Bathroom V. Courtroom: Confluence for Symbolism of Protected Class, Politics, Social Justice, Safety and Health

Bathroom v. Courtroom: Confluence for Symbolism of Protected Class, Politics, Social Justice, Safety and Health

Barbara Qualls, Ph.D. Wayne D. Haglund Stephen F. Austin State University Haglund Law Firm, P.C. [email protected] [email protected] 1

“If freedom makes social progress possible, so social progress strengthens and enlarges freedom.” Robert F. Kennedy

INTRODUCTION

There is no shortage of issues on which members of the political far left and far right can assume positions that preclude the finding of common ground. There is, however, at least one issue that can serve as surrogate for many other partisan issues. That issue is: Who can use which segregated public bathroom?

A time-tested definition of social justice was presented by Louis Brandeis: “Social justice is the fair and just relation between the individual and society. This is measured by the explicit and tacit terms for the distribution of wealth, opportunities for personal activity and social privileges” (Brandeis, 1916). Over a hundred years later, that definition seems tailor-made for today’s clash between those who practice or tolerate gender fluidity and those who do not – specifically as that clash is fought behind the euphemistic screen of public bathroom access.

In an address before the Chicago Bar Association in 1916, Brandeis said, “In the last half century our democracy has deepened. Coincidentally there has been a shifting of our longing from legal justice to social justice, and – it must be admitted – also a waning respect for law. Is there any causal connection between the shifting of our longing from legal justice to social justice and waning respect for law? If so, was that result unavoidable?”

What is legal and what is moral should never be assumed to be equivalent, but modern grassroots movements for social justice include efforts to break existing social barriers, while creating safety nets for those who traditionally have been socially marginalized. Naked statements of bigotry, intolerance, bias and hatred are often met with significant pushback, even from those who might share the belief systems that generate those statements. As a result, 2 euphemisms and socially acceptable language is sought to allow their expression, while avoiding unilateral dismissal and condemnation. Public bathrooms and who gets to use them provides a rich field for examination of the clash of law and tolerance, discrimination and human rights, class and race – with vague sexual and danger overtones. In addition, public bathroom access has a distinct economic component. How much was the State of North Carolina (or Texas or

Colorado) willing to pay to placate an increasingly socially isolated part of its citizenry?

HISTORY AND PERSPECTIVE

The term “bathroom bill” has emerged as a description of legislative effort to regulate access to public bathroom facilities. Most frequently, the regulatory effort is aimed at transgender people. There are three designations of ‘gender’ used most often in bathroom bill language – sex assigned at birth, sex as recorded on birth certificate, and sex that corresponds to gender identity (Lopez, 2016).

Recent history of bathroom wars as political/social statement took tangible form in March

2016, with the beginning of discussion of what would become HB 2 in North Carolina. This discussion was the state-level response to a municipal law in Charlotte that allowed people to use bathrooms that aligned with their gender identity. Charlotte’s law was like one already in place in San Francisco. The previous December (2015), Washington State clarified an intact law, defining bathroom accessibility as consistent with a person’s gender identity. A few months earlier, a Philadelphia law required gender-neutral signage for single-occupancy bathrooms. A few months earlier, the Justice Department (under then-President Obama) had argued for a transgender high school student in Virginia, specifically concerning bathroom use. In April of

2015, President Obama established a gender-neutral bathroom in the White House. It should be 3 noted that these municipal and local actions were in response to a series of proposals for transphobic laws across the country (Drum, 2016).

North Carolina’s HB 2 was soundly thumped in media and vocal protest. Almost immediately, the probable high economic impact of the legislation became evident with a series of threats of boycotts, cancellations, and loss of business. Among the threatened boycotts were

PayPal and the NBA. In addition, the federal government (under then-President Obama) brought discrimination suit. By 2017, North Carolina may have temporarily retreated from the forefront of the bathroom wars, but over fifteen other states continue exploring that option, with varying levels of success. Surface level examination of the arguments for each side of bathroom war legislation might indicate that it is all about biology, but in earlier times – as now – bathroom access has really been about social issues, attitudes and biases (Wheeling, 2017).

