Political showdown over bathrooms has been years in the making

Well before the current legislative standoff over public accommodations for transgender Texans, the political elements of the "bathroom bill" fight were falling into place. 

Gov. Greg Abbott, Lt. Gov. Dan Patrick and Speaker of the House Joe Straus on the dais in the House chamber for a joint session memorializing the nation's veterans, on May 27, 2017.

Bob Daemmrich for The Texas Tribune

Last Sunday, on the 132nd day of a 140-day session, Gov. Greg Abbott and Lt. Gov. Dan Patrick briefly escaped the hectic legislative home stretch in Austin to visit a church in the deeply conservative Houston suburb of The Woodlands. 

Grace Church's Steve Riggle was one of five pastors who had been subpoenaed in the 2014 fight over the Houston Equal Rights Ordinance, a galvanizing moment for social conservatives in Houston and beyond. It only made sense for Abbott and Patrick to return to Riggle's altar to ceremonially sign a bill that would shield sermons from future subpoenas.

Abbott addressed the congregation first, giving by all accounts a well-received, muscular speech laying out the need for the legislation, Senate Bill 24. 

Then it was Patrick's turn.

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The lieutenant governor had barely commented on SB 24 before turning his attention to a more pressing matter: his crusade to pass a "bathroom bill" that would regulate which restrooms transgender Texans can use.

"Last week I had a press conference and I said, 'We're going to get this done or we're going to stay,'" Patrick said, with Abbott — the only person who has the power to call lawmakers back for a special session — seated behind him. "And I'm willing to stay as long and until the place we're staying in freezes over."

Looking back, the scene illustrated so much about the current state of Texas politics: There was the hard-charging lieutenant governor speaking with an authority beyond his current office, alongside an often supportive but less aggressive ally in the governor. Missing from the stage entirely: a House speaker who tends to position himself on the sidelines for most red-meat issues.

But perhaps most importantly, the scene that unfolded on that Sunday morning showed that the current legislative turmoil that simmered in the background all session before exploding front and center Friday evening has roots in political forces that far predate the current session, which ends Monday.

"I guess if you go back 18, 20 months ago, I didn’t feel like maybe this was going to be such an issue for this 85th Legislature," said state Rep. Matt Krause. "But then you had the HERO ordinance and then you had what happened with Fort Worth ISD and then you had a couple of local events that shot it to the forefront of the political landscape." 

Given all that, the Fort Worth Republican added, "I felt like we were going to do something on those issues" this session.

Snowball effect

Before there was Houston, there was San Antonio. In 2013, the San Antonio City Council voted to adopt a sweeping anti-discrimination law that had created a statewide political firestorm, drawing fierce opposition from both Abbott, then the attorney general running for governor, and Patrick, who was a state senator vying for lieutenant governor. 

"This kind of became a snowball effect really beginning as early as San Antonio, which occurred before Houston,"  recalled Dave Welch, the president of the Texas Pastor Council, which has pushed lawmakers this year to pass a statewide "bathroom bill." "When that ordinance was proposed in San Antonio, it was kind of a shock factor in realizing what was going on." 

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In fact, other major cities in Texas had had similar nondiscrimination ordinances in place for years. For at least a decade, Dallas, Austin and Fort Worth have had comprehensive ordinances offering LGBT residents some degree of protection against discrimination in employment, housing and public areas like restaurants and the bathrooms inside them.

Still, the San Antonio controversy ended up looking small compared to the battle over the Houston Equal Rights Ordinance. Shortly after the city council approved HERO in 2014, opponents began collecting signatures to put the issue on the ballot. 

HERO opponents used much of the same unfounded rhetoric that Patrick is now deploying in the bathroom bill debate. "NO Men in Women's Bathrooms," read signs at polling places. A group called the Campaign for Houston ran TV ads showing a little girl being cornered by an older man in a bathroom stall. 

