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Legislation shows continued turmoil over LGBT rights
Dan Patrick, lieutenant governor of Texas and supporter of North Carolina's so-called bathroom bill, unveiled on Jan. 5 similar legislation in Texas. The proposed law and reaction to it reflect ongoing controversy in the nation over the rights of lesbian, gay, bisexual and transgender (LGBT) people.
Patrick Welcomed Collapse of H.B. 2 Repeal
North Carolina's H.B. 2 prohibits people whose gender identity differs from their birth gender from using bathrooms that correspond to their gender identity in publicly owned buildings. North Carolina's legislation led to a firestorm of criticism and cost the state nearly $1 billion in economic revenue after companies reacted by canceling plans to expand, organizations relocated events and celebrities canceled concerts, according to the Texas Association of Business, which opposes Texas' similar legislation, S.B. 6.
When North Carolina Gov. Pat McCrory lost re-election, it was widely assumed that his narrow loss was due to the bathroom bill. Newly elected N.C. Gov. Roy Cooper and Charlotte, N.C., Mayor Jennifer Roberts, among others, sought to piece together a compromise that would lead to the repeal of H.B. 2.
But when the compromise fell through, Patrick said on Dec. 22, 2016, "I congratulate the conservative legislators in North Carolina and the leadership of my good friend, [N.C.] Lt. Gov. Dan Forest, for standing firm on principle and public safety. Legislation like this is essential to protect the safety and privacy of women and girls, and is simple common sense and common decency." Forest opposed the compromise and encouraged North Carolina legislators to reject it.
"The left and the liberal media who oppose this legislation don't understand it, but the people do. This is not discrimination against any individual or the targeting of any group," Patrick added.
Texas S.B. 6, the Women's Privacy Act, mandates that transgender people must use the bathroom of their biological gender.
[SHRM members-only toolkit: Employing Transgender Workers]
"The bill is strikingly similar to North Carolina's H.B. 2 law," the Texas Association of Business said in a statement. "Both pieces of legislation ban transgender people from using public school, university and government building restrooms and prohibit municipalities from passing transgender-inclusive public accommodations policies."
But Michelle Phillips, an attorney with Jackson Lewis in White Plains, N.Y., told SHRM Online that the Texas law is "broader in scope." If enacted, the Texas attorney general could collect civil penalties: $1,000 to $1,500 for a first violation; $10,000 to $10,500 for a second violation. Each day of a continuing violation constitutes a separate violation, she noted.
There also are criminal penalties for violations of the statute. These increase the punishment for an offense in a public bathroom to the punishment prescribed for the next higher category of offense for a wide range of crimes, including:
If the offense is a first-degree felony, the minimum term of confinement is increased to 15 years.
Safety and Privacy
The justification for the bill is the safety of women and girls in public restrooms, noted Nathaniel Glasser, an attorney with Epstein Becker Green in Washington, D.C. "However, there is no evidence to indicate that allowing people to use the bathroom that corresponds to their gender identity jeopardizes the safety of women or leads to increased sexual assault in those places," he added.
But Mat Staver, founder and chairman of Liberty Counsel, a conservative legal organization based in Orlando, Fla., commended Patrick for supporting the Woman's Privacy Act. He said the law's proponents "are upholding their responsibility to protect the privacy, safety and dignity of citizens in intimate settings like showers and locker rooms, where persons will be in various stages of undress. It is common sense that no one should expect young girls or women to undress and be exposed to males in public facilities." He noted that his organization has offered assistance in 24 states with similar "bathroom bills."
However, transgender people have greater safety concerns, according to Phillips. "The unfortunate reality is that the transgender individual is overwhelmingly much more likely to experience violence and harassment in the restroom," she said. "The fallacy that women would be exposed to males in public facilities is based on an incorrect assumption and complete misunderstanding of gender identity. In these situations, a cisgender woman would not be exposed to a 'man' but rather would be using a common facility with a transgender female for its intended use. Of course, if there were any straight males posing as transgender females, they would not be permitted to use the restroom or locker room for any improper purpose." A cisgender individual's birth sex corresponds with their gender identity.
A recent survey by the National Center for Transgender Equality in Washington, D.C., found that 12 percent of transgender people were verbally harassed in public restrooms within the previous year, 1 percent were physically attacked and 1 percent were sexually assaulted. Nine percent said someone denied them access to a bathroom.
"Every state has laws against sexual assault, indecent exposure and similar crimes, which would cover unlawful activities," said Mark Phillis, an attorney with Littler in Pittsburgh. "There is no evidence that there is an increase of such crimes in the 20 states and the District of Columbia that have laws prohibiting discrimination based on gender identity and expression where individuals are permitted to use the restroom corresponding with their gender identity."
Chris Wallace, president of the Texas Association of Business, said, "Senate Bill 6 is discriminatory and wholly unnecessary legislation that, if passed, could cost Texas as much as $8.5 billion in GDP [gross domestic product] and the loss of more than 185,000 jobs in the first year alone." The group noted the economic harm that North Carolina suffered from boycotts following the enactment of H.B. 2, expressing concern that Texas would face similar boycotts.
If S.B. 6 is enacted, Todd Solomon, an attorney with McDermott, Will & Emery in Chicago, said that he would expect boycotts similar to the ones against North Carolina "as this is still a hot-button issue in the entertainment and sports worlds." He added, "It will be interesting to see if the financial ramifications of sports and entertainment boycotts move the needle in Texas the same way they did in North Carolina."
"I would expect a similar reaction from the business community, entertainers and municipalities in future boycotts as occurred in North Carolina," Jackson Lewis' Phillips said. "The only difference is that the stakes are much higher in Texas."
"Employers should be prepared to have their employees ask them to take a stance on these issues to demonstrate their commitment to workplace equality for their LGBTQ [LGBT and queer/questioning] employees," Littler's Phillis said.
Turmoil over LGBT Rights
"The [Texas] bill signals that the status quo is far from settled as to the right of LGBT individuals in the United States," said Sam Schwartz-Fenwick, an attorney with Seyfarth Shaw in Chicago. "It reflects the backlash to civil rights gains that has happened time and again in this country. Where things settle is very far from certain."
Despite strong opposition from various businesses, the Human Rights Campaign and other LGBT advocacy groups, Phillips thought the chances of S.B. 6's enactment in Texas were good, "given the fact that the Republicans who favor this legislation control the state legislature, the lieutenant governor's office and the governor's office."
But Phillis predicted that the business community and LGBTQ advocacy organizations would successfully oppose S.B. 6. "According to the ACLU [American Civil Liberties Union], in 2016 alone, there were over 100 separate anti-LGBTQ legislative proposals, and all but a handful were defeated," he noted.
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