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March 17, 2017

How the Texas Legislature Can Solve the Bathroom Bill Dilemma Without Using the Words 'Bathroom' Or 'Transgender'

  Dallas Morning News

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.  

I'd like to challenge everyone to pause and do a rethink. There is, in my view, a constructive way out of this conundrum that would solve the real problem without turning national business interests against the state of Texas.  

There was no national controversy over which bathrooms are used by the tiny, 0.3 percent of Americans who identify as transgender until government created one. 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. Who is going to stand outside public restrooms demanding that we drop our trousers and show the goods in order to be admitted to the restroom?  

The real solution is for the state to prevent this kind of social justice crusading by municipal do-gooders. Tasked with making sure building permits are awarded and garbage is collected, municipal governments too often aspire to more heroic endeavors, like solving society's sexual and gender problems, creating city-owned broadband networks, banning fracking, regulating Uber and Airbnb out of operation, and the like. Too often, municipalities operate as if they are sovereign city-states, and think they can do whatever they like so long as 50 percent +1 of the city council or residents approve.   

But municipalities are not sovereign. Because the state creates its municipalities, the authority of a state to preempt 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 broader, better solution to Texas' bathroom conundrum is legislation that doesn't even include the words "bathroom" or "transgender." Rather, 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.  

It will also preclude municipalities from all sorts of unanticipated future social justice mischief-making, and as a bonus also bar discriminatory policies like set-aside contracts for members of specific racial, ethnic or sexual groups.  

The state of Texas has a compelling interest in protecting its residents against municipal actions that erode economic and social freedom, including municipal do-gooders. Cities are not sovereign, and local control is a tool, not a governing principle. I encourage the legislature to craft alternate legislation that is at the same time broader and better than the well-intended but wrongly targeted bathroom bill.  

And as to who uses which bathroom, we can sort that out for ourselves, as we always have.  


 

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