KETR

Civil And Business Rights...And The Bathroom

May 15, 2016

An ordinance to restrict bathrooms based on the sex listed on one’s birth certificate failed to make it to a vote Monday May 2nd in Rockwall. The ordinance introduced by Mayor Jim Pruitt had no other support from the council. Many transgender people and their allies gathered to voice their opposition to the ordinance and saw their wishes fulfilled with the proposal failing…but why it failed may still give pause.

Texas has been a key player in the “bathroom bills” debate starting last year with Houston’s rejected HERO ordinance to outlaw bathroom discrimination, though North Carolina’s law prohibiting inclusion of gender identity in local anti-discrimination ordinances truly thrust the issue into the national consciousness, and violates civil rights, according to the U.S. Department of Justice.

Texas has shown willingness to override local city ordinances with a law last year preventing any bans on fracking when Denton banned such operations inside city limits. The state law effectively forced everyone in Texas to accept fracking operations essentially anywhere. Even their own residential neighborhoods.

The reasoning behind lawmakers passing the fracking law is similar to the given reasons the councilmen in Rockwall opposed the mayor’s bathroom bill. The freedom for business to operate without government micro-management. Rockwall’s bathroom bill is actually a good example of government overreach, too. The ordinance would have prevented businesses from even building new and entirely separate gender neutral facilities as an option for their customers.

However, such reasoning becomes a concern if taken too far, since this is part of the same reasoning that would allow public business to refuse to sell cakes to homosexuals. Or serve black people. The latter being something that may sound ridiculous to most of us today, but the rights of business owners to refuse de-segregation was tested in court after the Civil Rights Act of 1964 was passed.

Some national leaders are working to explicitly protect gender identity under existing law, but such identity is precisely what the North Carolina state legislature prevented local ordinances from including in any anti-discrimination ordinances (convening the first special session in 35 years to accomplish the task).

And the US Department of Education has told school districts that federal law requires schools to let students use restrooms "consistent with their gender identity". The Obama administration said they are not committing to taking action, such as withholding federal funding, while the issue continues to be decided in the courts, but the announcement has outraged many, including Texas Lt. Governor Dan Patrick, who compared the directive to blackmail.

Despite the multitude of signs you have likely read over the years, businesses do not have the right to refuse service to anyone for any reason. Local, state, and federal law specifically protect individuals against discrimination, and laws like the one in North Carolina threaten to erode such protections. Additionally, such laws prevent local communities from expanding protected classes if they choose to do so.

Rather than business concerns, individual liberty and civil rights are the core considerations for those opposing bathroom bills like Rockwall’s. The ability for an individual to live their life as they see fit, free from oppression by the government, other entities, or other individuals and that this ideal be upheld by law.

Where to draw the line between personal liberty and free enterprise appears to remain a core question, if not the most exciting. With the rallying cry of religious freedom in selling cakes and now the safety of women and children at stake, the ability for business to operate unfettered of any restraint or oversight appears as a primary consideration for many lawmakers. While Citizens United may have seemingly erased all differences between a person and a business and their inherent Constitutional rights, things still aren’t that simple.

In Rockwall, at least, the freedom of business was the primary voiced reason no other council member supported the mayor’s ordinance. Four of the six councilmen said their initial response was in favor of the ordinance. Of the two that never supported the bathroom bill, one said he saw it as a property rights issue in addition to all people deserving equal protection under the law. However, the Pruitt was met with no hint of acceptance when, after a short discussion, made the serious suggestion that the ordinance be re-written to apply only to city-owned property. So it is reasonable to say that the personal liberty concerns voiced at the meeting also carried weight on the council’s final decision, but the stated reasons for their opposition does matter as the issue continues to be tested in Texas and around the nation.

In Texas, a Lufkin councilman has said he is drawing up a similar ordinance for consideration and Lt. Governor Dan Patrick has sworn to introduce legislation to protect children and women from sexual predators when using public bathrooms.

If the discussion in Rockwall is any indication, many proponents of the bathroom ordinance clearly recognize that transgender people are not a danger to women and children, yet failed to conclude that measures which exclusively scrutinize individuals that do not visually appear as traditionally male or female in no way combats sexual predators, who, in all but extremely rare cases, DO visually appear male or female.

An important consideration as there is a push to make ALL public bathrooms gender neutral. Several towns have mandated that all single-use bathrooms be designated as gender neutral. Opposition to this idea carries more apparent logic and evidence than measures that hinge on the sex of a person’s birth certificate; and especially when considering personal privacy concerns, the difficulty of passing laws against “upskirt” photography, non-consensual (or “revenge”) porn, and many other types of online harassment that affect primarily women which are easier to get away with (if the action even breaks a law) as technology evolves.

The current issue is NOT about mandating multi-use gender neutral bathrooms, however. These restrictive ordinances likely are in some way reactionary to the idea, but thus far have shown no reasonable ability to be enforced and have been seen as breaches of liberty and freedom to individuals and businesses alike. While a private, lockable bathroom for everyone may sound like a wonderful idea to many people, the renovation costs associated with such would be a massive financial burden for business. This might also just leave us with half the space we currently have when all is said and done.

The debate in Rockwall did get people emotionally charged, and not necessarily for the best. The vast majority of the nearly four hour meeting was very cordial and respectful, but not entirely. Disgust for transgender people, or “abominations” as one man put it, was evident from some proponents of the ordinance. Some in opposition also shouted not-so-nice sentiments at times. While this type of intensity can bring out the best in people, it can also bring out the worst. Perhaps worst of all, it may make us easy to manipulate.

The council’s voice being swayed more by the freedom of business than the freedom of individuals may yet prove worrisome; not just for transgender people and the LGBT community, but for all of us here in Texas and the nation at large. Especially if the loudest voices are fueled by fear and anger.

Everyone wants exactly the same option here, after all - a reasonably safe, private, and accessible place to take care of necessary business. Let’s be smart enough to not get the bathroom all messy.

(The editorial opinion expressed is that of the author and does not necessarily reflect the views or opinions of KETR or Texas A&M University-Commerce)