One problem that writers of modern-day bathroom bill language face is that they cannot bluntly assert their intent. Euphemisms and blatant falsehoods about intent are usually substituted for transphobic and homophobic language, in much the same manner that substitute language was used to mask racial discriminatory intent in the past. Kogan (2007) repudiated a common assumption that sex-segregation of bathrooms was essentially an effort to recognize biological differences and privacy needs or preferences. In fact, ‘separate facilities’ does seem benign and natural, until one considers wheelchair users who need assistance from an opposite sex partner or provider, a transgender individual dressed and presented in gender identity who is banned from bathroom use at work, parents of opposite sex children in a public place (Kogan,

2007). The number and variety of exceptions to binary gender – thus easy bathroom access assignment – complicates in a hurry. 4

It is almost impossible to reach consensus or resolution for an issue that does not have specific, comfortable and grown-up language. One example of how uncomfortable it is to discuss bathroom politics can be seen in the many names and substitute names there are for the place itself: the restroom, the john, the commode, the porcelain throne, the potty, the sandbox, the ladies’ room, the men’s room, the facilities, the loo, etc.

Bathroom Access Conflict – Symbol for Social Conflict

Public bathroom access by gender nonconforming individuals is, of course, a legitimate issue, but it also stands as a substitute for a series of other prejudices. These include conflict between social conservatives and social progressives, religious tolerance and conviction, and genuine concern about the safety of women and children in public bathrooms and opportunism by politicians. Because of that circuitously tangled set of facts, opinions, law, and common usage, the issue may provide foundation for legal, educational, and social discourse for quite some time. An additional facet for examination includes economic impact. Many businesses, national sport leagues, and touring entertainers who draw huge arena audiences have boycotted cities and states where repressive bathroom access regulations are in place or contemplated.

Bathroom wars, as both legal and social battlegrounds, have been among the dominant features of public interest during the last several years. Almost every political leader has contributed their own commentary, but it is difficult to determine whether they express actual concern or echo what is expected from their respective support groups. Among those who have taken public positions are President Barak Obama, then-Attorney General Loretta Lynch and her successor AG Jeff Sessions, Hillary Clinton, Bernie Sanders, Ted Cruz, and President Donald

Trump. If proponents of bathroom access limiting legislation hide behind euphemisms, opponents of such legislation are quick to call them out. Opponents have been quick to point out 5 that the real generative motivation behind limiting access is part of a wide sweep effort to stanch the LGBT movement, and by extension, the non-gender-conforming movement (Young, 2016).

Bathroom access is certainly an issue of today, but it has also been an issue for much longer than just the non-gender-conforming era. During the Industrial Revolution, as women entered the workplace, segregated bathrooms were an issue. During the Jim Crow years, racially segregated bathrooms were an emotional and divisive issue. During the active Women’s Lib movement, the segregated bathroom was an issue argued by both sides. On almost every front where social discourse and disagreement occurs, and where law is needed for regulation, bathroom access plays a role. These areas of disagreement include race, class, gender, crime, and sexuality. In each era where a skirmish in the bathroom wars took place, the major figures of the day also contributed to the discourse. Among those were Presidents Lyndon Johnson, Jimmy

Carter and Ronald Reagan, Reverend Martin Luther King, Jr., and one of the loudest and most influential: Phyllis Schlafly. In fact, it is a strong possibility that the Equal Rights Amendment would today be the law of the land, had Ms. Schlafly’s 1970s voice not been as convincing as it was.

