Dallas conservatives want new 'bathroom bill' put to a public vote

DALLAS—Just a few days after celebrating victory over a so-called “bathroom bill” in Houston, Texas conservatives found themselves blindsided by the approval of a similar measure in Dallas. Pro-family groups say the measure puts women and children at risk, while supporters say the new language adopted last week doesn’t significantly change an ordinance that’s been in place for more than a decade.

The update, approved unanimously by the Dallas City Council, changes the language in the city’s longstanding non-discrimination policy to explicitly protect residents from discrimination based on gender identity.

“This is worse than the Houston ordinance,” Jonathan Saenz, an attorney and president of conservative advocacy group Texas Values, said. “The language in the Dallas ordinance says that the decision to go into the bathroom is solely based on a person’s perception at any given moment of being male or female. A man doesn’t even have to dress up as a woman, and this law protects their right to [use a woman’s restroom] anyway. It puts private business owners in a position of being punished and prosecuted for trying to maintain a sense of privacy and safety.”

In 2002, the Dallas City Council approved an ordinance that prohibits discrimination on the basis of sexual orientation in employment, housing, and public accommodation—including restaurants, hotels, movie theaters, stadiums, and retail or wholesale providers of goods and services.

According to the council, “sexual orientation” in the original ordinance was meant to include gender identity, but LGBT rights supporters recently advocated to protect individuals identifying as “transgender” more explicitly. Last week, council members voted to update the verbiage in the legislation to reflect the difference.

“We had mistakenly put ‘gender identity’ under the ‘sexual orientation’ subheading, and it really has nothing to do with sexual orientation,” councilman Philip Kingston said. “I would call this a drafting change that does not change the substantive policy that has been in place for 13 years.”

Councilman Lee Kleinman said there is a distinct difference between where a person relieves himself and someone intending to inflict harm.

“If a person, say, went into a bathroom—whether it’s a man in a men’s restroom or a man in a women’s restroom—and dropped his drawers and said, ‘Look at me!’ it would be in violation of public lewdness laws, and the police would get involved,” Kleinman said. “To simplify this by calling it a ‘bathroom bill’ and not equal rights protection is bigotry in its most disgusting form.”

But conservative organizations and politicians have decried the change, citing concerns over public safety and decency.

“This ordinance isn’t about discrimination, it’s about political correctness—and Dallas city leaders have put political correctness ahead of both common sense and common decency,” Texas Lt. Gov. Dan Patrick said in a statement. “The facts are clear. No woman wants a man to be allowed in a ladies restroom or locker room, no matter the reason.”

While city council members say the language was intended to clarify the existing non-discrimination policy, others say it serves only to confuse.

“When you have these changing definitions of gender identity and sexual orientation that are subjective and not objective, that creates a lot of problems for the government in knowing whether people are going to be prosecuted or how this is going to be enforced,” Saenz said. “When you have private business owners in a position of being punished for trying to maintain a sense of propriety, you’re going to create a public safety nightmare.”

Kingston, also a lawyer, noted he can offer “13 years of evidence” showing public safety is not at risk due to the language update.

“We can’t find any complaint since this policy has been in effect in Dallas where a man has tried to use a women’s restroom for the purpose of sexual gratification or to harm women—and my stomach turns to even say that—and then said that they were transgender,” he said.

Since “transgender” is a diagnosed medical condition, he added, it would be difficult for a non-transgender individual to justify going into a non-gender-appropriate restroom. In a court of law, Kingston said, a person would have evidence of “seeing a professional to get a diagnosis, taking hormones, or experimenting with wearing women’s clothing.”

If a person identifying as transgender were prohibited from patronizing a business or using a public restroom, that person would have the option to file a complaint against the establishment with Dallas’ fair housing department, Kingston said. An investigator would evaluate the situation and decide on an appropriate remedy, which Kingston suggests would likely be counseling for the business owner. The highest remedy, he said, would be a misdemeanor citation.

Saenz said the new ordinance language was finalized “in closed, executive session” on Nov. 9 then “fast-tracked” to approval in open session the following morning. Kingston argues the rule was created during a year-long public process. The clarification was on the council schedule, but “no one showed up to oppose it,” he said.

While Saenz would like to see the issue put to a public vote, Kingston said the public has effectively weighed in already: “Every 10 years we review our city charter, which is the constitutional document of the city. With regard to city employees, we put a proposition before the public last November to say, ‘It is the public policy of the city of Dallas that we fully protect gender identity.’ The public approved that measure 77 percent.”

Still, a public vote would allow Dallas voters to have a definitive say in the matter, Saenz insisted.

“It’s only a matter of time before [Dallas lawmakers] look three-and-a-half hours south and see what happened in Houston,” he said. “The people should have an opportunity to vote and see about this at the ballot box. That’s one way that you erase any cloud of impropriety that exists now.”