In the toiletTexas unveils its “bathroom bill”

“THE PHANTOM MENACE”, the Star Wars film made in 1999, would be an apt title for a documentary exploring a 21st-century phenomenon in a galaxy far closer: the legislature of the State of Texas. In recent years, Texas passed a voter-ID law that would have disenfranchised hundreds of thousands of its residents. It also approved abortion-provider regulations that would have reduced the number of clinics in the state to the single digits. Texas’s purported justifications for these laws—averting voter fraud and protecting women’s health—were roundly shot down by, respectively, the Fifth Circuit Court of Appeals and the United States Supreme Court. In both cases, the menace Texas feared was found to be a figment of legislators’ creative imaginations. The real motives behind the laws were transparent: Texas wanted fewer Democratic-leaning blacks, students and poor people to vote, and it wanted to make abortion rights harder to exercise.

Texas has struck again. With the stated aim of protecting the “privacy” and “safety” of its citizens, Texas Republicans are pushing a new bill requiring bathrooms in schools and government buildings to be reserved for people whose “biological sex” matches the gender referenced in the pictogram on the loo door. People whose gender identities differ from the identity assigned to them at birth would be forced to use bathrooms for the gender they believe they are not. Senate Bill 6 also takes aim at local governments that have expanded protections for transgender people. It would forbid Texas cities and counties from establishing a transgender-friendly standard for private businesses—effectively negating ordinances passed in Austin, Dallas, Fort Worth and other cities that shield transgender people from discrimination.

Dan Patrick, Texas’s lieutenant governor (pictured), summoned one of the 20th century’s most celebrated voices for civil rights in championing the cause: “Martin Luther King Jr. said, ‘Our lives begin to end the day we become silent about things that matter.’” The bathroom bill, he said, “is unquestionably one of the things that matters. It's the right thing to do." The urgency to police public restrooms matches the import of the Civil Rights Act of 1964, Mr Patrick implied, because women and children’s dignity is at stake. Do supporters of transgender rights “really want a man walking into a restroom with their daughter or mother or wife?” he asked. “Have we gone too far in the world of political correctness that we've forgotten common sense, common decency"? Not to be accused of understating the bill’s significance, he added, “If we can’t fight for something this basic, then we’ve lost our country.”

The heart of the bill is its concept of “biological sex”; lawmakers define it as “the physical condition of being male or female, which is stated on a person’s birth certificate”. This definition is fraught for several reasons. First, as many as 1 in 1,500 babies are born with ambiguous genitalia that qualify them as “intersex”, though that designation was only used for the first time last week, when a Brooklyn-born, 55-year-old California resident received a revised birth certificate from New York City in the mail. Second, thousands of the 1.4m transgender Americans have had sex-reassignment surgery, which means that many people who were designated as male or female at birth now have “the physical condition” of being another gender. And for transgender people who retain the biological markers of their original gender identification (because they choose not to undergo surgery or cannot afford it), the fact of their sense of themselves remains. Many transgender women and men feel not only uncomfortable but endangered when being forced to use a bathroom that does not mesh with their identity. In a 2013 paper, Jody Herman, a scholar at the UCLA law school’s Williams Institute, discussed a survey finding that 70% of transgender people “reported being denied access, verbally harassed, or physically assaulted in public restrooms”.

No similar research bears out the theory that opening bathrooms to transgender people spurs sexual predators to put on lipstick and a dress to target women and young girls in public facilities. Last year, a coalition of organisations dedicated to preventing the abuse of women issued a letter addressing Mr Patrick’s worry. “As rape crisis centers, shelters, and other service providers who work each and every day to meet the needs of all survivors and reduce sexual assault and domestic violence throughout society”, they wrote, “we speak from experience and expertise when we state that these claims are false”. Texas Republicans say that strict gender segregation in public bathrooms is “common sense”, but their appeal to conventional wisdom is not borne out by the evidence. A police department official in Des Moines, Iowa, said he doubts that bathroom tolerance for trans people would “encourage” illicit behaviour. Sex offenders, he said, will find victims “no matter what the laws are”.

Texas is not alone in moving to emulate North Carolina’s controversial House Bill 2, last year’s bathroom bill that spurred boycotts, marred the state’s image and cost it hundreds of millions of dollars in lost revenue. Seven other states, including Virginia, Minnesota, and Alabama, also have similar legislation pending. Having lost the culture war over gay and lesbian rights with the Supreme Court’s ruling that allowed same-sex marriage nationwide in 2015, conservative forces have found a new issue around which to draw a line in the sand. The political strategy is dubious, and the message to transgender people is stark—we do not and will not accept you.