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In 2017, conservative lawmakers failed to pass legislation targeting transgender Texans. Things were different this year.
"How Texas Republicans moved beyond a bathroom bill to successfully ban transgender athletes from school sports" was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.
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For state Rep. Celia Israel, the priority issues for the Legislature this year seemed quite obvious as the legislative session got underway in January. She expected lawmakers to grapple over the state’s response to the pandemic, voting rights and, later, how to fix the electric grid after February’s winter storm.
What she didn’t expect was her Republican colleagues’ relentless push for legislation that restricts transgender youth participation in sports.
“We should be progressing in time with how we’re dealing with these issues but we’re not,” said Israel, an Austin Democrat and founding member of the Texas House LGBTQ Caucus.
Texas joined at least five other states that have passed similar legislation this year when Gov. Greg Abbott signed House Bill 25 into law on Monday. Political observers, Democratic lawmakers and LGBTQ advocates say the flurry of state laws targeting transgender people is part of Republican lawmakers’ latest strategy to shore up appeal among social conservatives ahead of the upcoming election season.
HB 25 will require students to participate on sports teams that correspond with the sex listed on their birth certificate at or near their time of birth, rather than their gender identity. Under the legislation, birth certificates that have been legally modified to align with a person’s gender identity would no longer be accepted unless it was amended to correct a clerical error.
The bill was considered a top Republican priority, which Israel said illustrates just how consensus for passing anti-LGBTQ legislation has changed over the years — notably since 2017, when the so-called “bathroom bill'” failed to pass during a special session. Back then, socially conservative lawmakers, led by Lt. Gov. Dan Patrick, pushed hard to limit transgender people from using public and school bathrooms that matched their gender identity. But a number of factors — like a House speaker who actively spoke out against anti-LGBTQ legislation, plus greater influential sway from the business community — helped tamp down the momentum.
By this time around, however, circumstances had changed and Republican lawmakers insisted on the issue throughout back-to-back legislative sessions, finally sending the legislation to Abbott’s desk on the fourth try.
Catering to social conservatives
Susan Burgess, a political science professor at Ohio University, says this kind of legislation started gaining traction in Texas and across the country during former President Donald Trump’s administration, which sought to curtail protections for transgender Americans in an attempt to cater to socially conservative voters.
The offensive strategy that has emerged includes zeroing in on transgender children, a hyperspecific yet vulnerable group, to coalesce social conservatives around a perceived threat ahead of an election year, Burgess said.
“This is a very old sort of tactic to focus on children in particular because your first instinct is to protect your kid if you feel like your kid is under threat, right?” she said. “So the aim here is to try to suggest that there is something threatening children in the schools. Of course, these trans kids aren’t threatening anyone, but that's the aim of the bills — to kind of conjure up a scare because people's instinct almost is to protect their kids when they're under threat or perceived to be under threat.”
According to the Public Religion Research Institute, while a majority of Americans across party lines support nondiscrimination policies for LGBTQ people, there’s clear partisan separation on the issue of transgender athletes’ participation in sports. About 9% of Republicans and 62% of Democrats favor or strongly favor allowing transgender girls to participate in girls’ sports, according to a PRRI survey of more than 5,000 adults across all 50 states that was conducted in August.
“This was not a Texas special bill,” Israel said of HB 25. “This was cut-and-paste [legislation] happening throughout the country.”
State Rep. Valoree Swanson, R-Spring, author of HB 25, and state Sen. Charles Perry, R-Lubbock, the bill’s sponsor and author of similar legislation in the Senate, have touted the legislation as a way to promote fairness and protect women in sports. Neither of them responded to requests for comment for this article.
Both have argued that under Title IX, a federal law that prohibits discrimination based on sex in education, transgender girls should not be allowed to play on teams with cisgender girls.
“This bill is about protecting the physical safety, the opportunities and the mental health of all of our females, all of our girls in this state, and it's very, very important that we do that,” Swanson said at a House committee hearing. “Everybody can be included but they need to play sports by their biological sex so that everyone has a fair playing field.”
Opponents of the legislation have called it unnecessary because there aren’t that many transgender athletes currently participating in school sports and interscholastic competition in Texas. But their objections weren’t enough to stop HB 25 from being resurrected special session after special session this year.
Overcoming House troubles
Obstacles in getting HB 25 and similar legislation passed arose early on in the House, where the bills languished.
The first incarnation of the bill made it to the House floor during the regular session but missed a deadline. It died in the first special session after a group of House Democrats fled the state to break quorum and block controversial voting restrictions pushed by their Republican counterparts. State Rep. Harold Dutton, D-Houston, the chair of the House Public Education Committee, had allowed the bill to advance during the regular session, but held it up during the second special session. When the third special session came around, the fate of the bill was uncertain.
But unlike previous iterations of the sports bill in sessions this year, HB 25 tacked on findings related to Title IX, making it ripe for House Speaker Dade Phelan’s newly created House select committee on Constitutional Rights and Remedies chaired by state Rep. Trent Ashby, R-Lufkin. The new committee placement was a major breakthrough that led the bill to finally move to the House floor with enough time for floor debate.
