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July 22nd, 2017:

Anticipating the future bathroom-related litigation

It will be a matter of when, not if, should a bathroom bill passes.

[B]oth sides agree if any version of the bathroom bill becomes law, it will likely trigger a protracted legal battle that could have implications for the transgender community in Texas and nationwide.

“If it does in fact pass, it will be a big test for civil rights organizations,” said Anthony Kreis, an assistant professor at the Illinois Institute of Technology’s Chicago-Kent College of Law. “It will also be a huge, landmark case in the courts to test the scope and limits of transgender rights in this county.

Senate Bill 3 and Senate Bill 91, authored by Brenham Republican Lois Kolkhorst, are nearly identical. They would both require public and charter schools to ensure that every multiple-occupancy bathroom, shower and locker room “be designated for and used only by persons of the same sex as stated on a person’s birth certificate.”

A few schools in Texas allow transgender students to use the bathroom that matches their gender identity, according to Joy Baskin, legal director for the Texas Association of School Boards. But Kolkhorst’s bills would force trans girls, for example, who are born male but identify as female to use either a private, single-stall bathroom or the boys’ restroom.

School districts would also not be able to protect athletes from discrimination, unless they are already covered under state or federal law, such as Title IX. Courts in other parts of the country have ruled Title IX’s prohibitions on sex discrimination against female athletes also apply to transgender students. But there’s been no similar decision that applies here in Texas.

The University Interscholastic League, which regulates most high school sports, already segregates competition based on the sex listed on an athlete’s birth certificate. This year, it famously barred a transgender boy from wrestling other boys; he went on to win the girls state title.


Legal experts agreed that while the legislation won’t create a state-funded “potty police,” it will likely land Texas in the courtroom if it becomes law.

Dale Carpenter, a constitutional law professor at Southern Methodist University’s Dedman School of Law, questioned the legality of Kolkhorst’s bills as well as two pieces of legislation pending debate in the House.

The House bills, pushed by Carrollton Republican Ron Simmons, are far narrower and seek to shift the power over regulating bathroom from municipalities and schools to the state government.

But TASB’s Baskin says Simmons’ schools bill won’t require them to change their current policies because it would not force trans kids out of the multi-stall restrooms that match their gender identity. Simmons disagrees, but understands most schools are already only providing single-stall bathrooms for trans kids.

House Speaker Joe Straus, R-San Antonio, has called the bathroom debate unnecessary and the legislation anti-business, but one of Simmons’ two bathroom bills already has more than 40 Republican co-sponsors in that chamber.

Carpenter said the Senate bills would be more susceptible to a legal challenge because they restrict rights based on biological sex and gender identity. The House bills don’t explicitly use these terms or limit bathroom use based on “birth certificate,” so they’d be tougher to fight in court, he said.

“The (Senate) bill, it seems to me, is directly aimed at preventing people from using restrooms associated with their gender identity,” Carpenter said. “But, no matter which of these laws passes, it will probably be challenged.”

Obviously, it would be best if it didn’t come to that, but best to be prepared for the worst. My assumption has been that there will be more than one lawsuit, as there will be multiple angles to attack this from. The fact themselves that the bills being considered seem to have a lot of loopholes and room for broad interpretation is also an invitation to litigate. Like so many other things the Lege and our Republican leaders have deemed to be top priorities, this will be tied up in the courts for years.

But first, there’s the hard work to try to stop these bills from becoming law, and a big part of that is the public testimony against them. One takeaway from the fight over HB2, the omnibus anti-abortion legislation that Wendy Davis filibustered and the Supreme Court eventually invalidated, was how much the public testimony contributed to the court case, by showing how indifferent and willfully ignorant the Republicans were to objective fact and contradictory evidence. I feel pretty confident the same sort of thing will happen here with the potty bills, if they make it to the finish line. There’s live coverage of the hearings in the Trib, and there’s plenty of activity going on outside and around the Capitol, as the Texas Association of Business runs anti-bathroom bill ads and the national Episcopal Church comes out against the bills. It’s never a bad idea to call your legislator and let them know how you feel, so make your voice heard. And remember, in the end, the one message every politician receives is losing an election. The Observer, BurkaBlog, the Current, the Rivard Report, and Texas Leftist have more.

UPDATE: In the end, SB3 passed out of committee, as expected. On to the floor of the Senate, then it’s up to the House.

Plaintiffs again ask for voter ID law to be tossed

Again I agree with them.

Still the only voter ID anyone should need

Minority groups have asked a federal judge to scrap Texas’ voter identification law and place the state under the jurist’s supervision for at least a decade, according to court filings this week.

Not only are the groups taking on the state over the law they say discriminates against blacks and Latinos, but they also want U.S. District Judge Nelva Gonzales Ramos of Corpus Christi to kick their former ally, the U.S. Justice Department, out of the case.

“The United States’ shameful and disgraceful dismissal of their intent claim for political purposes should disqualify them from participating further in this proceeding; the ideals of equality inculcated in the United States Constitution are not subject to such shabby treatment as demonstrated by this administration,” Rolando Rios, a lawyer representing the Texas Association of Hispanic County Judges and Commissioners, wrote in a court brief.


There’s no indication of when Gonzales Ramos, who has twice ruled that the original voter ID law was intentionally meant to suppress minority voters and intentionally discriminated, might rule on the plaintiffs’ requests in the voter ID case.

