrick’s proposed transgender bathroom law, as part of what seems to have been a deal to pass a budget and end Patrick’s threat of precipitating a special session, causing an indefinite extension of the Great Potty Crisis of 2017.
House leadership took a bill designed to bolster public schools’ ability to plan for threats — mass shootings, terrorist attacks, etc. — and tacked on a provision that would prohibit transgender students from using facilities associated with their gender identity, offering them private changing facilities and single-stall bathrooms instead.
It’s true both that the bill will have negative consequences for vulnerable kids, and that it’s a lot better than the measures Dan Patrick proposed at the start of the session. That’s mostly what the Legislature does these days: The mitigation of ideological harm. In a post-vote statement, House Speaker Joe Straus expressed his hope that the bathroom amendment would allow “schools to continue to handle sensitive issues as they have been handling them.”
Straus’ statement also relates that Greg Abbott made clear that he would add bathroom policy to the agenda of any special session. If that’s true, the hand of the House Republican Caucus was forced. Patrick has loudly vowed to force the Legislature into a special session over his property tax bill, Senate Bill 2, and his bathroom bill, Senate Bill 6. If Abbott, whose Wikipedia page alleges that he is the Governor of Texas, was willing to help Patrick make that happen, it seems clear that whatever bathroom legislation would emerge from a special session would be significantly worse than the measure the House passed Sunday night. So, the Straus statement concludes, “the House decided to dispose of the issue in this way.” We’ll see if that holds.
But that’s just the unfortunate logic of this most recent battle. The bathroom wars, which began at the state Republican convention last year, have contained many such clashes that, cumulatively, led to where we are now. Looking at all of them together, and at the wider endgame between the two chambers this session, the only honest conclusion is that Patrick has won a significant and one-sided victory.
To be clear, he hasn’t won in terms of policy. The House’s final measures to appease Patrick are not, so far, close to what he wanted. The new property tax bill the House passed doesn’t contain a key provision he wanted. The budget includes a plan to use money from the Rainy Day Fund, which he opposes. And if Patrick’s concern about protecting women in public bathrooms from crossdressing marauders was genuine, the House bathroom amendment does nothing to address it. He has recently expressed discomfort with how little he’s gotten from the bargain, and may keep pushing further.
His victory has been a political one. His success at controlling the narrative has been remarkable, a noticeable difference from last session. In Patrick’s first stint as lieutenant governor, the two chambers came to a muddy agreement on their biggest fight, a tax cut bill. Patrick failed to move several of his flagship red-meat bills, like repealing the Texas Dream Act, through his own Senate. The House killed many of his other priority bills and the governor refused to be drawn out in public. In hindsight, it seems like the big three — Patrick, Abbott, and Straus — were still sussing each other out.
This year, Patrick’s Senate has been a machine, churning out his bills on his schedule. Not a single surprising or interesting thing has happened on the upper chamber’s floor all session, apart from the sergeant-at-arms yelling at staffers and reporters for walking too quickly. Abbott, perhaps because of genuine belief or perhaps because of his fear of the right wing of the party, has aligned much more closely with Patrick — from his list of emergency items at the beginning of session to the final inter-chamber tango. That makes it harder for House Republicans to chart their own course.
But more importantly, Patrick has been the one placing the goalposts all session. He’s shaped every debate with his increasingly loud voice and firm grip on the Senate, starting with his first press conference of the session, the subject of which was SB 6. At the time, Patrick seemed exceptionally unlikely to pass the kind of law he wanted. And he hasn’t, yet. So why waste so much time?
Patrick and his allies, particularly the sword-waving Steve Hotze, undoubtedly believe in the bathroom bill as policy. But the issue has also served as an effective distraction. The monomaniacal focus on potty talk, and the oxygen it’s sucked from the session, has helped to scatter the various interests who oppose Patrick on other measures. Take Texas business groups. The sanctuary cities bill, with its show-your-papers component, is awful policy for them — but the prospect of a North Carolina-style meltdown caused by SB 6 is even worse. It’s a nightmare scenario for big business, one they ended up spending a great deal of money, time and effort trying to evade.
The central dynamic in Texas politics right now is that the leader of the right half of the Republican Party is an entertainer and former radio talk show host. Patrick is exceptionally good at controlling how the story gets told, and he has a podium to match, because he has power. There is no counterbalance to that in the party’s slightly more moderate half, and Democrats have a tiny voice, because they have no power. Patrick pulls, and everyone else reacts.
This is how state government works in Texas: The price of passing a budget and shielding cities from a mildly harmful property tax restriction is that the lower chamber has to let the lieutenant governor humiliate at-risk pre-teens. That’s now how things are done, apparently, in a lawmaking body that holds jurisdiction over 28 million people and an economy the size of Brazil’s.
On Sunday, when it came time for the dirty deed to be done, it was hard not to get the impression that many Republican members of the House felt bad, an impression that also could be had on the night that Senate Bill 4 passed. And they should feel bad. They were like members of parliament of a militarily defeated nation, calling for “peace with honor” even though most every one of them knows there’s no honor in it, and less dignity.
Families with transgender kids, watching from the gallery, were treated to an unforgettable show. Representative Senfronia Thompson kicked off the debate with an extraordinary speech remembering that Barbara Jordan was unable to use most of the facilities in the Capitol when she took her seat in the state Senate. Then Representative Chris Paddie took the mic to present the amendment. He seemed flustered.
Over the course of the night, Republicans did their best to convince themselves that the amendment was a compassionate “anti-bullying” measure. This went to comic lengths. One rep asked if the bill’s provisions would allow “a child with a colostomy bag” to request special changing facilities, like the ones trans children will now use. The answer was yes.
It fell to Representative Celia Israel, one of the few LGBT members of the Legislature, to state the obvious truth. “It seems to me the budget agreement was done with this in mind,” she said. “We are being rolled by the Senate, and trans children are part of that bargain.” The House did get rolled. But the state did, too.
At last, at least, insh’allah, knock on wood, the bathroom wars may be over — unless Patrick decides otherwise. Except, next session, it’ll be some other fake crisis. That’s the way we work now: Bad-faith threat, bad-faith rhetoric, bad-faith negotiations and a bad-faith settlement. The best we can hope for is that next time, they pick a less vulnerable scapegoat.
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