Democrats gave waves of impassioned testimony against the bill, introducing about 20 amendments to temper what they saw as a severe measure. Amendments included leaving restrictions up to local school boards, allowing students to participate on their preferred sport team if they receive approval from a principal and applying the legislation only to schools that have a licensed mental health professional on staff. In the end, only one Democratic amendment, from state Rep. Donna Howard, D-Austin, stuck. It required the legislation to abide by state and federal confidentiality laws concerning student medical information.
The legislation appears to have had favor from the top of the chamber from the beginning. Phelan, who had reassured Democrats he would avoid controversial issues that target LGBTQ Texans before becoming speaker, signaled support for legislation targeting transgender youth during the regular legislative session.
His backing was in stark contrast to former House Speaker Joe Straus’ handling of a previous bill targeting transgender Texans. In 2017, Straus explicitly spoke out against the bathroom bill, which never reached a House committee.
“Different House membership and different House leadership certainly made a difference,” said Jonathan Saenz, president of the conservative group Texas Values, which has openly supported HB 25. “... When you don't have the leader of the House preventing members from voting on an issue on the House floor, it then allows the will of the body to have an opportunity to be seen, votes to happen and legislation to move forward.”
Phelan did not respond for comment for this article, and Straus declined to comment.
The business argument
Back in 2017, the business community played an important role in stopping the bathroom bill from picking up steam in the Texas House. It targeted its message toward Straus, who relied on business groups’ arguments to push against the bill. The stance landed him in hot water with some of his fellow Republicans, but the support from the business community proved to be useful for LGBTQ advocates.
This year, the business community wasn’t heard as loudly.
With HB 25 and similar legislation zeroing in on children in K-12 schools, some lawmakers saw the legislative agenda against transgender Texans become less closely linked to businesses, Burgess said.
“This is a little bit one step removed because you're talking about kids,” she said.
Jessica Shortall, managing director of Texas Competes, a business coalition that has argued against anti-LGBTQ legislation, said the business community brought the same energy and numbers to advocate for its interests as it did in 2017. But it was hard to focus on any single bill because of the sheer number of red meat issues legislators put forward this year, she said.
“It's been a harder year in part because there are so many fronts that so many folks are speaking up on for the state to tap the brakes,” Shortall said. “I think the business folks that we work with have been as committed and devoted as ever. It's just a much more crowded field in terms of trying to get messages across.”
Businesses made the argument this year that anti-LGBTQ legislation would turn away families with transgender children and young, highly skilled workers, who are typically more supportive of inclusive policies, from moving to Texas.
Throughout legislative sessions in 2021, major companies such as Amazon, Dell Technologies and IBM tied their names to campaigns and coalitions speaking out against anti-LGBTQ legislation. Democrats often tried to uplift their arguments, but they proved to have little sway among conservative lawmakers and organizations.
For Saenz, the president of Texas Values, the argument is moot.
“That's an argument that's been made against conservative legislation for, I think three or four sessions now, and thankfully I think it's rightly just being ignored because Texas continues to be awarded as one of the best states for business,” he said.
Possible legal pushback
According to the Trevor Project, a national suicide prevention and crisis intervention group for LGBTQ youth, Texas is now the ninth state this year to pass legislation restricting transgender youth participation in school sports. Lawsuits against such legislation have been brought forth in Florida and West Virginia; it remains to be seen if the matter will be tackled by Texas courts as well.
The ACLU of Texas said in a statement last week that it would be assessing possible next steps, but did not say whether it plans to file a lawsuit challenging HB 25.
The Biden administration has also condemned the legislation. White House staff recently held a roundtable with elected officials and LGBTQ advocates on how HB 25 will affect Texans, the Dallas Morning News reported.
LGBTQ advocates and their supporters in the state legislature have clung to the possibility that Congress will eventually try to pass the federal Equality Act, which would expand nondiscrimination protections for LGBTQ Americans and prohibit discrimination based on sex, sexual orientation and gender identity in areas like education, housing and employment.
But for now, they worry about what HB 25’s passage could mean for upcoming legislative sessions.
According to the organization Equality Texas, which advocates for LGBTQ Texans, the legislature filed more than 75 bills targeting LGBTQ people this year, including a number of failed bills that have targeted gender-affirming care and tried to classify it as child abuse.
“We know these attacks didn't start, and won't end, with transgender kids who want to play sports with their friends,” Equality Texas spokesperson Angela Hale said.
State Rep. Ann Johnson, D-Houston, said she believes HB 25 has “no constitutional basis,” but it will take more than the courts stepping in to mitigate the harm that has already been done from debates over anti-transgender legislation.
“The harm that's happening from this discussion, you can’t undo with a court opinion, and that's part of the challenge. If you really care about Texas, if you really care about children, if you really care about life, you don't use children as a political pawn,” Johnson said. “And that's the deep, dark corner we are in right now in Texas politics.”
Disclosure: Amazon Web Services (AWS), Dell and Equality Texas have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.
This article originally appeared in The Texas Tribune at https://www.texastribune.org/2021/10/27/transgender-athletes-bathroom-bill/.
The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.
Allyson Waller is a reporter at The Texas Tribune.