The Texas “bathroom bill” is anti-transgender legislation on steroids.
It’s not that Senate Bill 6, which cleared the state senate by a 21-10 vote this week at the urging of Lieutenant Governor Dan Patrick, is that much different from North Carolina’s notorious House Bill 2 or the other proposed “bathroom bills” that we’ve seen in other states.
But by virtue of its Lone Star state setting, SB6 is poised to have an outsized impact on a large slice of the American transgender population—one that is already coping with an archaic birth certificate policy that will only magnify the bill’s effects.
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According to the Williams Institute, an LGBT think tank based out of the UCLA School of Law, there are over 125,000 transgender adults in Texas, most of them black or Latino. North Carolina, for comparison, is home to about 45,000 transgender adults. The Texas total falls just shy of 9 percent of the 1.4 million transgender adults in the entire country. No other state besides California has a larger trans population.
And if SB6 clears the state house—an uncertain possibility, given that Republican House Speaker Joe Straus has said he’s “not a fan of the bill”—those 125,000 transgender adults and thousands of transgender minors would be barred from using public restrooms unless they have successfully updated the gender markers on their birth certificates.
That’s where things get especially tricky for transgender Texans.
“Getting your documents updated in the state of Texas is rather difficult,” Lou Weaver, Transgender Programs Coordinator for the LGBT advocacy group Equality Texas, told The Daily Beast.
“Rather difficult,” in this case, is an understatement. The majority of U.S. states have written policies allowing transgender people to change the gender markers on their birth certificates with either a doctor’s letter specifying that they have had “appropriate clinical treatment” or proof of sex reassignment surgery, which not all transgender people want or can afford. About twice as many states require surgery as those that do not.
But the state of Texas goes a step further, requiring transgender people to obtain a court order—generally after surgery—to change the sex on their birth certificates.
Not all judges are willing to provide such an order.
As the National Center for Transgender Equality notes, “current case law and evidence indicates that some Texas officials and judges are averse to issuing the necessary court orders.”
Transgender people may have to travel to a different county to locate a court that will accommodate their request. And even when they people do find a willing judge, the process takes time.
“It’s not like going to the local McDonald’s and ordering your Big Mac—it doesn’t just happen,” Weaver joked. “It’s an onerous project, it takes months, it’s not easy, and it costs money.”
By contrast, even a state like North Carolina will accept a notarized physician’s letter after surgery to update the sex field on a transgender person’s birth certificate. In California, the physician’s letter only requires “clinically appropriate treatment,” which may include hormones and therapy.
If SB6 passes, then, even transgender Texans who have undergone sex reassignment surgery—but who haven’t been able to go through the state’s circuitous process for updating their birth certificates—will be required to use public restrooms corresponding to the gender they were assigned at birth. And as SB6 moves one step closer to the governor’s desk, transgender people are already trying to get their documents in order.
“We’re already having trans people scrambling here in Harris County,” said Weaver.
This problem will only be exacerbated for transgender minors who attend public schools. Here’s the catch: SB6 defines “biological sex” based on a birth certificate and also requires public school districts to restrict multiple-occupancy bathroom use by “biological sex.”
But medical guidelines for transgender minors stipulate that they should not receive the genital surgery that may be required for a birth certificate change in many states until the “legal age of majority.” The bill allows for—but does not require—school districts to make an alternative accommodation for trans students.
(Most recently, we saw the results of a similar catch-22 when a transgender boy named Mack Beggs won a girls’ category in a Texas state wrestling championship because the athletics association restricted his participation based on his birth certificate, which still said “female.”)
In effect, many Texan transgender minors would be effectively banned from using bathrooms matching their gender under SB6 simply because they are not old enough to undergo the necessary medical care required to update their documents.
Even more bizarrely—as the Texas Tribune detailed in its analysis of SB6—the bill would allow the attorney general’s office to collect penalties of up to $10,500 per violation from school districts that do not regulate bathroom use by birth certificate.
These penalties would be instituted even as state lawmakers in Texas are looking to increase the state’s school funding. As the Dallas Morning News reported, Texas ranked in the bottom third of states in terms of spending per student in 2016.
SB6 would empower the attorney general’s office to investigate school districts that violate the law and to sue them to collect money for “a crime victims fund,” as the Texas Tribune reported, effectively taking money away from schools.
“If this is really about protecting women from men who would go into the bathroom claiming to be trans, then why are we punishing the school?” Weaver asked. “We’re really punishing the school for allowing trans youth to go to school. It doesn’t make sense.”
Of course, the Texas state legislature could decide that it’s not necessary to check birth certificates at the bathroom door. Any such requirement will require transgender people, depending on where they were born, to undergo costly and perhaps unwanted medical procedures to preserve their right to use the restroom.
Recognizing the potential effects of SB6, the Texas Association of Business and major companies including Amazon, American Airlines, Apple, IBM, Microsoft, and PayPal have all urged the state to spike the bill.
But it’s up to the house to decide whether they want Texas to pass legislation that would easily overshadow North Carolina’s “bathroom bill” in its magnitude. Not everything has to be bigger in Texas.
