Proponents of the bathroom bill often paint it as a necessary safeguard against violent men masquerading as women. The legislation, more formally known as Senate Bill 3, would limit access to restrooms at public schools and government buildings to the sex listed on a person’s birth certificate or driver’s license. Even though no instance has been found of a sex crime being committed in a bathroom by a transgender person, every male sex offender in a bathroom becomes one more excuse for the legislation’s champions—no matter how much the facts have to be twisted to fit the bill.

As the Senate State Affairs Committee heard ten-plus hours of testimony on SB 3 recently, one witness caught my ear. Cindy Asmussen—an ethics and religious liberty adviser for the Southern Baptist of Texas Convention and legislative director of Concerned Women For America—detailed for the committee an attempted rape of a child in a public library bathroom last September. Asmussen warned that female children across Texas will be open to predators if the legislation does not pass. Here is her testimony:

“Last fall, an eight-year-old girl was in an Austin public library restroom when a man came in and locked her in the stall. This is after he had made an attempt to kidnap another young girl in the restroom earlier in the day. The eight-year-old girl was able to scream before the suspect tightly covered her mouth with his hands. Someone thankfully heard her and went into help the girl before she was raped, but in a matter of seconds, he had already undressed her from the waist down and had pinned her down on his lap. The man told law enforcement he was not fast enough to take the child’s clothes off and said if he had just a few more minutes he could have raped her three times. Even though we already have laws that deal with sexual crimes, the issue here is that no one questioned the fact that this man was entering a women’s restroom. We cannot become desensitized to this.”

The North Village Branch Library, where this occurred, isn’t far from my house—but my memory of the incident differs from Asmussen’s. So I went to the Travis County District Court Clerk’s office and pulled the files on Hubert Justin Powell, the man who has been indicted in the incident. I will not be reproducing the documents here for you, because they contain the names of the children.

According to the files, the first attempted kidnapping did not occur in the bathroom, as Asmussen contended, but in the reading room. There, Powell allegedly picked up the first girl, but dropped her when she yelled out for help. The girl told her father what happened, and he decided they needed to leave immediately. At the check-out line, Powell allegedly grabbed the girl again by the wrist. Her father said, “Don’t touch her” and then hustled her out of the library. Once in the car, the girl started crying. The father, realizing the situation was probably worse than he initially sensed, pulled over and called the police.

Hubert Justin PowellAustin Police Department

In the meantime, the same man—who witnesses described as looking like a “homeless guy” and wearing a grey hoodie and tattered grey pants—followed an eight-year-old girl into the bathroom without being detected. When she came out of a stall, he pushed her back in. She screamed, and several people ran toward the bathroom. The girl’s father waited outside while a woman—it is unclear whether she was a patron or a library employee—rushed into the bathroom. The stall door would not open, but through the crack, she saw a man leaning against the door with his feet propped against the toilet. He was holding his hands over the girl’s mouth. The woman shouted at him to let the girl go as she reached under the stall to grab the girl’s hands and pull her to safety. The man tried to keep the girl from being pulled away by grabbing her shorts, which came down as the woman pulled the girl free. The woman then ran outside the bathroom with the little girl and handed her to her waiting father. Patrons blocked the bathroom door so the man could not get out until police arrived.

Parts of Asmussen’s account did match the police report, but it’s missing key context. Powell told police that in both of the instances he was trying to get “the virgin” to go with him, adding that he only was trying to put the eight-year-old to sleep but then “she floated away.” He also told police that he would have raped the girl three times and then would have “walked her home.”

On September 24, 2016, a Travis County grand jury indicted Powell on charges of attempted aggravated kidnapping and aggravated kidnapping. In December, Powell was found mentally incompetent to stand trial and was ordered to confinement at a mental health facility.

Because Asmussen held this up as an example of why we need the bathroom bill, let’s break down the facts of this case and how it relates to Senate Bill 3.

  • As a publicly owned library, the restrictions of Senate Bill 3 would certainly apply.
  • The assailant was a man. He was not transgender, nor was he dressed like a woman.
  • The library staff did not allow the man to go into the women’s room. He entered unnoticed.
  • Under SB 3, the Texas attorney general can go to court to get a writ of mandamus against a government body that does not keep someone out of gender-appropriate bathroom, which would have meant that the attorney general needed to go to court in the minutes between the two assaults had they both actually occurred in the bathroom.

In short, nothing about Senate Bill 3 would have prevented the assault from happening.

Asmussen seems to acknowledge a point often argued by bill’s proponents at the end of her testimony. “Even though we already have laws that deal with sexual crimes, the issue here is that no one questioned the fact that this man was entering a women’s restroom,” she said. “We cannot become desensitized to this.” As I already noted, it isn’t that no one questioned a man entering the women’s restroom. It’s that no one saw it happen.

As for the the public becoming “desensitized,” is seems that Asmussen has forgotten that bathrooms have, indeed, been a focal point for sexual predators and activity. In the days when the LGBT community was completely in the shadows, people often met in bathrooms for sex. In the midst of the 1964 election, President Lyndon Baines Johnson’s close aide Walter Jenkins was arrested with another man in a YMCA bathroom. In one of the Johnson tapes, the first lady can be heard telling the president to show Jenkins compassion and loyalty. Johnson said that was impossible.  “The average farmer just can’t understand your knowing it and approving it or condoning it,” he said. But privately, Johnson said the family could support Jenkins by “giving him anything and everything we have.” Five days after the scandal broke, the Reverend Billy Graham called Johnson. “You know, when Jesus dealt with people with moral problems, like dear Walter had, he always dealt tenderly … I just hope if you have any contact with him, you’ll give him my love and understanding.”

