Opponents of a Texas proposal intended to limit residents to public bathrooms matching the sex on their birth certificate hold out fallout in North Carolina as a warning.
After Tar Heel State Republicans reached a bathroom law curbing protections for lesbian, gay, bisexual and transgender residents, economic losses, mostly tied to boycotts, quickly added up to as much as $201 million, PolitiFact North Carolina confirmed in May 2016. Those fact-checkers later found Mostly False a claim that the law hadn’t hurt the economy. Jobs and money were sacrificed, though even hundreds of millions of dollars in losses wouldn’t greatly dent the state’s economy.
Texas Republicans, including Lt. Gov. Dan Patrick, have pooh-poohed economic arguments against the Texas proposal, Senate Bill 6. Patrick otherwise said in a Jan. 11, 2017, Texas Tribune interview: "But let's say there is some economic impact. Are we for sale? Are our values for sale? I don't think so."
Patrick and state Sen. Lois Kolkhorst, R-Brenham, the proposal’s author, maintained at a Feb. 6, 2017, press conference there’s a meaningful difference between what North Carolina adopted and what they seek.
Kolkhorst said: "This bill is very different from the North Carolina bill in that theirs covers a whole list of things that the Texas Privacy Act does not."
A month earlier, though, the Texas Association of Business called SB 6 strikingly similar to North Carolina’s HB 2 law. Both "ban transgender people from using public school, university and government building restrooms," TAB said in a press release, "and prohibit municipalities from passing transgender-inclusive public accommodations policies."
So, which is it?
Kolkhorst, asked how she reached her assessment, replied with a statement singling out two elements of North Carolina’s HB 2 missing from SB 6.
Specifically, Kolkhorst correctly noted in an email sent by an aide, the Texas proposal has no language affecting worker wages or labor conditions while the North Carolina law does.
Also, Kolkhorst said, North Carolina’s law amends the state’s anti-discrimination law to add a bar on discrimination based on a person’s "biological" sex; that section confusingly goes on to say that it doesn’t give anyone the right to sue about violations under state law. Kolkhorst told us this change "prevents local governments from creating a protected class of people other than what the federal law already provides."
SB 6, we confirmed, doesn’t have a similar provision.
Nearly identical bathroom provisions
On the other hand, the bathroom provisions of the Texas legislation and the North Carolina law struck us as similar, both versions preventing public institutions including schools from letting transgender people enter bathrooms of choice.
For instance, North Carolina’s law requires local boards of education to "require every multiple-occupancy bathroom or changing facility that is designated for student use to be designated for and used only by students based on their biological sex." Similarly, the Texas legislation directs each school district to adopt a policy "requiring each multiple-occupancy bathroom or changing facility accessible to students that is located in a school or school facility to be designated for and used only by persons based on the person’s biological sex."
Also, the North Carolina law and the Texas proposal each says schools aren’t restricted from providing, on request "due to special circumstances," an accommodation including a single-occupancy bathroom or changing facility or the "controlled use" of a faculty bathroom or changing facility.
Equality Texas notes other differences
By email, spokeswoman DeAnne Cuellar provided a spreadsheet showing a provision-by-provision comparison of the two states’ measure.
Cuellar noted that both measures apply to public agencies and schools. "The only difference in application is that under SB 6," Cuellar wrote, "a private entity leasing a publicly owned facility (like a stadium) can set its own bathroom and changing room policies while it is occupying the building."
We confirmed that contrast. Kolkhorst’s proposal, unlike HB 2, says a private entity renting a public building isn’t subject to the bathroom limit. The Texas proposal states that a state agency or political subdivision may not "require or prohibit" a private entity that leases or contracts to use a building owned or leased by the state or a political subdivision from adopting a policy on the "designation or use of bathroom or changing facilities" in the building.
Cuellar suggested another notable distinction, saying the North Carolina law broadly nullifies "LGBT-inclusive municipal nondiscrimination ordinances," while SB 6 limits its restriction to local ordinances that allow transgender residents to enter bathrooms of choice.
We confirmed North Carolina’s law contains that all-inclusive restriction: "The General Assembly declares that the regulation of discriminatory practices in places of public accommodation is properly an issue of general, statewide concern," the law says, so the bathroom directives and "other applicable provisions of the General Statutes supersede and preempt any ordinance, regulation, resolution, or policy adopted or imposed by a unit of local government or other political subdivision of the state that regulates or imposes any requirement pertaining to the regulation of discriminatory practices in places of public accommodation."
Kolkhorst’s proposal is explicit by barring political subdivisions from adopting or enforcing a measure relating to a private entity designating a bathroom or changing facility for particular persons--or not.
Cuellar further told us that SB 6 -- unlike North Carolina’s law, which lacks enforcement provisions -- sets fines that could be levied for violations of the bathrooms mandate. The Texas legislation, we confirmed, says political subdivisions including school districts that violate the law are liable for a per-day fine of $1,000 to $1,500 for the first violation and $10,000 to $10,500 for the second and subsequent violations. On citizen complaint, the proposal says, the state attorney general may sue for payment.
Kolkhorst said her proposed Texas Privacy Act "is very different from" North Carolina’s law "in that theirs covers a whole list of things that the Texas Privacy Act does not."
Both the North Carolina law and the Texas bill mandate policies preventing state and local government entities including public schools from letting transgender residents enter bathrooms of choice.
But the Texas proposal lacks North Carolina’s section on wages and it doesn’t have North Carolina’s language barring anyone from going to state court to allege discrimination due to the law. Also unlike HB 2, SB 6 doesn’t unplug all local ordinances pertaining to discriminatory practices in public accommodation.
On balance, we rate this claim Half True.
HALF TRUE – The statement is partially accurate but leaves out important details or takes things out of context. Click here for more on the six PolitiFact ratings and how we select facts to check.