As an architectural phenomenon, separate public bathrooms for men and women began in the early 19th century (Young, 2007). At that time, the separate public bathroom for women was meant to provide women with some of the same security of their home. The ladies’ room was a safe place to retreat from the rough world – which included men and other dangers. It was also in this era when women entered the workforce in increasing numbers, requiring consideration for their bathroom needs in factories. During the period between 1887 and 1920, 44 of the existing states had codified law requiring sex-segregated bathrooms in public places, including the workplace. 6

After WWII, the growing economy resulted in new homes for many of the newly educated and trained returning servicemen. Those new homes were mass-produced and built in such numbers and included some features that had been only in more expensive homes before.

One of those features was multiple bathrooms. A separate bathroom in a ‘master suite’ gave parents and children a new privacy. The three-bedroom, two-and-half bath home became a formula for thousands of new housing developments during the 1950s. That proliferation of bathrooms produced a shared idea – or strengthened an idea already in place – that bathrooms are places of privacy, with a subdued sexual suggestion.

Political Parties – Shifting Focus, Shifting Names

During the Jim Crow decades, the Republican Party was associated with social progressivism, Democrats with conservative. The repressive Jim Crow laws kept racial ‘mixing’ to a minimum in virtually all social, educational and economic areas, which of course, included public bathrooms. A significant part of white racism portrayed black men as barely contained sexual predators, an omnipresent threat to the purity and safety of white women. That idea was a major emotional component of the rise of the Ku Klux Klan in the early part of the twentieth century. An especially ugly corollary was the assumption that black women were complicit: that black women who consorted with unclean and oversexualized black men should not be allowed to share public bathrooms with white women.

Turner v. Randolph (1961) involved the City of Memphis, Tennessee, where a municipal regulation prohibited desegregation of the bathrooms in the city’s public library. The rationale was that venereal diseases, “commonplace among blacks”, would endanger Memphis white women. Sharing bathrooms in public schools was a major part of the reason for Southern resistance to school integration. That resistance, of course, had other roots. Keeping blacks 7 uneducated helped keep the social castes in place, maintained the cheap labor force for the service economy, and preserved entry-level jobs with upward mobility firmly in white control.

As the nation (including the South) gradually became resigned to eventual racial integration, a new type of bathroom war emerged. During the 1950s and 1960s, a growing fear of homosexuality was manifested by police monitoring and arrests of men engaging in sexual activity in public bathrooms. During that time, homosexuality was thought to be closely connected to pedophilia. Thus, another reason to strictly segregate bathrooms by sex was given strength.

Referred to as the “lavender scare”, public bathroom homophobia had faded somewhat by the 1970s. The Equal Rights Amendment (passed by Congress in 1972), however, provided an excellent platform and voice for conservative opponents of almost everything related to integration. The ERA had passed in 33 states by 1974 and needed only five more for ratification.

Founder of the ultra-conservative Eagle Forum, Phyllis Schlafly seized on the issue of public bathroom integration as the weapon to defeat the ERA. Even though the language of the amendment did not require or advocate any mixing of the sexes in bathrooms, Schlafly and her movement were successful in convincing a majority of those who might be potential ratifiers that sexual equality would be the same thing as eradication of sexual difference – and that all kinds of dangerous men would have open access to traditionally women’s bathrooms. The argument of

ERA proponents that women would gain equal protection in employment and education was drowned by the hysteria of Schlafly’s open-door bathroom (Young, 2007).

The ERA movement occurred in the early-to-mid 1970s, which was less than a decade after the Republican Strategy that seized on conservatism, religion, and economic inferiority to the north to, in effect, flip-flop the role of the Democratic and Republican parties in terms of 8 which one was the protector and advocate for social progressivism. In that ripe environment,

Schlafly was successful. The ERA did not gain its needed super-majority for passage.

