Editor's note: This story has been updated throughout.
As part of Republican efforts to revive the controversial "bathroom bill," the Texas Senate on Tuesday gave initial approval to another version of the legislation.
The 21-10 vote came after an eight-hour debate during which Republicans once again espoused the need to pass the legislation for the sake of privacy in bathrooms while Democrats objected to its passage because of its discriminatory effect on an already vulnerable population.
Senate Bill 3 by state Sen. Lois Kolkhorst would regulate bathroom use in schools and buildings overseen by local governments, including cities and counties, based on the sex listed on a person’s birth certificate or other IDs issued by the Texas Department of Public Safety. The inclusion of those IDs was a significant change made to the legislation during floor debate that's helpful for transgender adults unable to change their birth certificates but will probably do little to enable transgender children to use school bathrooms that match their gender identity.
The legislation would also nix parts of local nondiscrimination ordinances meant to allow transgender residents to use public bathrooms of their choice.
"I offer SB 3 … as a solution for Texas,” Kolkhorst, R-Brenham, said in presenting her bill to the chamber, arguing it would set a statewide policy on bathrooms and offer guidance to school districts.
“It will hit the reset button and provide the privacy and safety that Texans expect,” she added.
But Democrats suggested the bill’s language was actually a relic of the past. They described wording in the original bill that prohibited the creation of policies to protect “a class of person from discrimination” as language the Legislature hasn’t considered since the Jim Crow era.
“The bill you filed affirmatively allows discrimination. It says you can’t protect from discrimination,” state Sen. Kirk Watson, D-Austin, told Kolkhorst.
“I’m thinking about how staggering it is that in 2017, the state Senate has to fix a bill on the floor that allows for discrimination — expressly allows — and prohibits protection of discrimination,” Watson added, referencing an amendment by Kolkhorst to reword a significant portion of the legislation and cut that language.
For hours, Democrats echoed arguments made during 10 hours of public testimony last week and earlier this year, when the divisive issue first dominated the regular legislative session but stalled following a stalemate between Lt. Gov. Dan Patrick and House Speaker Joe Straus over the issue.
Democrats asked about the discrimination the legislation could bring to transgender people who already face tragically high rates of suicide. They raised questions about the proposal’s constitutionality and whether it violated Title IX and First Amendment protections. They asked about the millions of dollars in economic losses cities could face because of cancellations over concerns about discriminatory policies. And they questioned the lack of support among the law enforcement community for a policy proponents say is meant to dissuade sexual predators from committing crimes in bathrooms — a point for which they’ve provided little evidence.
For hours, Kolkhorst and other Republicans offered rebuttals similar to those they’ve expressed for months.
Kolkhorst rejected the idea that the legislation was discriminatory. She responded that legal questions surrounding the legislation would play out in the courts. She brushed off economic concerns by indicating she valued “daughters over dollars.” And she dismissed law enforcement’s opposition to the legislation by insisting that the legislation "shuts down the opportunity for predators and voyeurs to assault women by exploiting this proposed lack of gender boundaries."
The chamber’s position on the issue — with a vote identical to the Senate’s March vote on a similar proposal — was unchanged. But the Senate did make several changes to the legislation.
Unlike the Senate’s proposal from the regular session, the current bill would not regulate bathroom use in state buildings and public universities or impose civil penalties for entities that violate the bathroom restrictions. But it was revised to touch on participation in athletic activities.
That line on the bill opened up efforts by Watson to attempt to derail consideration of the legislation by arguing, through a point of order, that SB 3 went beyond the scope of the agenda set forth byGov. Greg Abbottin calling lawmakers back for a special session.
“Everyone in this room did not leave common sense at home this morning,” Watson said, pointing out that Abbott’s list calls for legislation regarding the use of bathrooms, locker rooms and changing facilities but not extracurricular athletic activities.
He was eventually overruled by Patrick, but not before consideration of the bill was delayed for almost two hours.
In considering more than 20 amendments, the Senate adopted several changes to the legislation to bring back exceptions to bathroom policies included in the version of the bathroom bill considered during the regular legislative session.
Among them was an exception to bathroom policies for stadium, convention centers and other government-owned venues if they are leased to a private entity. (Opponents of the bathroom bill have said that won’t be enough to avoid economic fallout from the legislation.) The chamber also adopted an amendment to include exceptions in cases in which someone is receiving assistance because of age or a disability.
But the chamber’s Republican majority also rejected a flurry of amendments offered by Democrats, including an amendment to exempt transgender people from the regulations, an amendment to increase penalties for attacks on transgender people, and an amendment to track economic losses brought on by the restrictions.
The vote came just days after hundreds of Texans — a majority of them opposing the legislation — signed up to testify during a marathon committee hearing. While that testimony did little to sway the Senate’s Republicans it did result in the amendment that added DPS-issued IDs, which includes handgun licenses but not school IDs, to the list of documents used to determine acceptable bathroom use under the legislation.
Despite the hours of debate, what remained unresolved was how transgender people were expected to navigate the proposed bathroom restrictions, which would require transgender men, women and children to use bathrooms designated for people who may not physically resemble them.
Pressed by state Sen. John Whitmire, D-Houston, for a solution to that “horrible situation,” Kolkhorst responded that the bill “refers back to your birth certificate.
“I suspect that they would do whatever is necessary for themselves,” she added.
But Democrats closed the debate by arguing that Republicans would ultimately do exactly what they claimed to prevent: Put men and boys in restrooms designated for women and girls.
“Because trans boys are boys and trans girls are girls,” state Sen. Sylvia Garcia, D-Houston, said.
The Senate must still give the legislation a final OK before sending it to the House, where it's likely to face an icy reception by Straus, a staunch opponent of such legislation. That vote could come as early as Wednesday.