How The Texas 'Bathroom Bill' Compares To North Carolina's Revised Law

Apr 5, 2017

Texas Republicans followed North Carolina’s lead earlier this year in unveiling their own “bathroom bill.” Since then, supporters have described the Texas bill as similar to the North Carolina law yet different in important ways.

But amid public and economic backlash — and reportedly a deadline from the NCAA to avoid losing future championship games — North Carolina lawmakers voted last week to revise their controversial bathroom law. 

Senate Bill 6, the measure filed in Texas, would regulate bathroom use in governments buildings based on “biological sex,” keeping most transgender people from using bathrooms that align with their gender identity. The proposal would also pre-empt local nondiscrimination ordinances that allow transgender Texans to use public bathrooms that correspond with their gender identity.

Texas Republicans leading the charge in support of the bathroom regulations have likened their objective to North Carolina’s intentions of promoting public safety. And following changes to the North Carolina law, they’ve argued that the new measure is now even more closely aligned to SB 6.

In fact, the Texas proposal shares elements of both the original North Carolina law as well as the revised version approved last week by the Tar Heel State’s lawmakers. While the NCAA announced Tuesday that it would “reluctantly” consider North Carolina for future championship games in light of the state’s updated bathroom regulations, it is not clear what that means for how the college sports oversight association would view the Texas bill if it becomes law.

LGBT advocacy groups have decried both the revised North Carolina law and the Texas bill as discriminatory against transgender people.

But how exactly does the text of SB 6 compare to North Carolina’s updated bathroom regulations? Here's a look at how the two measures stack up:   

Bathroom Regulations

Texas: Republicans’ proposal would require government entities, such as state agencies, public schools and public universities, to regulate bathroom use on the basis of “biological sex” as listed on a birth certificate. This would ban the majority of transgender Texans who have not amended their birth certificates from using the bathroom that matches their gender identity.

North Carolina: Among the most prominent similarities between the measures, North Carolina’s original law also included bathroom regulations based on “biological sex.” That language has since been gutted and transgender individuals are no longer specifically prohibited from using a bathroom that aligns with their gender identity. The state’s new law more simply prohibits state agencies, municipalities and school boards from regulating multi-stall bathrooms.

The bottom line: Both measures could still stand in the way of local entities implementing trans-inclusive bathroom policies. The Texas proposal would ban most transgender Texans from using the bathroom of the gender with which they identify. The North Carolina law no longer includes specific regulations that would regulate which bathroom transgender people can use, but it still prohibits the creation of local policies, leaving bathroom regulations to the state.

Local Nondiscrimination Ordinances

Texas: The bill's current language preempts local nondiscrimination ordinances that protect transgender Texans from discrimination in public accommodations. Those ordinances allow bathroom access based on gender identity in businesses that serve the public. While those ordinances also protect transgender Texans from discrimination in employment and housing, SB 6 would only apply to bathroom use.

North Carolina: That state’s original law went further than the Texas proposal because it prohibited municipalities from extending any discrimination protections to cover LGBT people and set a statewide policy for protected classes that didn’t include sexual orientation or gender identity. But that has since been repealed. Instead, the state’s new law enacts a three-year moratorium on local ordinances that would regulate private employment practices or public accommodations. That includes ordinances that would allow transgender people to access to bathrooms based on gender identity.

The bottom line: Both measures would still prohibit local governments from enacting trans-inclusive bathroom policies.Texas' SB 6 prohibits local governments from adopting ordinances to regulate bathroom access and invalidates current ordinances protecting bathroom access by transgender people. While North Carolina revised their original law to only prohibit new ordinances regulating public accommodations through December 2020, the law still outlaws any local bathroom regulations.

Places Where Law Is Enforced

Texas: The current language in SB 6 would enforce bathroom regulations in public schools, government buildings and public universities. However, stadiums, convention centers and entertainment venues owned or leased by a government entity would be exempt from bathroom regulations. In theory, if a private association, business or sports league leases out a publicly owned venue, the state or local governments that oversee that venue would have no say in their bathroom policies under this provision even though SB 6 would require them to follow state bathroom policies for other public buildings.

North Carolina:  There is no law that explicitly states what bathroom transgender people can use in the state’s public facilities — including public schools and universities, state agencies and local government offices — but those entities are now barred from setting their own bathroom policies. Under the replacement law, private businesses are still allowed to set their own policies relating to bathroom use.

The bottom line: Bathroom restrictions in Texas would apply to government buildings. North Carolina no longer has explicit bathroom restrictions but it outlaws local policies.

Penalties

Texas: SB 6would allow the Texas Attorney General to fine “a school district, open-enrollment charter school, state agency, or political subdivision” a civil penalty between $1,000 and $10,500 per day if their bathroom policy is found to be out of step with the legislation. The bill does not impose any specific penalties on individuals who use a bathroom that doesn’t correspond to their biological sex.

North Carolina: Using the bathroom that does not align with one’s biological sex is not considered an offense under North Carolina’s revised law, which also does not outline penalties for those who don’t comply.

Following HB 2’s repeal, two North Carolina Republican legislators said they’d file a bill to create a harsher punishment for people charged with trespassing in the bathroom of the opposite sex. The proposed bill would “specifically state it is a second-degree trespass for entering the restroom or changing room of the opposite sex; secondly, it would enhance the punishment from what is now a class 3 misdemeanor punishable up to only 10 days, to a class 1 misdemeanor, punishable up to 120 days in jail,” one of the lawmakers wrote in a Facebook post.

The bottom line: While North Carolina has never outlined bathroom-related penalty mechanisms, the Texas proposal targets governmental entities and not individual people.

Enforcement

Texas: For penal action to take place, an individual would have to first provide a written notice to the school district or governmental entity describing the violation and then file the complaint with the AG’s office if the district or entity does not “cure the violation” before the end of three business days. The AG's office would then decide whether to investigate.

North Carolina: Neither the repealed North Carolina bathroom law nor its replacement include enforcement provisions.

The bottom line: The current draft of the Texas bathroom bill carves out how to report entities that do not comply with the proposed law, whereas North Carolina’s law does not.

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From The Texas Tribune