Texas’s ‘Bathroom Bill’ Is Wrong On The Merits


David Benkof Contributor
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Going into next week’s consideration of a bill restricting transgender bathroom use, Texas Republicans are split. Social conservatives tend to support it, hoping to push back against liberal overreach, particularly regarding sexuality and gender. Moderates oppose it, fearing the effects of an economic backlash like the one suffered by North Carolina when it passed a similar bill.

Few Texas conservatives, though, have denounced the bill itself as unnecessary, counterproductive, and a betrayal of conservative values. That’s a shame, because it’s all of those things.

The proposed legislation restricts localities from enacting permissive policies regarding bathroom use, and mandates restrictive policies in government-owned buildings and public schools. But the bill solves a fake problem.

Texas has ongoing problems regarding declining oil prices, border security, and underfunded, overcrowded schools. For the vast majority of Texans, which bathrooms transgender people use is wholly theoretical, because people rarely look closely at others while visiting the toilet, much less evaluate their gender.

Texas Lt. Gov. Dan Patrick has raised the specter of non-transgender men who are sexual predators getting a “free pass” to access potential victims. But the law is completely decentralized with no organized enforcement mechanism. Even if passed, there will be no bathroom police preventing men with nefarious purposes from claiming to be transgender and assaulting women and girls – if such people even exist.

The idea that the law protects children’s innocence is laughable. Right now, bathroom experiences virtually never force parents to discuss transgenderism with their children. But imagine the law is passed and obeyed as intended. People who look like women, for example – with female clothing, hair, voices, and names – will be using male facilities. Some trans women, when in a hurry, may even use urinals. Suddenly parents have no choice but to explain transgenderism to their children.

Certainly, locker rooms are different from bathrooms because of regular, casual nudity. Schools should indeed devise locker room policies that protect everyone’s privacy and dignity, perhaps by discreetly arranging for transgender boys and girls to change separately. But a much narrower law could have accomplished that.

Look, I’m a conservative. I believe we should have every law we need to function as a society – and not a single one beyond that. Texas doesn’t need legislation that makes lots of noise, but probably hurts more people than it helps.

Why are conservatives supporting a bill that expands government reach? The law levies harsh monetary penalties on schools or government units that fail to require bathroom use based on biological sex.

How on Earth is that going to be enforced? The law defines sex as what is listed on a birth certificate. Without using that standard (“your papers, please”), how will schools know who must use which bathroom? There are non-transgender feminine men and masculine women who use (of course) the bathrooms of their biological sex. Who’s going to stop a mannish woman using the woman’s room, and ask her to demonstrate she wasn’t born male? Must she drop her pants?

And let’s say a trans teacher is believed to have used a school’s woman’s room. How is the administration going to confirm that? With an investigation? And if they give her a warning, how will they determine if she’s complying? Does Texas really want individual bathroom battles at schools and offices throughout the state? Because many trans men and women will continue to use the facilities that match their internal gender – either for privacy or for civil disobedience. Then what?

Either this bill is purely symbolic – in which case we are wasting our time – or it is going to require the state to track who’s monitoring thousands of toilets statewide. Some offices and schools will enforce the policy loosely (again, so what’s the benefit?) and others will be restrictive and even punitive, creating complicated and wholly unnecessary crises in places that should be focusing on learning and government administration.

That so many Republicans are enthusiastic about a bill so contrary to conservative values is disturbing, to say the least. But the Republican opposition to the bill isn’t all that reassuring either – so far it has focused on the dubious issue of economic damage from boycotts over this issue.

Sorry, but Texas has sovereignty over its own business and should choose legislation its voters want its representatives to implement. We wouldn’t want Congress to reject an internal policy proposal because Japanese and European tourists and businesses threatened retaliation. Even though I oppose this law, if other states and cities decide to mess with Texas over this it, the state should stand firm.

But there’s no dishonor in objecting to this bill on the merits. Perhaps level-headed Republicans can join with Democrats to put this whole controversy out of its misery so the state can get back to controversies that matter.

David Benkof is a columnist for the Daily Caller. Follow him on Twitter (@DavidBenkof) and Muckrack.com/DavidBenkof, or E-mail him at DavidBenkof@gmail.com.