Then-President Barack Obama and then-Democratic presidential frontrunner Hillary Clinton jumped into the fray in the final days, urging support for HERO, but it was too little, too late. On Nov. 3, 2015, Houston voters rejected HERO by over 20 points, delivering a crushing loss to the LGBT rights movement in Texas and giving Patrick what would become his clearest subtext yet to pursue the issue on the statewide level.

Abbott had urged voters to kill the ordinance in a tweet hours before polls opened, but it was Patrick who emerged as the statewide official most closely tied to its defeat. He had even tapped his campaign coffers to air a TV spot in which he urged a no vote, and as results rolled in on election night, he was ready for the cameras at the Campaign for Houston's party. 

"It's just common sense and common decency — we don't want men in women's, ladies' rooms," a riled-up Patrick told reporters. "I don't normally get involved in local races — we spent a lot of money, as you know, on local television because we had to take a stand with others to help tell people what this was really about." 

A statewide crusade

With same-sex marriage decided in the courts, LGBT advocates in Texas expressed fear that a HERO defeat could hand opponents momentum to turn back or hold off other civil rights advances for their community.

“If they can win here and overturn an ordinance, what does that mean for the rest of Texas?” Lou Weaver of Equality Texas asked at the time. “Would they go systematically across and try to take away what San Antonio has accomplished? What Fort Worth, Plano, El Paso have accomplished? Would they move across the South?”

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Emboldened by the HERO defeat, social conservatives began setting their sights on other cities that were considering such ordinances or already had them on the books. They had a receptive audience in the first-term lieutenant governor.

On May 9, 2016, Patrick found his next fight.

Even to those following the statewide aftermath of the HERO defeat, the news release arrived seemingly out of the blue: Patrick was calling for the resignation of Fort Worth school district superintendent Kent Scribner for “unilaterally adopting Transgender Student Guidelines.” The debate over the district’s policies had been largely a local issue until it began drawing attention among conservative activists statewide — and Patrick was on top of it, traveling the next day to the district to challenge Scribner in his backyard.

Protesters at a press conference held by Texas Lt. Gov. Dan Patrick in May, 2016 calling on Fort Worth Independent School District Superintendent Kent Scribner to resign over the district's bathroom guidelines for transgender students.
Protesters at a press conference held by Texas Lt. Gov. Dan Patrick in May, 2016 calling on Fort Worth Independent School District Superintendent Kent Scribner to resign over the district's bathroom guidelines for transgender students. Laura Buckman for The Texas Tribune

Patrick’s crusade got a major boost days later, when the Obama administration issued a directive instructing every school district in the country to let transgender students use the bathroom that corresponds with their gender identity. Word of the directive got out in the middle of the Texas GOP convention in Dallas, where Patrick had already been making the media rounds highlighting his showdown with Scribner. 

"He says he's going to withhold funding if schools do not follow the policy," Patrick said of Obama during a hastily arranged news conference at the Kay Bailey Hutchison Convention Center. "Well, in Texas, he can keep his 30 pieces of silver. We will not be blackmailed by the president of the United States." 

While Patrick was pushing harder on the issue, Abbott and his office offered a more measured approach. The governor was critical of Scribner but did not go as far to say he should step down. In the previous month, when Patrick had started suggesting that the state may need a bathroom bill, an Abbott spokesman simply said the governor has “always sought to protect family values in Texas, and he looks forward to continuing that work in the 85th legislative session." 

And at the GOP convention, where the issue burned white hot, Abbott waded more deeply into the debate, telling delegates he is “working with the governor of North Carolina, and we are going to fight back.” Yet he still lagged Patrick’s zeal for the cause — Abbott gave it five sentences in a half-hour speech at the convention — and Patrick’s “blackmail” moment remained the dominant memory for many who were in Dallas that weekend.

If it was not a statewide issue before, it was one now.

Waiting for Abbott

By the time lawmakers set their sights back on Austin for the legislative session in January, Patrick — fresh off a successful campaign season as Texas chairman for Donald Trump’s presidential bid — led the way forward on making bathroom guidelines the issue that would largely dominate the next 20 weeks.

