San Antonio ordinance won’t ‘allow’ men into women’s restrooms

"San Antonio Ordinance to Allow Men into Women’s Restrooms," says an Aug. 15, 2013, email from Texas Values, an Austin-based advocacy group that says it seeks to support "family values."

The email and an Aug. 13, 2013, post on the group’s blog mentioned a new California law giving public school students access to either gender’s sports teams, locker rooms and bathrooms. The blog entry said the San Antonio City Council would soon consider a "similar policy" that "makes it illegal to deny ‘facilities’ because of a person’s ‘gender identity.’ These facilities are commonly understood to include bathrooms, locker rooms, and other changing facilities."

Texas Values president Jonathan Saenz confirmed by phone that the group was referring to a proposed nondiscrimination ordinance that has been hotly debated in San Antonio with religious protests, an effort to recall the councilman who proposed it and 400 people showing up to speak at an Aug. 28, 2013, council meeting. The San Antonio Spurs basketball team and Austin Democratic U.S. Rep. Lloyd Doggett have lent their support to the ordinance; gubernatorial candidate Greg Abbott and other politicians have weighed in opposing it.

The proposal has a broader scope than bathrooms. According to a July 25, 2013, San Antonio Express-News news blog entry, it would consolidate the city’s "hodgepodge" of anti-discrimination policies and add protection for sexual orientation, gender identity and veteran status. PolitiFact Texas wrote about the proposal’s employment protections in a July 26, 2013, fact-check. The council will hear more public comment Sept. 4 and is set to consider the ordinance Sept. 5.

Saenz said his group was referring to Section 2-592 in an Aug. 7, 2013, draft of the ordinance, which said:

A place of public accommodation, the draft said, is any business in San Antonio that’s open to the general public and offers products, services or facilities in return for payment. Among the examples it gives: stores, theaters, bars, restaurants, hospitals, museums and golf courses.

The city issued a revised draft Aug. 28, 2013, that did not change the wording of Section 2-592 but added below it, "Nothing herein shall be construed as directing any policy or practice regarding the use of restrooms, shower rooms, or similar facilities which have been designated for use by persons of the opposite sex."

According to Councilman Diego Bernal, who spearheaded the proposal, neither version would have addressed who could enter which restroom. Rather, he told us by phone, both would protect people from being turned away entirely -- not allowed to use any restroom at all -- based on their gender identity.

We unsuccessfully sought comment from the City of San Antonio’s communications office and city attorney’s office on whether the ordinance would "allow men into women’s restrooms."

Spokeswoman Diedrie Brewton of the city attorney’s office, speaking to us by phone Aug. 30, pointed us to a fact sheet posted in the "last week" on the city’s homepage, www.sanantonio.gov, which says the proposal does "not change any bathroom, dressing room or locker room policies currently in place."

Bernal pointed us to an Aug. 15, 2013, opinion column by Express-News commentator Brian Chasnoff, who wrote that according to city attorney Michael Bernard, because of an appeals court ruling that applies to Bexar County, "if the proposal passes, a business owner in San Antonio would still have the right to stop someone from going into a bathroom — regardless of that person's gender identity."

So the official view appears to be that places open to the public will still be able to prevent men from entering women’s restrooms, or vice versa.

Saenz disagreed, saying, "What the councilman says and what the city attorney says doesn’t say how it will be used." Courts will decide how the ordinance is carried out, he said.

Transgender groups’ swift opposition to the Aug. 28 revision bolsters that view, Saenz said, because their reaction made it clear they expected the ordinance would let them use the restrooms of their choice.

Spokesman Michael Diviesti of GetEqualTX, an education and advocacy group that started a petition protesting the ordinance’s revisions, told us by phone that by specifying bathroom policies would remain unchanged, the Aug. 28 version effectively stripped protection that the Aug. 7 draft offered to transgendered people.

Executive director Katrina Stewart of the Transgender Education Network of Texas, an advocacy and education group whose online fact sheet about the proposal was sent to us by Saenz, told us by phone that Texas Values’ statement was false for a different reason: "Because transgender women don’t identify as men," she said. "They identify as women." Separately, Diviesti said the same.

Overall, Stewart said, the ordinance would not create significant change. "The truth is, there are a large number of transgender people that have been working in San Antonio just fine, and using the restrooms," she said. "For the vast majority of trans people, we just want to go in, go to the bathroom, wash our hands and leave."

Diviesti said that there’s no state law governing bathrooms’ gender designation, so "it’s currently up to business owners" to say who can use which restroom.

Ryan Kellus Turner, general counsel for the Texas Municipal Courts Education Center, also told us by phone there is no Texas law specifically saying whether men or women can enter bathrooms designated for the opposite gender, though other states and some cities have created ordinances addressing such access.

Houston’s municipal code makes it a misdemeanor to enter without permission a public restroom designated for the opposite gender "in a manner calculated to cause a disturbance." City employees, under executive orders issued by Mayor Annise Parker in 2010, can "use restroom facilities in city-owned buildings for the gender with which they identify," according to an April 2, 2010, Houston Chronicle news story.

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Saenz said that antidiscrimination policies in other places indicate how San Antonio’s could be applied, citing a 2012 incident in which Evergreen State College in Olympia, Wash., protected the right of a transgender student who was biologically male to use women’s facilities after a girl saw the student nude in a locker room.

Allowing men into women’s facilities via such policies has "happened in other states; it will happen in San Antonio as well," he said.

The American Civil Liberties Union said April 24, 2013, on its website that while some jurisdictions across the U.S. have specified that denying transgender people access to the bathroom that corresponds to their gender identity is discrimination, courts have also ruled the other way.

A Dallas ordinance protects against discrimination based on sexual orientation at public accommodations’ facilities citywide; similar ordinances in Austin, El Paso and Fort Worth include gender identity as well. Dallas County protects county employees from discrimination and harassment based on sexual orientation, gender identity and gender expression.

Our ruling

Texas Values’ email said, "San Antonio Ordinance to Allow Men into Women’s Restrooms."

We found nothing in law that says San Antonio men can’t go into women’s restrooms now, or vice versa. The City of San Antonio and the councilman who proposed the measure said it won’t change any bathroom policies that are now in place. The city attorney said in a newspaper commentary that an appeals court decision means a San Antonio business owner would still be able to prevent someone from entering a bathroom, regardless of that person’s gender identity.

We rate the group’s statement as False.

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FALSE – The statement is not accurate.

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