But there were far more serious and tragic incidents. At about 4:30 a.m. on November 12, 1986, the body of William Edward Schiffers was found in a burning Jeep Cherokee at the north Interstate-35 rest stop near Kyle. Schiffers—a 39-year-old man who was believed to have gone to the rest stop looking for sex—had his hands bound behind his back with bailing wire and hit in the head with a blunt object. Schiffers was placed in the front seat of the Jeep, and someone set fire in the back seat. Schiffers died of smoke inhalation. Today, we don’t know if this was a hate crime, a hook-up gone wrong, or a robbery, because the murder has never been solved. But more than a decade before Matthew Shepard was murdered in Wyoming, triggering a national debate over hate crimes against the LGBT community, Schiffers’s death at a Texas rest stop was barely a blip in the Texas news media.

No one talks about the man, possibly targeted for his sexual preferences, killed at a roadside bathroom. Nor does the kind of riotous attention go to the transgender woman from Texas killed during Mardi Gras in New Orleans, or another who was murdered in San Antonio this summer. The Human Rights Campaign reports that seven transgender people have been killed in Texas since 2013.

Opponents of SB 3 argue that, rather than a man dressed as a woman committing a sex crime in the women’s restroom, it is far more likely that a transgender woman will be attacked if forced to use the men’s room. But as with the Asmussen’s testimony, supporters use every crime committed by a man in a women’s room as proof that the bill is needed, often framing it as an invasion of privacy. One group, Texas Values, has tracked what they refer to as privacy violations in the state. Some of the incidents listed occurred at Macy’s, Victoria’s Secret, Petticoat Fair in Austin, Target, and a Ross department store—none of which are covered by the bathroom bill, because it only applies to government-owned buildings.

One item in the Texas Values list is entitled “Female inside boy’s restroom,” dated March 24, 2016. “A gender-fluid high school student was bullied on social media after a picture of her using the boys bathroom was tweeted by another student,” the story opens. But any similar stories might soon become a crime under David’s Law, a new Texas provision to prevent cyberbullying, which takes effect September 1. The same Senate Republicans who voted for passage of the bathroom bill in the current special session earlier this year unanimously voted in favor of David’s Law. Public school officials could find themselves moving from accommodating transgender students’ bathroom and changing room needs to protecting them from cyberbullying.

Overall, the push for the transgender bathroom bill is coming primarily from fundamentalist Christian political groups, and it only rose in importance for them after the U.S. Supreme Court legalized same-sex marriage in 2015. In their rhetoric, they often position themselves as the victim of a LGBT agenda rather than as the promoter of potential discrimination against transgender people.

During the course of the Senate hearing on SB 3, U.S. Pastor Council of Texas President Dave Welch noted that he had distributed to senators a letter signed by more than 750 ministers in favor of a bathroom bill.  “The privacy, safety and freedom of our women and children are not for sale at any price,” the letter reads. “Aggression against these universal rights has been inflicted by local ordinances such as those passed in some schools and cities in Texas by creating vague new and undefinable ‘characteristics’ representing one-tenth of one percent of the population who suffer gender confusion that supersede the rights of the ninety-nine and nine-tenths percent.”

Welch’s ministers wrote that an anti-discrimination ordinance “creates special status for a fluid state of mind such as ‘gender identity’ … and attempts to legally place it equal to immutable characteristics such as race.” But in a small Texas city of 15,000—in the middle of Republican red Texas—I found a sermon from a pastor who urged his congregation to put love into their hearts for the LGBT community. Although the sermon does not address the bathroom bill, it does discuss how the community should react to the U.S. Supreme Court decision legalizing same-sex marriage. Here is the pastor’s sermon, in part:

I wrestled as to whether or not to speak to this directly.  “It will be easier and safer to avoid it,” one voice said. But my pastor’s heart counseled otherwise. And now in my thirty-seventh year of parish ministry, I find myself less and less inclined to “play it safe”.  In fact, the only thing I fear today is the possibility that I might offer something less than my full pastoral obligation.

To avoid would be to dishonor and discredit the beautiful young men and women of St. Paul’s, who, in my time with you and before, have summoned an uncommon courage to come forward and reveal their full humanity as gay and lesbian persons to their families, friends and community.  To avoid would be to abandon you parents, grandparents and siblings who are courageously navigating unchartered waters.

I know some might come from different perspectives on this.  And, believe me, I can articulate every perspective there is. But let’s be clear about one thing: as Christians we must be of one accord in denouncing this Phariseeism that destroys not only the persons it targets and those who love them, but also the persons who render it, because it comes from a callous, blackened soul.

That sermon was delivered on July 26, 2015, by Pastor Phil Fenton of St. Paul’s Evangelical Lutheran Church in Brenham. Among those in his flock? Bathroom bill author Lois Kolkhorst.