Then-President Jimmy Carter tried to clarify without losing too much conservative credibility. Indeed, he may have been the last moderate Democrat, and as such, had little excess credibility. He said, “There’s been a lot of distortions about the Equal Rights Amendment. It doesn’t say anything about bathrooms.” Schlafly and the Eagle Forum, though, used loaded language like “integrate public toilets.” In fact, Ronald Reagan threw in some loaded language of his own, with (the ERA) “…would degrade and defeminize women by forcing them to mingle with men in close, intimate quarters.” Quite graphic language, for its time. Everyone heard and understood the dog whistles in that language, too. Rapists, pedophiles, blacks and any number of other hinted at dangers would make themselves at home in the ‘ladies room’ – thereby removing the last refuge for white women. In fact, white women were a major factor in defeat of the ERA.

Without the convenience of email and texting, women besieged their legislators to oppose the

“Common Toilet Law” – in itself, a title of loaded language. A Texas (where else?) legislator,

Clay Smothers, summed up the collective attitude of the time: “I’ve had enough civil rights to choke a hungry goat. I ask for victory over the perverts of this country. I want the right to segregate my family from these misfits and perverts.”

SEMANTICS ABOUT TRANSGENDER AND EMPIRICAL RESEARCH

As has been seen, using straightforward language about bathroom-related activities is uncomfortable and there is a tendency to resort to euphemisms. Add the discomfort of discussing the transgender condition and associated power, class, and race associations – it is not surprising that confusion and opacity of meaning is so prevalent in any discourse about those combined topics. Although he was not referring to bathrooms or transgender, Korzybski (1941) described 9 that confusion cleanly – or at least gave a warning about substitution of euphemism for reality:

“The map is not the territory” (Kozybski, 1941). In an open appeal to the Canadian Parliament about gender-defining pictographs for bathrooms, Buterman (2013) observed that a wide array of conditions other than words contribute to semantic twists about transgender. These include clothing, haircuts and other grooming habits, earrings in specific ears, etc. He further noted that language is the most contorted of all euphemistic expressions, especially confusing since language is, itself, a symbol. He suggests that semantic language distortion is utilized to

“delegitimize trans identities to imply or even state outright that trans people do not have a right to relief.” A more aggressive thesis about attitudes related to transgender access to public bathrooms, is that gender-conforming people find it difficult to accept transgender individuals as

“people” (Stryker, 2008, p. 6).

If Buterman is right about clothing presentation being a major factor in whether gender- conforming people deal well with transgenders, there is a lesson to be learned from ancient

Egyptian king, Hatshepsut. The daughter of a bloodline king and wife of a king-by-marriage,

Hatshepsut found herself in the role of regent, while her stepson matured enough to assume the throne. However, she became a successful ruler in her own right, but presented herself publicly in male accoutrements – male headdress, emblems, and built monuments and statuary with symbolically male decoration. She even wore the traditional fake beard of a pharaoh. It was no secret in 1479 B.C. Egypt that Hatshepsut was a woman, but even so, she held the throne for twenty-one years, during a period that is considered a golden age for Egyptian development. Her fame is less for being a woman than that she openly presented herself in a masculine role

(Brown, 2009). 10

The appearance of gender-conformity does seem to be an important part of whether cisgender (those whose gender identity and assignment are aligned) people accept transgenders.

In the middle of the nineteenth century, some U.S. cities had ordinances that prohibited people from appearing in public “in a dress not belonging to his or her sex” (Stryker 2008, p. 31). That same concept was still articulated in 2012 with a California research report which recommended that police officers to “actually talk with a transgender woman before arresting her to verify if she in fact, is actually breaking the law and not just assume that she is engaging in sex work”

(Galvan & Bazargan, p. 10).