See here for the previous time that Judge Ramos was asked to void the law. It’s not clear to me if this is the same group as that, but in any event this ask comes with the ten-year re-imposition of preclearance. The motion to dismiss the now-antagonistic Justice Department is new, too. I can’t find a copy of this brief, but Rick Hasen has the state’s brief asking the judge to drop out and declare all is now well, and the Trump DOJ brief echoing that position and claiming the state is super trustworthy now. Yeah, sure. The Observer has more.

Rebidding reycling


Mayor Sylvester Turner

Pummeled by procurement concerns on a 20-year curbside recycling contract, Mayor Sylvester Turner said Friday he will seek a new round of proposals from the four final bidders.

Turner had met with small groups of City Council members Thursday to get a better sense of the concerns they repeatedly have raised since the proposal first was rolled out in late June, and announced his decision early Friday.

“This action is designed to put to rest the concerns raised by members of council, which must approve the contract before it takes effect,” Turner said. “Whatever the result, my only allegiance is to this city and I will always seek what is in its best interest.”


The four firms that will be invited to submit a new round of final bids are FCC Environmental, Republic Services, Waste Management and Independent Texas Recyclers.

The mayor did not specify how much time the firms would have to submit their proposals or how quickly they would be evaluated.

See here and here for the background, and here for the Mayor’s statement. I don’t know what went wrong in this process, but clearly something had gone off the rails. I’m glad to see this happen, but let’s do review how we got here and figure out how to do it better next time, OK?

Meanwhile, Gray Matters returns to the One Bin For All question with a few words from Roseanne Barone, the Houston Program Director for Texas Campaign for the Environment.

The national Paper Recycling Coalition, Steel Recycling Institute, Institute for Scrap Recycling Industries and others knew that when used materials, food and pet waste are all combined together, it is also known as another name — “trash” — and so they wrote letters to then-Mayor Annise Parker advising her against this policy.

Thankfully, when Mayor Turner took office in 2016, he knew the best practice for Houston is to keep recyclable materials separate and clean so they can be sold to commodity markets and generate revenue for the City.


According to the Houston-Galveston Area Council, when we include composters, hard-plastics reclaimers, electronics processors, construction- and demolition-debris recyclers and manufacturers of goods made from recycled items, we have 21,550 recycling jobs in our region and an industrial output of $4.5 billion per year.

Who knew recycling was so vital for Houston’s economy? Additionally, throwing all discards into landfills supports a disposable, wasteful culture while doing real damage to our environment. There are 56 leaking landfills in the state of Texas, four in Harris County and one in Fort Bend County. Landfills are also more often than not located in low-income neighborhoods, so trashing valuable materials also perpetuates environmental injustice.

Barone, like her predecessor Melanie Scruggs, advocates for a zero waste policy. At the very least, bringing curbside recycling to apartments and businesses would make a difference. Let’s get the recycling deal done and go from there. The Press has more.

Hey lady, wanna referee a high school football game?

Texas could really use you.

The Houston chapter of the Texas Association of Sports Officials is somewhere between 50 and 200 officials short for the 2017 football season.

TASO Executive Director Michael Fitch has referred to the statewide shortfall of referees as ‘crisis-level,’ and the rapid expansion – particularly in Houston – of numerous districts and the opening of new schools has stretched an already-thin roster of officials even further.

The officiating organization, which staffs both UIL and TAPPS contests, needs bodies badly, and there is a very noticeable demographic that isn’t signing up to referee: women.

At a June 24 new-official training at the Campbell Center, only two of the 40 trainees (five percent) were women, which crew chief and trainer Eric Dumatrait said is about par for the course.

Comprising 51 percent of the general population, but just five percent of the TASO workforce, is a pretty startling discrepancy, if that number is accurate organizationally. There is no way to be sure, though, as TASO doesn’t track membership demographic information like gender or race, Fitch said by phone last week.

Fitch said that the primary concern – especially with the deadline to sign up as a new official looming – is getting more bodies in striped shirts, and equipping them to succeed once they’re in them. To that end, he would be delighted if more women signed up to officiate, and he said that, anecdotally, he actually has seen an uptick in interest among women since Sarah Thomas became the NFL’s first full-time referee in April of 2015.

“We just need more people,” Fitch said. “I’ve been officiating high school football since 1973, and even in the seventies, we had females who came in. There’s obviously more now, and the fact that we have a woman officiating in the NFL shines a light on that.”

Officiating for TASO is a fairly lucrative part-time job (Houston-area crew chief Don Martinez estimated that $2,500-$4,000 was a reasonable expectation for 10 weeks of diligent work), and, for someone who loves sports, offers the opportunity to be outside, to work with student-athletes, refine one’s knowledge of the game, etc.

While it’s certainly not for everyone – and Dumatrait, Fitch, Martinez and the rest acknowledge that explicitly – officiating is a relatively high-paying part-time gig with some unique perks.

Why aren’t more women signing up?

See here for the background. I’m going to take a wild guess at that question and suppose that it’s the same reason why more women don’t run for office: Because they need to be asked. I’m sure TASO is a supportive organization, and that the women who go through their training and get certified to work high school football games do just fine and generally consider it a positive experience. I’m just saying that if they want more women to join up, they need to actively recruit them rather than point out how excellent they are and hope for the best. Given that this is the second story we’ve seen in a bit more than a month about the critical shortage of people to officiate the games, you’d think they’d have more of a sense of urgency. Get on it, TASO.