In early January, he unveiled Senate Bill 6, a North Carolina-like measure to regulate bathroom use in governments buildings and public schools based on “biological sex” — which would keep transgender Texans from using bathrooms that match their gender identity — and to nix local nondiscrimination policies meant to allow transgender Texas to use the bathroom of their choice.

The proposal drew fierce backlash from the business community, which worried that such a proposal was discriminatory and could lead to the economic demise that roiled North Carolina after it passed its own "bathroom bill." Backed by LGBT rights advocates, business groups started off a long campaign against any bathroom regulations that could further stigmatize transgender Texans, an already vulnerable group with little political clout.

Patrick relied, in part, on the HERO fight and Obama’s guidelines in articulating why the state needed a law to regulate bathroom use. When Trump, a few weeks later, rescinded Obama’s guidelines, Patrick doubled down on the issue, seemingly emboldened by the administration’s stated interest in leaving the issue of bathroom regulations to states.

All the while, Abbott remained largely silent even after suggesting in January that the fate of the Obama guidance under Trump could factor into whether he’d support or oppose a “bathroom bill.”

Instead, it was Straus — long considered a business-friendly moderate — who emerged as a de facto keeper of the business community’s concerns. After indicating early on that Patrick’s bathroom proposal was not his “most urgent concern,” Straus in a speech to the Texas Association of Business largely echoed the group’s qualms about the economic fallout that could follow the passage of a “bathroom bill.”

“There’s been a lot of work put into our state’s economic success," Straus said in what, at the time, amounted to his most dour remarks on Patrick’s proposal. "We want to continue that success, and we want Texas to keep attracting the best and the brightest. One way to maintain our edge is to send the right signals about who we are."

Straus' words would only become more direct and disparaging as the session wore on. He went onto say he wasn’t “a fan of the bill” and eventually come out in clear opposition to the proposal, calling it “manufactured and unnecessary.”

In fact, Abbott was so apprehensive about speaking out on the issue that even Straus goaded him to weigh in, saying his opinion could make a “big difference.” He would later chide the governor’s silence when asked about it months later by responding: “Well, I never give up on anyone.”

Abbott’s remarks on the proposal early on were limited to his blasting of the NFL for raising the prospect that the “bathroom bill” could impact future events in the state. But when he was asked by reporters if this meant he was supporting SB 6, Abbott demurred.

"A thoughtful proposal"

It wasn’t until mid-April — with SB 6 effectively bottled up in the House by Straus — that Abbott directly entered the legislative debate, weighing into what had come to encapsulate broader differences between Patrick and Straus and how they managed their respective chambers. In a statement, Abbott called House Bill 2899, what was emerging as a House alternative to SB 6, a “thoughtful proposal.”

Abbott’s comments on Republican state Rep. Ron Simmons' bill, which would have invalidated local trans-inclusive policies and school accommodations for transgender students, came just a day before a House panel held an overnight hearing on it after months of the lower chamber offering no movement on the issue.

But by then, House leadership was positioned to also keep Simmons' proposal from reaching the floor for a vote, much to the dismay some of the chamber’s most conservative members, many of whom had signed on as co-authors to the legislation. Eventually, 80 House members would sign onto the legislation, which Patrick later used to argue for House action on the measure.

After months of taking little definitive action on the issue, Abbott recently endorsed bathroom legislation as one of his legislative priorities and, according to Straus, made clear “he would demand action on this in a special session.” This prompted the speaker to reluctantly move on a proposed compromise to the issue.

Last Sunday — on the same day Abbott and Patrick appeared together in a church in suburban Houston — the House amended Senate Bill 2078 with language that would require school districts to provide single-occupancy bathrooms, locker rooms and changing facilities for students who don’t want to use the ones associated with their “biological sex.” School groups said the language was open to interpretation and could possibly allow schools to maintain policies that accommodate transgender students beyond single-occupancy facilities with a few tweaks.

