The special session of the Texas Legislature is expected to end this week, and it appears the so-called bathroom bill is going to fail. The Texas House has yet to even schedule a hearing on Senator Lois Kolkhorst’s bill, and the public pressure against the legislations is getting stronger. Both the Dallas Stars and the NHL decried the legislation last week, with Stars President Jim Lites saying the team is against any sort of bill which appears discriminatory. There are a few unsaid reasons why the Stars are against the bill, including the fact they’re hosting the NHL draft next year, but it was an important stance to take.
There are plenty of people out there who believe the bill is a good thing, with most probably believing it will keep women and children safe from predators. I base this on conversations I’ve had with people on the bill, with almost all parents saying they want to keep their kids away from harm. The problem is these well-meaning people are being preyed upon by politicians and activists, mainly Lieutenant Governor Dan Patrick, who are looking to capitalize on fear for political gain. The same could be said for bill opponents who are trying to paint this simply as an anti-transgender measure. Transphobia is certainly a factor in the bill, but it’s doubtful a majority of supporters want to force transgender people to stop being transgender.
The biggest problem is the Texas proposal is completely unnecessary. Why, you may ask? Because what Kolkhorst’s bill claims to prevent is already illegal.
Say you have someone decide to go into a women’s restroom to attack a woman. Here’s what Texas Penal Code 22.011 says on Sexual Assault:
(a) A person commits an offense if the person:
(1) intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent;
(B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent; or
(C) causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor…
(b) A sexual assault under Subsection (a)(1) is without the consent of the other person if:
(1) the actor compels the other person to submit or participate by the use of physical force or violence;
(2) the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat;
(3) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist;
(4) the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting it;
(5) the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring;
(6) the actor has intentionally impaired the other person’s power to appraise or control the other person’s conduct by administering any substance without the other person’s knowledge;
(7) the actor compels the other person to submit or participate by threatening to use force or violence against any person, and the other person believes that the actor has the ability to execute the threat…
It’s a first or second degree felony to sexually assault someone in Texas.
What about an attack on a young child? Texas Penal Code 21.11 has that answer:
INDECENCY WITH A CHILD.
(a) A person commits an offense if, with a child younger than 17 years of age, whether the child is of the same or opposite sex, the person:
(1) engages in sexual contact with the child or causes the child to engage in sexual contact; or
(2) with intent to arouse or gratify the sexual desire of any person:
(A) exposes the person’s anus or any part of the person’s genitals, knowing the child is present; or
(B) causes the child to expose the child’s anus or any part of the child’s genitals…
c) In this section, “sexual contact” means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:
(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or
(2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.
It’s a second or three degree felony to commit indecency with a child, and children are also covered under Texas Penal Code 22.011.
What about someone, whether they be transgendered or not, going into a bathroom to get off on seeing a woman or child inside or to expose themselves? Texas Penal Code 21.08:
INDECENT EXPOSURE. (a) A person commits an offense if he exposes his anus or any part of his genitals with intent to arouse or gratify the sexual desire of any person, and he is reckless about whether another is present who will be offended or alarmed by his act.
(b) An offense under this section is a Class B misdemeanor.
What about someone deciding to film someone in the bathroom?
Sec. 21.15. INVASIVE VISUAL RECORDING. (a) In this section:
(1) “Female breast” means any portion of the female breast below the top of the areola.
(2) “Intimate area” means the naked or clothed genitals, pubic area, anus, buttocks, or female breast of a person.
(3) “Changing room” means a room or portioned area provided for or primarily used for the changing of clothing and includes dressing rooms, locker rooms, and swimwear changing areas.
(4) “Promote” has the meaning assigned by Section 43.21.
(b) A person commits an offense if, without the other person’s consent and with intent to invade the privacy of the other person, the person:
(1) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of an intimate area of another person if the other person has a reasonable expectation that the intimate area is not subject to public view;
(2) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another in a bathroom or changing room; or
(3) knowing the character and content of the photograph, recording, broadcast, or transmission, promotes a photograph, recording, broadcast, or transmission described by Subdivision (1) or (2).
(c) An offense under this section is a state jail felony.
These laws completely delegitimize Patrick’s argument the bathroom bill is important for public safety, because they’re already in the books. There are already punishments in place for people who want to go into the women’s (or men’s) restroom to commit a crime. It doesn’t necessarily mean a predator is going to go, “Oh, I better not go into the bathroom because of a law on X,” but the fact there is zero punishment for the person who violates the proposed bathroom bill, and it only punishes cities, counties, and school districts through “costs and attorneys fees,” shows how stupid and toothless the idea is. The bathroom bill won’t actually do anything, something the main proponents of this legislation have to know.
So why do it at all? Judge Phyllis Randolph Frye, who gets a h/t for pointing out the Texas Penal Code, opined in Houston Chronicle last year, it was all about transphobia, but I think wanting to keep children safe is a bigger factor. Patrick, Kolkhorst, etc. want to be able to sit there and say to constituents, “Look we did something!” when in reality they did nothing at all. It’s the same reason why HERO was put in place in Houston, and thankfully that ridiculous ordinance was voted down because it went way too far and started telling private businesses what they could and couldn’t do.
Praise Odin the Texas House doesn’t appear interested in passing this bill, when there are so many other issues (property tax reform and private property protection) which are so much more important than who uses what bathroom. Governor Greg Abbott would also be wise to skip a second special session on this issue, because it won’t do anything except cost taxpayers even more money.
One thing I do I want to add is how people can ensure their own privacy, and that of their children if they’re that worried about seeing a “woman with a penis,” or a “guy with a vagina.” The Texas proposal only applies to government-owned buildings, so people can certainly abstain from going into a government building restroom, should they find themselves in a building. If they’re at a public library, they could talk to the librarian about making sure the book they’re reading or computer they’re on is kept reserved for them, while they go to a 7-Eleven or CVS to use the bathroom.
Schools are a little bit trickier, but not by much. Texas school districts are typically allowed to set their own policies, which includes parental involvement. Fort Worth ISD changed their policy on transgendered bathroom, shower, and locker room access after parents complained. There’s nothing to stop other parents from doing the same thing. If a school district won’t change the policy, then parents can move their child into a private school, most of which offers scholarships to families of lower income students.
The fact is there are steps individuals can take to protect their own privacy without the need for government intervention. People need to realize this before giving into fear.