Mackowiak: Compromise bathroom bill threads the needle


Perhaps it is a sign of how much our culture has changed that a simple notion — that boys and girls should not shower together in schools — is considered controversial.

The so-called “bathroom bill,” which seeks to prevent the mixing of boys and girls in our schools, passed the Texas Senate under the able leadership of state Sen. Lois Kolkhorst (R-Brenham).

That bill was effectively considered dead by Texas House leaders, including Speaker Joe Straus, who poured cold water on it every chance he could.

Straus (R-San Antonio), was understandably concerned that the National Collegiate Athletic Association could threaten to move the Final Four from the Alamo City if the bathroom bill passed.

This was not an unreasonable concern, as the NCAA issued numerous threats to a more stringent and broad law that passed in North Carolina, although that law was recently repealed in a compromise agreed to by the state’s new Democratic governor, thus avoiding future NCAA protests.

In the past month in Texas, we have seen three significant developments:

• A compromise bill offered by state Rep. Ron Simmons (R-Carrollton) effectively pre-empts local cities and school districts from setting their own bathroom guidelines as they relate to boys and girls. This would put an end to the kind of social activism that we have seen in school districts in Fort Worth and Dripping Springs in the past year after President Obama’s executive order.

• On April 18, Gov. Greg Abbott, who has been cautious on this issue, called Simmons’ effort “thoughtful,” then announced his public support via Twitter for “the principles of both the Senate and House to protect privacy in bathrooms” and further promising to “work to get a bill to my desk.”

• Perhaps the most important development came earlier. On March 17, Tom Giovanetti, an influential conservative and president of the Institute for Policy Innovation, penned an opinion column for The Dallas Morning News that offered his creative solution. Giovanetti set the scene like this: “Despite more pressing concerns, the Texas Legislature has backed itself into a corner on the ‘bathroom bill,’ which purports to determine which bathroom should be used by transgender people. A massive political confrontation is in the offing. Social conservatives and Lt. Governor Dan Patrick see it as a test of morality and public safety vs. meddlesome outside business interests, while business interests view it as unnecessary friction and the kind of national attention Texas doesn’t need. Many observers expect the bill to ultimately fail, which means political capital will be spent and blood spilt without accomplishing anything.”

Giovanetti offered a constructive solution that wouldn’t turn national business interests against Texas: “Caught up in the ecstasies of social justice do-goodism, the city of Charlotte, N.C., created a protected class, transgender people, and awarded special privileges to that class. The real offence isn’t about bathrooms or transgendered persons; it’s about municipalities creating protected classes and awarding them special protections. That’s why the solution to this controversy is not for Texas to create unenforceable new statutes determining who uses which bathroom.”

Giovanetti’s game-changing insight was this: “Because the state creates its municipalities, the authority of a state to pre-empt municipal mischief-making is unquestionable, though the myth of the sanctity of local control has been a powerful sword that cities have wielded for decades … The solution is a bill that simply states, in appropriate legislative language, that municipalities in Texas may not pass ordinances that have the effect of creating protected classes or conferring protections or benefits on protected classes. That solves the bathroom problem without incurring all of the unnecessary damage, failure and blowback.”

In the weeks since Giovanetti wrote this widely read and shared column, legislators in the House picked up his idea and made it their own.

Ultimately, the House and Senate will have to agree on one version of the bill through a conference committee.

But whereas once this issue seemed impossible to solve politically, now there is light at the end of the tunnel.

Mackowiak is syndicated columnist, an Austin-based Republican consultant and a former Capitol Hill and Bush administration aide.



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