Semantic distortion may explain a significant portion of transgender/cisgender conflict, but empirical research also fills some gaps in understanding. In examination about who cares a lot about transgender bathroom access, Stones (2017) found that males are significantly more emotionally invested in the issue of transgender access than are females. Indeed, men were more likely than women or non-gender conforming people to refuse to recognize transgender females as females at all. Men tend to believe that transgender females are really men who are lying or who are mistaken about their gender. By adopting that belief – that ‘real women’ need protection from ‘fake women’ – cisgender men can view their own role as one of protector and shore up a preference to believe that transgender people are deviant or ill (Stones, 2017). Stones’ data was collected by survey, but also allowed for commentary by participants. The language of the comments is coarse, threatening and reveals a strong emotional reaction to just thinking about female transgender bathroom access. Some examples:

‘I don’t want some guy-turned-girl in a restroom while my wife is in there’

‘If that transgender male walked in on my wife, I would finish his transformation’ 11

‘I hope you and your daughters enjoy sharing bathrooms and changing rooms with well-

hung males who ‘self-identify’ as females’

‘Do you want a man going into a women’s bathroom where your daughter is because he

feels like a woman?’

It is not a large leap of logic to cluster that fear or distaste for transgender ‘others’ with similar fear or distaste of racial and economic ‘others’. The results of this study align with historic assumptions about societal attitudes toward transgender people. Transphobia is stronger and more frequently presented in males and there is a stronger societal pushback when males veer away from gender norms than when females do (Stones, 2017).

No function of government or society commands more interest or investment than schools. That explains why so much of the current discourse about public bathroom access is centered on bathrooms in public schools. Applying the politico-socio-psycho-power battle about bathroom access to the schoolhouse is an especially cruel act. By making schools the battleground, school staff become unwilling enforcers and students become unwilling subjects.

Just one of a vast number of studies that measure components of student wellbeing found that the most important thing to students is safety (Wernick, Kulick, & Chin, 2017). Self-esteem and grades were less important to a student than feeling safe. They also reported that safety included being able to use the bathroom without incident, and without attack, either physical or otherwise.

Other research supports similar findings, but the application of findings concerning subjects’ desire for safety is especially poignant when applied to students because their mobility and agency differs from that of adults.

Mirroring Wernick et al., Seelman (2016) found that college students who were denied

‘space’ either with bathroom access or gender-appropriate housing were significantly more 12 suicidal. This would indicate that colleges should plan accordingly, and that an intentional denial of rights or access should not be the defining bar for consideration of transgender access.

LEGAL CONSIDERATIONS – WITH A LOT OF POLITICS

A heart-felt letter to the editor in the San Antonio Express-News, by a retired teacher who wrote in opposition to proposed bathroom bill legislation in Texas, sharply criticized the hypocrisy of the state motivations for the bill (Dahlberg, 2017). She challenged the case for protecting women by asking how that balanced with defunding health care for women, including gutting financial support for Planned Parenthood. To the question of protecting young men in bathroom and locker room settings, she asked why open urinals were not replaced by stalls for optimum privacy. She also found irony in a Republican bathroom bill, advocated most strongly by the Texas chairman for the Donald Trump campaign. She pointed out that Trump had found no controversy in his own entry into dressing rooms for young women involved in his beauty pageants – and neither did the Texas advocate for the bathroom bill. While not exactly euphemistic, the Texas bathroom bill was certainly marketed behind symbolic language, falsely offered protection to a non-recognized class (women) while discriminating against another

(transgender), was awash in politics, and pretended to be about safety and health at a time when those very parts of the state budget were being cut. The same series of events played out in many other states.

Language often used in bathroom bills centers on safety, with the implication not far below the surface that allowing transgender people to access to bathrooms aligning with their gender identity somehow presents an affront to safety. Oddly enough, the argument against bathroom bills also contains language about safety, but meaning something entirely different.

Almost a decade ago, GLSEN (Gay, Lesbian, and Straight Education Network) reported that 13

87% of transgender students had been verbally harassed at school and 53% had been physically assaulted – because of their gender expression (Greytak et al., 2009).

The North Carolina bathroom bill drew national attention, in part because of the immediate economic pushback. It was like many other state legislature’s attempts to limit transgender bathroom access, but one aspect of the North Carolina bill that made it especially dangerous was that it contained language that, hiding behind interstate commerce freedom to operate, allowed the state bill to override local municipal legislation. That language was referred to as a “cunning trick” in The Washington Post (Guo, 2016). Further, the North Carolina bill contained language that previously had been successful in masking ‘religious freedom’ concerns as license for discrimination. So, by touting the wrong protected class, injecting politics, and falsely citing religious freedom concerns, social conservatives could cloak discriminatory motivation in obfuscatory language – at least for a while.

