Herman: Again, Texas’ bathroom bill a solution in search of a problem


One of the more anticipated summer re-runs at Your Texas Capitol aired Tuesday as GOP senators, against the advice of cops, advanced the bathroom bill. That’s the thing with reruns — they always come out the same.

Or do they? We’ll find out when the bill gets to the House. During the regular session, the House OK’d a version that Lt. Gov. Dan Patrick said didn’t do enough to protect girls and women from crimes perpetrated by men posing as women to get in the female bathroom.

RELATED: Austin police chief speaks out against Texas bathroom bill

Let’s get this out of the way first. I think the bill is unnecessary, not because the topic isn’t part of a broader topic that must be addressed, but because I believe this part is best handled locally, as it has been to date.

It’s easy for some to laugh about legislating about who goes to which government-owned bathroom (and let’s remember this bill also involves school locker and shower facilities), but we err if we think it’s unrelated to a larger, important discussion. As our notion of gender undergoes transformation, there are many questions for lawmakers and courts to sort out, including those regarding college scholarships, sports, awarding of government contracts and attendance at single-gender schools.

FYI, the summer version of the bathroom bill is broadened to require high school athletes to compete in the gender on their birth certificates.

Embedded in this legislative discussion is the difference between prevention and prosecution. The former is intended to protect people. And the problem with the latter is that to have a prosecution you have to have a crime and a victim. Prevention is far preferable to prosecution. Opponents of this bill say there already are laws for prosecuting people who commit crimes in bathrooms. The problem with that is it means there has to be a victim or victims. Prevention, the goal of bill supporters, is better. In offering the bill Tuesday, Senate sponsor Lois Kolkhorst, R-Brenham, pitched it as an “opportunity to shut down predators and voyeurs.”

Yes, prevention is better than prosecution, but it can be misguided and ineffective, a point made at the Capitol Tuesday by top cops from around the state who said there’s no evidence of crimes committed in female bathrooms by men posing as women. Houston Police Department Chief Art Acevedo, formerly Austin’s chief, was among law enforcement officials who gathered outside the Capitol to scoff at what was going on inside.

“We already have laws on the books that deal with any crime that can potentially happen in the bathroom,” Acevedo told me.

SUMMER SESSION: On bathrooms, Boy Scouts, Trump, Abbott, Patrick, Straus and McRaven | First Reading

I pushed him about the value of prevention over prosecution. He said he’s seen no evidence of anything that needs preventing. I mentioned the occasional occurrence of cameras secreted away in female bathrooms. Acevedo said there is no history of those being placed by men dressed as women for the sole purpose of planting a camera.

“Quite frankly,” he said, “the couple I can remember are usually maintenance people that were able to get in there lawfully and sneak in a camera.”

Law enforcement official after law enforcement official said Tuesday there’s no evidence that there’s a problem caused by men masqueradings as women to commit crimes in bathrooms. But bathroom bill backers seem to sincerely think this is about crime prevention.

“It’s not discriminating against anyone,” Patrick told the conservative Texas Public Policy Foundation last week. “I don’t want sexual predators masquerading as being transgender to enter into a bathroom to follow a little girl or somebody’s wife or somebody’s daughter — as we have case after case already happening now — without that law.”

Acevedo and the other cops said Tuesday they’re unaware of those cases. Later Tuesday, in floor debate, pressed to offer an example of a case in which a man posed as a woman to commit a crime in the female bathroom, Kolkhorst balked, saying instead her concern is about a man saying he feels like a woman just for the purpose of committing a crime in a female bathroom.

“That’s not what this bill is about,” said Kolkhorst, referring to crimes committed by men posing as women. “It’s about setting certain expectations” about who is in which bathroom.

And there was this last week, warmly received in the room, from Patrick in his peroration to the conservative Texas Public Policy Foundation: “I’m proud of the Republican Party of Texas. I’m proud of the Legislature. Because at the end of the day, people come to Texas because they think this is a place I can come because it reminds me of the way America used to be.”

That last part is in the ear of the beholder. For some, especially white heterosexual Christian males, “the way America used to be” was great. For too many, it was something to mournfully sing about overcoming as we continue to struggle to become a more perfect union.

“We are allowing fear to guide public policy and we are justifying discrimination,” Sen. Kirk Watson, D-Austin, said in opposing the bill.

In this debate, some might hear a discussion about prevention and prosecution. Some might also hear prejudice.



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