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Senate votes again to advance "bathroom bill"

The Texas Senate backed a bill that would bar some transgender people from using bathrooms that match their gender identity in schools and buildings overseen by local governments. The bill would also nix parts of local nondiscrimination ordinances.

State Sen. Lois Kolkhorst, R-Brenham, talked with fellow Sen. Paul Bettencourt, R-Houston, during the Senate discussion of Senate Bill 3 on July 25, 2017.

Editor's note: This story has been updated throughout.

As part of Republican efforts to revive the controversial "bathroom bill," the Texas Senate on Tuesday gave approval to another version of the legislation directly affecting transgender Texans.

The 21-10 vote came after an eight-hour debate during which Republicans once again espoused the need to pass the legislation for the sake of privacy in bathrooms, while Democrats objected to its passage because of its discriminatory effect on an already vulnerable population. (Update July 26: At just after midnight on Wednesday, the Senate voted 21-10 to formally pass the bill. It now goes to the House for consideration.)

Senate Bill 3 by state Sen. Lois Kolkhorst would regulate bathroom use in schools and buildings overseen by local governments, including cities and counties, based on the sex listed on a person’s birth certificate or other IDs issued by the Texas Department of Public Safety.

The inclusion of those IDs was a significant change made to the legislation during Tuesday's debate. While it's helpful for some transgender adults who have been unable to change their birth certificates, but have been able to update their IDs, it will probably do little to enable transgender children to use school bathrooms that match their gender identity.

The legislation would also nix parts of local nondiscrimination ordinances meant to allow transgender residents to use public bathrooms of their choice.

"I offer SB 3 … as a solution for Texas,” Kolkhorst, R-Brenham, said in presenting her bill to the upper chamber, arguing it would set a statewide policy on bathrooms and offer guidance to school districts.

“It will hit the reset button and provide the privacy and safety that Texans expect,” she added.

Democrats suggested the bill’s language was actually a relic of the past. They described wording in the original bill that prohibited the creation of policies to protect “a class of person from discrimination” as language the Legislature hasn’t considered since the Jim Crow era.

“The bill you filed affirmatively allows discrimination. It says you can’t protect from discrimination,” state Sen. Kirk Watson, D-Austin, told Kolkhorst.

“I’m thinking about how staggering it is that in 2017, the state Senate has to fix a bill on the floor that allows for discrimination — expressly allows — and prohibits protection of discrimination,” Watson added, referencing an amendment by Kolkhorst to reword a significant portion of the legislation and cut that language.

For hours, Democrats echoed arguments made during 10 hours of public testimony last week and earlier this year, when the divisive issue first dominated the regular legislative session. The bill stalled out in the spring following a stalemate between Lt. Gov. Dan Patrick and House Speaker Joe Straus over the issue.

Democrats asked whether their colleagues were legislating discrimination against transgender people, who already face high rates of suicide. They raised questions about the proposal’s constitutionality. They asked about the potential millions of dollars in economic losses cities could face because of event cancellations over concerns about discriminatory policies. And they questioned the lack of support from the law enforcement community for a policy proponents say is meant to dissuade sexual predators from committing crimes in bathrooms — a point for which they’ve provided little evidence.

For hours, Kolkhorst and other Republicans offered rebuttals similar to those they’ve expressed for months.

Kolkhorst rejected the idea that the legislation is discriminatory. She responded that legal questions surrounding the legislation would play out in the courts. She brushed off economic concerns by saying she valued “daughters over dollars.” And she dismissed law enforcement’s opposition to the legislation by insisting that the bill "shuts down the opportunity for predators and voyeurs to assault women by exploiting this proposed lack of gender boundaries."

The chamber’s position on the issue was unchanged; the vote was identical to the Senate’s March vote on a similar proposal. But the Senate did make several changes to the legislation.

Unlike the Senate’s proposal from the regular session, the current bill would not regulate bathroom use in state buildings and public universities or impose civil penalties for entities that violate the bathroom restrictions. But it was revised to touch on participation in athletic activities.

That line on the bill opened up efforts by Watson to derail its consideration. He argued that SB 3 went beyond the scope of the special session agenda set forth by Gov. Greg Abbott.

“Everyone in this room did not leave common sense at home this morning,” Watson said, pointing out that Abbott’s list calls for legislation regarding the use of bathrooms, locker rooms and changing facilities — but not extracurricular athletic activities.

He was eventually overruled by Patrick, but not before consideration of the bill was delayed by almost two hours.

Other changes to the bill included an exception to bathroom policies for stadiums, convention centers and other government-owned venues if they are leased to a private entity. The chamber also granted an exception in cases where someone is receiving assistance in the bathroom because of their age or disability.

But the Senate's Republican majority also rejected a flurry of amendments offered by Democrats, including an amendment to exempt transgender people from the regulations, an amendment to increase penalties for attacks on transgender people and an amendment to track economic losses brought on by the restrictions.

The vote came just days after hundreds of Texans — the majority of them opposing the legislation — signed up to testify during a marathon committee hearing. While that testimony did little to sway the Senate’s Republicans, it did result in the amendment that added DPS-issued IDs, which includes handgun licenses but not school IDs.

Despite the lengthy debate, it's still unclear how transgender people would be expected to navigate the proposed bathroom restrictions, which would require transgender men, women and children to use bathrooms designated for people who may not physically resemble them.

Pressed by state Sen. John Whitmire, D-Houston, for a solution to that “horrible situation,” Kolkhorst responded that the bill “refers back to your birth certificate."

“I suspect that they would do whatever is necessary for themselves,” she added.

Democrats closed the debate by arguing that Republicans would ultimately do exactly what they hoped to prevent: Put men and boys in restrooms designated for women and girls.

“Because trans boys are boys and trans girls are girls,” state Sen. Sylvia Garcia, D-Houston, said.

The bill now goes to the House, where it's likely to face an icy reception by Straus, a staunch opponent of such legislation. 

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