Bathroom Politics

Texas higher education officials have been mostly silent on a controversial piece of state legislation that would restrict bathroom use by transgender individuals on public campuses, even as the law could override existing policies and conflict with federal guidance.

The Texas legislation, introduced last week as Senate Bill 6, is similar to North Carolina’s widely protested “bathroom bill,” which, after it passed, prompted numerous organizations to pull events -- including academic gatherings and intercollegiate athletic competitions -- from that state. The Texas bill would require state agencies, including higher education agencies, to put policies in place restricting transgender people’s use of multiple-occupancy bathrooms and changing facilities except as consistent with their biological gender assigned at birth.

Use of such bathrooms and locker rooms would be restricted only to those whose sex listed on their birth certificate matched the sign on the bathroom door. Opponents argue that the law is unenforceable, that it feeds stigmatization of transgender individuals and that it could cause problems for those whose physical features and gender identities do not match the words on their birth certificate. The bill’s backers say it is a strike for “common decency” and public safety.

The Texas legislation is one of several such bathroom bills introduced in state legislatures. Legislation creating restrictions to restroom access based on biological sex or sex assigned at birth has been introduced in eight states in 2017, according to the National Conference of State Legislatures.

Yet the Texas bill is drawing more attention than others because it is considered most likely to pass -- Republicans control both houses of the state’s Legislature, and the state’s GOP lieutenant governor has made the bill’s passage a priority, arguing it is not about discrimination.

“The people of Texas elected us to stand up for common decency, common sense and public safety,” Lieutenant Governor Dan Patrick said in a statement when the bill was filed Jan. 5. “This legislation codifies what has been common practice in Texas and everywhere else forever -- that men and women should use separate, designated bathrooms. It is supported by an overwhelming majority of Texans including both Democrats and Republicans, Hispanics, African-Americans and Anglos, men and women.”

The position of lieutenant governor is more powerful in Texas than in many other states. Texas lieutenant governors are elected separately from governors. They also preside over the Senate, scheduling bills for consideration and appointing committee members and chairs.

The bill also has the potential to affect a notably large number of students in Texas, because the state has one of the biggest public higher education complexes in the country.

Groups are using a two-pronged approach to argue against the legislation and other bills they consider discriminatory: fighting on the basis of morality and of economics. On the economic side, many point to a study commissioned by the Texas Association of Business that found the state could lose as much as $8.5 billion in gross domestic product and as many as 185,000 jobs if the state passes pieces of legislation deemed discriminatory. On the morality side, they argue the bill is simply wrong.

“I would hope that most people would oppose this proposed legislation because it’s morally wrong,” said Chuck Smith, CEO of Equality Texas, a group that lobbies the state’s Legislature on lesbian, gay, bisexual and transgender issues. “For anyone [for whom] that’s not enough, we would suggest they need only look to the economic fallout and damage, as well as the brand damage, that can be caused and has been caused in multiple states that attempted to go down this road.”

Smith thinks the law could cause faculty members and students to leave public institutions in Texas. He added that the state has other legislation that could impact discrimination on campus, such as a proposal that he said would allow student organizations to use personal religious beliefs as a basis for not recognizing nondiscrimination policies on college campuses. The bills won’t be passed without a fight, though -- Smith anticipates opposition to the bathroom bill building and including students and faculty members who would be affected by the law.

“I think most students are still on their winter break or still would be returning,” he said. “I would expect that there will be advocacy and activism at the higher ed level in opposition to this bill.”

Backers say the bill would allow private businesses to set their own bathroom policies and that it contains important exceptions for private entities leasing or renting publicly owned buildings. They also say it contains exceptions for parents and caregivers who need to offer assistance in bathrooms. There are no special protections for higher ed, though -- in fact, it’s specifically called out as an affected state agency.

Texas residents have already started protesting the bill, including through online petitions and student groups. Yet the state’s public higher ed leaders haven’t said much.

Many system representatives declined comment, citing a state prohibition preventing them from lobbying for or against bills. One notable exception came at the campus level. University of Texas at Austin President Gregory L. Fenves is willing to discuss the bathroom bill’s possible affects, he said in a statement. That statement also addressed the argument that the bathroom bill would help prevent sexual assault.

“Preventing sexual assault is something we take very seriously,” Fenves said in the statement. “While we track reports of alleged assaults, to our knowledge we have never received a report corresponding to this being a problem in our bathrooms.

“The University of Texas at Austin is an inclusive campus that promotes equity and supports community members from all backgrounds,” Fenves continued. “Much like the Texas businesses community, UT hosts conferences, classes, sporting events, concerts and public programs throughout the year. We also actively recruit faculty, staff and students from around the state and nation. We are available to speak with lawmakers about the impact new laws could have on those efforts.”