North Carolina’s bathroom bill also generated rhetoric that paraded much older (and disproved) social theory: that many/most men are potential predators and they will use a transgender access law as a ticket to enter women’s bathrooms with the singular purpose to abuse women and girls (Brodsky, 2016) and that transgenders are so other that they should not be allowed to mingle with ‘normal’ people – language that simply replaces ‘transgender’ for

‘blacks’, ‘Mexicans’ and other demographic groups who have been the targets of social and legal discrimination (Shulevitz, 2016). The dog-whistle language of bathroom bill legislation for public schools is dangerous, not only for the students who are the specified targets, but because the message of tolerated bigotry has the power to expand the original social expression (Doran,

2016). 14

In the majority opinion for Obergefell, the landmark same-sex Supreme Court decision,

Justice Kennedy wrote that “[t]he Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow person, within a lawful realm, to define and express their identity.” That language is unambiguous and does not mask a hidden motive.

Likewise, Harvard law professor Lawrence Tribe has added to the clarifying language:

“Obergefell’s chief jurisprudential achievement is to have tightly wound the double helix of Due

Process and Equal Protection into a doctrine of equal dignity.” (Ulrich, 2016). Almost as soon as

Obergefell was published, though, questions arose: What accommodation was required? Who was required to do the accommodation? In bathroom access, who got the private single-stall bathroom – Gavin Grimm or the students who were offended by his presence in ‘their’ bathroom? Clearly, the right to marry anyone of one’s choice was easier to untangle than where the guests at the wedding could go to the bathroom.

In early bathroom battles, proponents of transgender rights fought against the assignment of non-conforming gender identity as a psychological disorder. The normalcy of transgender people was a major component of the fight for recognition and respect. However, as a purely legal device, some transgender proponents have found the language and provision of disability law to be an effective tool (Schmidt, 2013). Schmidt found that sex, gender, and sexual orientation frequently failed to define a protected class, but GID (Gender Identity Disorder) was, in some cases where the facts were narrowly clustered around medical issues related to bathroom access, and disability law prevailed. While disability law is not an argument of choice for transgender people, and is not without some risk, Schmidt encourages transgender litigators and activists not only to play the game, but “play to win” (Schmidt, 2013).

IF ALL ELSE FAILS, FOLLOW THE MONEY 15

The American presidential election of 2016 inarguably altered the political structure of the nation. In previous election cycles, some level of lip service was given to calls for unity and respect for office or institution, but those social constructs were turned on their collective ear in

2016. One manifestation of that upheaval was the unmasking of partisanship and the energetic and unapologetic pursuit of extreme political and social agendas. The use of public bathrooms was already a bubbling social issue that had kicked off legislative proposals in several states and judicial review at virtually all levels. Generally, the interest in public bathrooms was centered on access by transgender or gender nonconforming individuals, but language and hyperbole reflected the same arguments that had been decided decades earlier concerning the racial integration of public bathroom access.

Economics and North Carolina – What Happens When You Pass a Bathroom Bill

Although it was repealed a year after being enacted, the North Carolina bathroom bill probably got more media attention than other states’ bills because it was early and because it actually passed – unlike Texas’ loudly debated bill that eventually whimpered out at the close of a special session. It would be comforting to believe that good will, rationale thought, good legal arguments, and a true compassion for all people who would be negatively impacted by a bathroom access prohibition law won the political argument, but the real reason that so many of the proposed bills failed or, like North Carolina’s, were repealed is far easier to understand:

