States Can Now Restrict Transgenders' Bathroom Use, But Will They?

For Texas state Sen. Lois Kolkhorst, requiring people to use the bathroom according to the gender on their birth certificate has always been about public safety.
by | February 24, 2017 AT 12:30 PM

By Kurtis Lee

For Texas state Sen. Lois Kolkhorst, requiring people to use the bathroom according to the gender on their birth certificate has always been about public safety.

It's why Kolkhorst is the prime sponsor of a controversial transgender bathroom bill _ the Texas Privacy Act _ being debated in the Legislature, and why she welcomed news that the Trump administration had ceased a federal mandate, implemented by President Barack Obama, directing schools to allow transgender students to use restrooms and other facilities that match their gender identities.

"I am grateful," Kolkhorst said in a statement. "The people of Texas must define for ourselves what boundaries are expected in our public facilities."

Texas Lt. Gov. Dan Patrick, a staunch supporter of her bill, also lauded the move, calling the legislation prudent, not discriminatory as critics have charged. "It is a common-sense, privacy and public safety policy for everyone," he said.

Similar legislation backed primarily by Republicans in a dozen states would require people to use the bathroom based on the gender on their birth certificate, according to the National Conference of State Legislatures. In the Trump administration's decision, it said the issue of bathroom access is one that should be left to the states.

The administration's move has buoyed the hopes of supporters of so-called bathroom bills, but they still face opposition in many states, even conservative ones.

Obama's guidelines, which were announced in May, required schools to treat transgender students according to their stated gender identity, and either allow access to restrooms and locker rooms for the gender they identify with or provide private facilities if requested. Obama's attorney general, Loretta Lynch, had argued that students' gender identities were protected under Title IX requirements, which prohibit federally funded schools from discriminating on the basis of sex.

Those guidelines received strong pushback as several states filed lawsuits arguing, among other things, that they hindered operations in public schools. A federal judge had issued a temporary injunction in December, essentially stalling the rules.

The Trump administration framed the issue as one of states' rights. In a statement, Attorney General Jeff Sessions said state legislatures and local governments "are in a position to adopt appropriate policies or laws addressing this issue."

The Justice Department, he added, is "committed to the proper interpretation and enforcement of Title IX and to its protections for all students, including LGBTQ students, from discrimination, bullying, and harassment."

On Thursday, press secretary Sean Spicer, reiterated the administration's view that states should be left to make their own legislation on transgender bathroom access.

"The president obviously understands the issue and the challenges (that) especially young children face," he said. "He just believes that this is a state issue that needs to be addressed by states."

For Trump, commenting on social issues _ such as same-sex marriage, abortion or transgender rights _ has never seemed much of a priority.

Indeed, throughout his campaign, Trump hardly discussed the topics.

When asked about transgender bathroom access at a town hall last April, Trump said people should be able to use whichever bathroom they choose. In a follow-up interview days later, he said the issue should be left up to the states.

Opponents of bathroom laws have assailed the measures as discriminatory. Among the notables denouncing the move was Jackie Evancho, who sang at the president's inauguration. Evancho, who has a transgender sister, wrote on Twitter: "@realDonaldTrump u gave me the honor 2 sing at your inauguration. Pls give me & my sis the honor 2 meet with u 2 talk #transgender rghts."

She also tweeted: "I am obviously disappointed in the @POTUS decision to send the #transgender bathroom issue to the states to decide. #sisterlove."

Some Republican governors have called bathroom bills unnecessary. Govs. Asa Hutchinson of Arkansas and Matt Bevin of Kentucky have said they won't support such legislation.

Some opposition to bathroom bills stems from the experience of North Carolina. After it became the first state to have such a law when it was passed last March, corporations, sports leagues and artists boycotted holding events in the state. Charlotte, the state's largest city, lost nearly $100 million when the NBA moved its All-Star Game this year to New Orleans, city officials estimated.

In Texas, the nonpartisan Texas Association of Business conducted a study on the potential economic influence Kolkhorst's measure would have on the state, concluding that it could cost between $964 million and $8.5 billion in the first year, with tourism taking a large hit.

Yet this has not deterred lawmakers in other states. This week, ahead of the Trump administration's announcement, Missouri state Sen. Ed Emery, who is sponsoring a bathroom bill in his state, castigated the Obama-era mandates.

"It certainly changes the dynamic," Emery said of Trump's move. "We don't feel threatened by the federal government anymore."

Sarah McBride, national press secretary for the Human Rights Campaign, which advocates and seeks expansion of lesbian, gay, bisexual and transgender rights nationwide, called the rescinding of Obama's directive disgraceful.

"This was life-saving guidance that protected transgender kids," said McBride, who herself is a transgender woman. "This is all very disheartening and is a bad signal for transgender people all across the country."

Terri Burke, executive director of the ACLU of Texas, said that "there are some lawmakers emboldened by" Trump's move. But she thinks bathroom bills can still be defeated. "Many Texans and people around the country understand gender identity," she said, adding, "we've got to keep educating."

Legal issues continue to swirl around bathroom bills. The Supreme Court is scheduled to consider a case about a transgender boy who wants to use the boys' bathroom at a Virginia high school.

Gavin Grimm won his case in lower courts, citing the guidelines issued by the Obama administration. In the fall, the Supreme Court decided it would hear the school district's appeal to the lower court ruling.

Attorneys for the school board in Gloucester County, about 50 miles north of Norfolk, noted in their appeal that government regulations say they can have "separate toilet, locker rooms and shower facilities on the basis of sex."

(c)2017 Los Angeles Times