The Texas bill has also captured the attention of organizations outside the state. The American College Personnel Association, which is planning its 2018 convention in Houston, has thrown its weight against the bill. ACPA hasn’t changed those plans yet but is monitoring the situation.

“I am really deeply concerned about transgender folks not feeling safe attending our convention and being in the state of Texas,” said Stephen John Quaye, ACPA’s vice president and an associate professor at the College of Education, Health and Society at Miami University in Ohio. “I worry a lot about the people who live there on a daily basis.”

ACPA moved its Assessment Institute from North Carolina over that state’s bathroom bill. Many others pulled operations out of the state as well, with higher ed-related changes ranging from the National Collegiate Athletic Association moving championship events out of the state to the Business History Conference changing the location of its 2018 meeting from Charlotte.

Higher ed leaders must step up to fight bathroom bills and discriminatory legislation, said Dian Squire, the director of equity and inclusion for ACPA and a visiting assistant professor in the student affairs program at Iowa State University.

“I would just call on higher education organizations and others who are concerned about fairness and justice to make a statement, to contact their local representatives, to contact representatives in Texas, to check on their colleagues and friends and family who live in that area and get a sense of what’s happening there and how it will affect the community,” Squire said.

Still, chancellors at the University of Texas, Texas A&M, the University of North Texas, Texas Tech, Texas State University and the University of Houston system declined interviews or did not provide statements.

Several system spokespeople said they do not comment on pending legislation and cannot lobby for or against bills. They did not have available cost estimates for implementing the bathroom bill or data on how many transgender students could be affected. A spokeswoman for the Texas Higher Education Coordinating Board said the same, adding that the board will comply with bills that become law.

A few systems were willing to identify concerns or share current policies that could be affected, however. University of Texas System spokeswoman Jenny LaCoste-Caputo said in an email that the system’s lawyers have identified some concerns with the bill.

“UT System’s Office of General Counsel and Office of Government Relations continue to analyze Senate Bill 6 to determine the impact the bill would have on UT institutions should it become law,” she said. “A chief concern that has been raised is that the bill may conflict with Title VII and Title IX, federal nondiscrimination laws. We will be monitoring closely and sharing information with legislators as appropriate.”

The question of Title IX conflict is particularly cloudy at this point in time. The U.S. Department of Justice and U.S. Department of Education said sex-segregated restrooms and other facilities need to be accessible by transgender students in last year’s Dear Colleague letter outlining Title IX guidance. That set up a still-developing showdown over North Carolina’s bathroom law.

University of North Carolina President Margaret Spellings told campuses to enforce North Carolina’s bathroom law in April. Soon after, the Dear Colleague letter came out, and Spellings made a different pledge. She told a court she would not try to enforce the law as long as a lawsuit over it is pending.

Challenges are still making their way through the courts. Currently, speculation is high that the incoming Trump administration will drop the Title IX transgender guidance. That would mean universities would no longer be able to argue they were caught between federal and state bathroom rules. But President-elect Donald Trump and Vice President-elect Mike Pence have given seemingly conflicting statements over bathroom bills at different times in the past, leaving the future uncertain.

The proposed Texas bill would also conflict with some on-campus policies in the state. University of Texas System campuses have nondiscrimination policies in place that often extend protection to gender identity and expression, LaCoste-Caputo said. Texas Tech University System campuses have a similar policy, Vice Chancellor for Communications and Marketing Brett Ashworth said in an email.

“Texas Tech University System policy is that while sexual orientation and gender identity are not explicitly protected categories under state law, it is the system’s policy not to discriminate in employment, admission or use of programs, activities, facilities or services on these bases,” Ashworth said.

Institutions in states passing bathroom bills are likely to be at the center of battles no matter what the incoming Trump administration does, said Peter Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University in Gulfport, Fla. Even if the administration were to drop its Title IX guidance and walk away from the North Carolina lawsuit, interest groups would likely step in, he said.

“Most of the positions in Title IX have an oppositional group that will jump in and challenge it,” Lake said. “Taking it to the legal authorities is a way to have combat over the cultural issues that are around Title IX.”

Lake termed the issues raised by Title IX and the bathroom bill multidimensional -- in addition to federal law and guidelines, there can also be issues with state laws. The battle is being fought in the court of public opinion as well, as evidenced by some businesses’ efforts to abandon North Carolina and threats to leave Texas over the bathroom bill.

Texas higher ed leaders are no strangers to the culture wars on campus. An intense fight over a state campus concealed carry law resulted in the state’s attorney general arguing professors who bar guns from classrooms should face discipline.

With legal and political debates raging, Lake wasn’t surprised higher ed leaders are reluctant to comment.

“They’re caught between major political forces combating,” he said. “You don’t want to draw ire or too much attention. We can’t arbitrate the culture wars ourselves. Sometimes by chiming in, it makes it more difficult.”