Patrick was defiant in his reaction to the House vote, saying the proposal didn't do much to regulate bathroom use and pushing for a conference committee on the bill to strike a deal that was closer to his chamber's SB 6.

But Straus on Friday refused to budge. He made the point clear by calling a rare press conference during which he said the House was declining to appoint members to negotiate a compromise version of the measure. He once again echoed the concerns of the business community but also said more importantly that the state needed to "protect the safety of some very vulnerable young Texans.”

“For many of us — and especially for me — this was a compromise,” Straus said. “As far as I’m concerned, it was enough. We will go no further."

Patrick responded with his own hastily called event on the other side of the Capitol, flanked by roughly a dozen Republican senators.

“He said he has compromised enough, but in fact, he has not compromised at all,” Patrick said of Straus.

Absent a last-minute deal, Abbott could now be on the verge of his most politically difficult decision since he became governor two years ago. Does he bow to Patrick’s pressure by calling a special session and potentially alienate the business community, or reject the lieutenant governor's demands and potentially upset the Republican primary electorate? Abbott is up for re-election next year and, so far, has appeared to be a safe bet, though Capitol hallways continue to reverberate with speculation Patrick could primary him — speculation the lieutenant governor has vigorously denied. 

"This is worst-case scenario for Abbott," said Mark Jones, a political science professor at Rice University. "Whatever side he took was going to alienate a key constituency." 

Some bathroom bill supporters wonder how things would have unfolded if Abbott had weighed in earlier. Though they acknowledge Straus was always going to be an obstacle, making a leadership showdown likely, the dynamics of it may have turned out differently.

“Anytime the governor speaks, it moves the needle,” Krause said.

But still, some Republicans have sought to give Abbott some cover — while also gently applying pressure. 

"If we go to a special session, it’s not going to be because of the governor,” said state Rep. Jeff Leach, R-Plano. "The governor will be doing the right and the bold thing if and when he calls us back. It will not be his fault if we end up in a special session."

Abbott's predecessor, Rick Perry, was no stranger to special sessions, calling lawmakers back to Austin a dozen times during his 14-year tenure. Ray Sullivan, Perry's chief of staff from 2009-2011, said special sessions give the governor the unique ability to set and control the agenda, but at the end of the day, it is usually "best for everyone to finish their work in a regular session."  

Special sessions "generally don’t accrue to anyone’s political benefit unless it’s something absolutely critical to voters that they finally pass and finish up," Sullivan said, warning that special sessions "can be risky in that the members are tired, feelings can be raw, the spotlight can be very intense."

But Abbott's governing style strays significantly from that of Perry's commandeering approach. Since his election, Abbott has proven to be conflict-averse, often playing his cards close to the vest when issues catch fire at the Capitol.

With his boisterous campaign for bathroom regulations, a campaign that started well over a year before the current session began, Patrick has effectively put Abbott in a box with two possible exit strategies, both of which appear to come with serious political repercussions.

Further complicating matters for Abbott is that he will now effectively have to choose between Patrick and Straus, wading into a personality clash that he has strived until now to stay out of. On Friday — even with Patrick and Straus deadlocked on the issue — Abbott once again demurred on the policy fight and instead said there was still time for a final compromise.

But Patrick is no doubt making it difficult for Abbott to side against him. As they shared Steve Riggle’s altar a week ago, Patrick lavished a higher-than-usual amount of praise on Abbott, saying they’re “in lockstep on issue after issue after issue.” He did his usual comparison of Texas’ economy to that of Russia then added: “They have Putin. I’ve got Abbott."

Five days later, Patrick’s jovial demeanor was gone as he stared down a speaker standing in the way of a moment social conservatives have been working toward for years. But Straus wasn't his only target.

"Tonight, I’m making it very clear, governor," Patrick said. "I want you to call us back on your time."

Disclosure: Rice University and the Texas Association of Business have been financial supporters of The Texas TribuneA complete list of Tribune donors and sponsors can be viewed here.