Lawmakers in Texas, Kentucky, and Virginia are the latest to propose legislation that replicates North Carolina’s controversial law—despite the risk of backlash.
David A. Graham
Jan. 9, 2017
In North Carolina, the lessons of H.B. 2, last year’s controversial transgender “bathroom bill,” seem clear. The law states, among other things, that transgender people must use bathrooms corresponding to the biological sex on their birth certificates when using public accommodations.
The law inspired huge boycotts, cost the state an estimated hundreds of millions of dollars in lost economic growth, drew a lawsuit from the Department of Justice, and was a central cause of Republican ex-Governor Pat McCrory’s defeat in his reelection bid. In late December, an attempt to repeal the law failed amid partisan acrimony—but over how to repeal the bill, not whether to repeal it.
But in several states, legislators have taken a different lesson: They’ve seen what happened in North Carolina and decided that their states need something like it. Lawmakers in Texas, Virginia, and Kentucky have all filed similar bills, reflecting an alternative political calculus on transgender rights. While the language is slightly different across the bills, they share several essential characteristics: They define biological sex based on an individual’s birth certificate, and then say that people must use public accommodations—especially in public schools—corresponding to that sex.
The legislation comes at a dramatic political moment, when the future of transgender law is in flux. The Obama administration reacted fiercely to North Carolina’s law, filing suit against the state and then issuing guidance saying that all schools should allow students to use bathrooms corresponding to the gender with which they identify, saying Title IX mandated it. But a federal judge blocked that law in August. Backlash to the administration’s order, combined with the expectation that a Trump Justice Department will take a far different tack on transgender issues and interpretation of Title IX, seem to have inspired legislators to push their own legislation, even at the risk of incurring the harsh business backlash that accompanied H.B. 2. In fact, part of the strategy behind the new wave of bills is a calculation that while boycotts may be effective on a state-by-state scale, they will fall apart if many states enact such legislation.
The Texas bill, styled S.B. 6, is perhaps the most viable of the bills proposed so far, given GOP majorities in the legislature and Governor Greg Abbott’s previous positive statements about bathroom bills. It covers school districts, open-enrollment charter schools, state agencies, and some other districts. Like North Carolina’s H.B. 2, the bill is designed to preempt local governments from passing their own ordinances governing transgender restrooms, and like that law, it does not affect private businesses. The bill was filed by Senator Lois Kolkhorst of Brenham, but its big booster is Lieutenant Governor Dan Patrick. (Kolkhorst’s staff declined to make her available to speak on it.)
“We know it’s going to be a tough fight,” Patrick said at a news conference in Austin on Thursday. “The forces of fear and misinformation will pull out all the stops, both in Texas and nationally. But we know we’re on the right side of the issue, and we’re on the right side of history.”
It’s difficult to forecast the fate of proposals like these. A bathroom bill in South Dakota last year appeared to be on a fast-track to enactment before Governor Dennis Daugaard, a Republican, surprised some observers by vetoing the bill after meeting with transgender people. Still, the other two bills proposed this year seem to face serious hurdles.
Kentucky’s bill is similar to Texas’s. The bill in sponsored by Representative Rick Nelson, a Democrat from Southeastern Kentucky. Nelson did not respond to a request for comment, but he told the Louisville Courier-Journal, “I just want to make sure those bills are out there in case the other side decides not to do them. I support them and think they’re pretty good.” He appeared to be alluding to the dearth of support among Bluegrass State Republican leaders for such a bill.