Houston is embroiled in a culture war over bathrooms.
On Nov. 3, when voters in the nation’s fourth-largest city will decide on a new mayor, as Democrat Annise Parker, the first openly lesbian mayor of a large U.S. city, steps down after three terms, they will also vote on a referendum to keep a law banning discrimination in access to public facilities, including on the basis of gender identity.
The Houston Equal Rights Ordinance, or HERO, which was approved in May 2014 by Houston’s city council, addresses discrimination in housing, public and private employment and public accommodation across 15 different characteristics including race, sex, marital status, sexual orientation and gender identity. Religious groups are exempt, but violators can be fined up to $5,000.
The law, known locally as the “bathroom ordinance,” has become controversial because an early version of it included language guaranteeing Houstonites the use of bathrooms or locker rooms that matched their gender identities — a nod to the transgender community. While that specific language was ultimately removed, the law still protects the right of transgender people to use facilities appropriate to their gender identity.
The Houston Area Pastors Council began gathering signatures for either a referendum or a repeal of the ordinance on June 1, 2014, spurring a year-long legal battle. In July 2015, the Texas Supreme Court ruled that Houston must either repeal the ordinance or put it to a public vote. It is listed on Tuesday’s ballot as Proposition 1.
Opponents of the law say it would “open thousands of women’s restrooms, showers and girls locker rooms in the city to biological males,” who could “use it as cover to violate our women and children,” according to No Unequal Rights, a coalition of area ministers.
Campaign for Houston, a group whose spokesman Jared Woodfill is the former chairman of the Harris County Republican Party, is urging Houstonians to vote “no” on the proposition. It has released a controversial television ad featuring a young girl who walks into a restroom and is startled by a man who corners her in a bathroom stall. “Even registered sex offenders could follow women or young girls into the bathroom, and if a business tried to stop them, they’d be fined,” a voiceover in the ad says.
Former Houston Astros baseball player Lance Berkman said in an ad for the campaign against the bill that voters ought to bar “troubled men” who “claim to be women” from entering women’s bathrooms, “rather than waiting for a crime to happen.”
LGBT advocates say the Campaign for Houston is operating on misinformation, and that it exhibits “a willful ignorance of what it means to be transgender.”
The campaign did not return Al Jazeera’s emailed request for comment.
The Human Rights Campaign, a national civil rights group based in New York, told Al Jazeera in an email that other cities in Texas such as Dallas, El Paso and San Antonio have passed similar non-discrimination ordinances and haven’t seen any reported incidents of men lurking in women’s bathrooms. More than 200 U.S. cities and counties have passed similar non-discrimination ordinances, which add protections beyond those offered by the Civil Rights Act of 1964 and its amendments.
“The opposition has been using fear-mongering,” said Human Rights Campaign spokesman Stephen Peters in an email. “It's a vitally needed local tool to help protect people when they are treated unfairly, without making them jump through the hoops of filing a federal lawsuit or bearing the burden of a costly, drawn-out legal battle.”
Other prominent supporters of the ordinance include tech giant Apple and Democratic presidential candidate Hillary Clinton.
Chuck Smith, executive director of Equality Texas, an Austin-based LGBT advocacy group, says the controversy over HERO may be part of a larger backlash against gay rights, in reaction to the Supreme Court ruling in June on same-sex marriage.
Texas lawmakers have floated 20 pieces of anti-LGBT legislation this session, according to the Human Rights Campaign.
“We had not seen anything like that in almost 20 years,” Smith said.
Battles over transgender bathroom access have flared in other cities and states, and playing on fears of transgender people is a common tactic. In February Florida lawmakers proposed a bill, applying to any sex-segregated public facility, that would require people to use the facility corresponding to their gender at birth. The text of the bill cited single-sex restrooms as "places of increased vulnerability" that "present the potential for crimes against individuals using those facilities, including, but not limited to, assault, battery, molestation, rape, voyeurism and exhibitionism."
“Unfortunately, when people are frightened, and they’re operating in a position of fear, sometimes it doesn’t matter if it’s a rational or an irrational fear,” Smith said.
If the predatory bathroom scenario suggested by opponents ever did happen, it would still be a criminal offense under a separate city ordinance that makes it illegal to enter any sex-segregated public restroom “in a manner calculated to cause a disturbance.”
"On the face of it, that's a crime," Houston Police Chief Charles McClelland told Houston’s ABC13 News. Even if HERO is approved, he added, "Nothing will change about the violation of the law.”