Texas’ legislative session is ending soon, and not without some new discrimination against LGBTQ people passed into law. Lawmakers have already agreed adoptions agencies should be allowed to discriminate against queer people, but they have yet to agree on how exactly they want to restrict which bathrooms transgender people can use.
It seemed like there was hope most of this legislation would stall, but then came along what many have called “Discrimination Sunday.” This past Sunday, lawmakers in both chambers advanced anti-LGBTQ bills.
The Senate took up and passed a bill allowing religiously-affiliated adoption agencies to refuse to serve same-sex couples (and others), even as they continue to receive state funding. Of all the states that have considered legislation allowing child-placement services to practice their anti-LGBTQ beliefs, Texas’ bill is one of the most sweeping, and Gov. Greg Abbott (R) is expected to sign it.
Meanwhile, the House was considering an amendment to an unrelated bill that would mandate discrimination against transgender students. In the days since, it seems the two chambers cannot agree on how exactly they want to impose anti-trans discrimination. Several different bills are now on the table:
- SB6 was the original sweeping bathroom bill that lawmakers proposed and tried to support with a massive misinformation campaign demonizing transgender identities. Like North Carolina’s HB2, SB6 would prohibit trans people from using bathrooms that match their gender identity in any public space, overturning nondiscrimination protections in several Texas cities. It passed the Senate, but stalled in the House.
- SB 2078 was a bill related to school safety and disaster preparedness — until Sunday night when the House tacked on an amendment mandating that transgender students could not use restrooms that match their gender identity. They’d have to use single-stall restrooms or wait until no other students were present in the shared facilities. School districts that want to accommodate their trans students believe it would still let them, but its author, Rep. Chris Paddie (R) was clear that it wouldn’t — or at least wasn’t supposed to.
- HB 4180 is what’s known as the “Christmas tree bill,” because every lawmaker wants to hang an ornament on it. Usually these are noncontroversial local matters, but on Tuesday, the Senate attached an amendment copying SB6 to it as well. It’s expected to pass the Senate Wednesday.
The reason for all these different bills is because the situation is quite messy. The House thinks SB6 is too extreme to pass, which is why it passed the narrower (but still quite discriminatory) SB 2078 amendment. But Tuesday night, the Senate said it wouldn’t accept that amendment — because it’s too narrow. That doesn’t mean that version is dead, per se, but the conflict between the Senate and House versions would have to be resolved in conference. It could thus end up returned to its original state related to disaster preparation, or it could still be used as a vehicle for anti-trans discrimination.
That’s why the Senate responded to the SB 2078 amendment with its own amendment to the Christmas tree bill. Rep. Garnet Coleman (D) is ready to kill that bill when it returns to the House; in fact, he told the Dallas Morning News, “I’ve been preparing for this since the day this was filed.” He explained that he had no investment in the bill except to make the Senate “look stupid” for trying to pin their agenda to it.
So SB 2078 remains the most likely vehicle for a bill regulating bathrooms, and because it’s an education bill, that would be limited to students. But Lt. Gov. Dan Patrick (R), who has been driving the momentum for these anti-trans bills, isn’t satisfied with that either. So even if that bill ends up imposing discrimination on trans students, it might not be enough, and Patrick might still call for a special session to revisit something broader like what was proposed in the original SB6.
What comes next
However things play out with the bathroom legislation, there are consequences to the child-placement bill. Rebecca Robertson, Legal and Policy Director for the ACLU of Texas, described the bill to ThinkProgress as “shocking” for how expansive and harmful it could be to children.
Though the bill is usually described in terms of how it will allow adoption agencies to refuse service to same-sex couples, the bill also creates a religious right of refusal that affects anybody who is does work related to child protection services. According to Robertson, it will apply to counselors, case managers who do home studies, people who run group homes where children live, and even foster parents. “All of these folks who get state money to take care of kids in state care are going to be able to put their own religious beliefs ahead of the best interests of the child,” she explained. Texas is simultaneously privatizing even more of its child protection services infrastructure, making this particularly concerning.
The bill specifically allows children under state care to be subjected to “religious education,” which could be particularly damaging to queer children. They might be forced to go to a religious private school, for example, that has policies that reject or even punish LGBTQ identities. “Maybe the child goes to public school but has to endure some sort of conversion therapy as part of that religious education,” Robertson offered. “As long as it takes place in a church basement, it might count.”
Even if by some chance none of the bathroom bills end up passing, Robertson says they’ve already done incredible harm to trans kids and their families. “I can’t help but think about the impact this is having on these kids, who have come to their capitol, hearing after hearing, believing, ‘If only they meet me, they won’t pass these bills!’” she said.
“Even a compromise is discrimination and it will hurt these kids,” she added, noting that the SB 2078 amendment specifically calls for trans kids to be segregated from their peers. “It’s telling these children: ‘Your mere presence in a space with your peers is perceived as a danger. You are so different that we can’t let you be with your peers.’”
Robertson worries that the saturated national news cycle has really prevented a bigger outcry about the kinds of discrimination Texas lawmakers are advancing. Because of the way North Carolina’s anti-trans bill, HB2, was slightly watered down this year, Texas’ proposals stand to become the new most discriminatory laws in the country, but there just hasn’t been a public backlash of the same magnitude as was seen in North Carolina, or with other pro-discrimination bills in Indiana and Arizona in years past. “There’s so much that’s distracting attention; if this were a quieter time for national news, I think this would be a bigger story and people would be more aware of it and expressing their opinions.”
Given Texas’ legislature only meets every other year, an economic backlash could mean two full years of the state’s brand being severely diminished unless a special session is called to repair the damage. That would have to be done by the governor, who called passing some form of bathroom legislation one of his highest priorities for the end of the session.
The final day of the session is Monday, May 29, but — whatever the outcome — these fights are far from over.