Economic threats. Just in North Carolina, economic pushback was remarkable. It included two canceled concerts by the San Francisco Symphony, relocation of the NCAA basketball championships, NBA All-Star Game, Citizen Science Association, Itzhak Perlman cancellation,

National Council of La Raza, Demi Lovato and Nick Jonas, Blue Man Group, UK travel advisory, National Organization for Victim Assistance, Pearl Jam, Cirque du Soleil, and Ringo 16

Starr. In addition to that impressive list of cancellations, Deutsche Bank paused plans to expand its presence in the state, Bruce Springsteen cancelled a show, and PayPal halted plans to open an operations center (WRAL, 2017). It is no surprise that the North Carolina legislature repealed the most odious parts of its HB 2. The entertainment and sports cancellations represent a huge monetary and tourism loss and terrible media optics. The loss of jobs and industry expansion, however, is an even more convincing argument. Even with repeal, the monetary loss in North

Carolina is estimated at over half billion dollars. What is not easily understood, though, is why other states (like Texas) could see the roll out in North Carolina, but nonetheless persisted with attempts to establish their own bathroom access prohibitions.

Economics and Texas – What Happens When You Try to Pass a Bathroom Bill

One of the most eloquent opponents of the Texas proposal was Ron Nirenberg, mayor of

San Antonio. While his city is heavily dependent on tourism, the Mayor found his voice in opposition based on community values, support and concern for school districts, and support of the law enforcement community that denied that equal bathroom access posed a public safety threat (McNeel, 2017). Of course, economics also played a major role in Mayor Nirenberg’s position. An early effort to pass an access prohibition bill failed in the regular session, even though it had strong support from Lieutenant Governor Dan Patrick, who is also the presiding officer of the Senate. Ray Perryman, a leading economist in Texas, was tasked by the San

Antonio Area Tourism Council and Visit San Antonio to quantify to potential economic impact if the proposed bathroom bill were passed. The number he produced were quite convincing, and he did not factor concerts, sports events, and other one-off venues (Perryman, 2017).

The tourism voices, then the tech industry which dominates the economy of greater

Austin and central Texas, then police chiefs spoke out in opposition to the proposed bathroom 17 bill. Their collective rationale, appeal and threat did not deter the Governor and Lieutenant

Governor. Then the big guns spoke: the oil and gas lobby. A collective letter urging the

Governor to drop his support for the proposed bathroom bill included the very top of the powerful business world of Texas: Chevron North America, BP America, CenterPoint Energy,

ConocoPhillips, The Dow Chemical Col, Exxon Mobil Global Services, Halliburton, and SCF

Partners (Ratcliffe, 2017). During the summer of 2017, as the special session plodded along, it became clear that the enthusiasm for a bathroom access bill was centered in the most conservative wing of the Republican party, and without the support of the money and power that is usually at the disposal of Texas Republicans.

Even after watching the NBA abandon North Carolina, Texas persisted until it received its own warning from NBA spokesman Mike Bass, that the NBA selects locations based on an environment where people are “fairly and equally” treated (Barrera, 2017). Basketball is important, but when football talks, Texas listens. NFL spokesman sent the League’s position via email to the Houston Chronicle: “The NFL embraces inclusiveness. We want all fans to feel welcomed at our events, and NFL policies prohibit discrimination based on age, gender, race, religion, sexual orientation, or any other improper standard.” (Boren, 2017). Even the most partisan Republican and most determined conservative bathroom bill enthusiast will not challenge Texas football. Lieutenant Governor Patrick said that he is committed to “making sure that every Texan is welcomed” at sporting events. The Texas bathroom bill was adjusted to allow major athletic functions to be a carve out. It was never fully determined how far the business, entertainment, and sports threats would have gone. Texas legislators, after much talk and bragging about passing a bathroom bill to protect its women and children, went home after the special session, without joining North Carolina in passing a restrictive and ultimately 18 unsustainable bill to limit the capacity of some of its citizens to use public facilities in a manner consistent with their self-identity.

CONCLUSION

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