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A Wisconsin Case Could Send a Message to Texas

A federal court rules that a transgender boy should be able to use the bathroom he identifies with.

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Photo by Sara D. Davis/Getty Images

By the end of the legislative session, Lieutenant Governor Dan Patrick—once determined to pass bathroom legislation similar to North Carolina’s—was willing to settle for a bill that only applied to public schools and required students to use bathrooms and showers with the gender designated on their birth certificate. But a new federal lawsuit out of the Seventh Circuit Court of Appeals in Wisconsin sends a powerful message that such legislation may ultimately be declared a violation of federal law.

A case in the Wisconsin court is not binding in Texas, and the issue may be moot before the case reaches the U.S. Supreme Court—the student involved is graduating from high school. But a unanimous ruling by a three-judge panel in the appeals court will be studied carefully by other courts when deciding cases.

At issue was the use of a boy’s bathroom by a transgender student named Ash. The school district wanted to deny him access to the bathroom after discovering that he had been using it for six months. “What the record demonstrates here is that the School District’s privacy argument is based upon sheer conjecture and abstraction,” the judges wrote in the ruling. “For nearly six month, Ash used the boy’s bathroom while at school and school sponsored events without incident or complaint from another student. In fact, it was only when a teacher witnessed Ash washing his hands in the restroom that his bathroom usage once more became an issue in the School District’s eyes.”

“This policy does nothing to protect the privacy rights of each individual student vis-à-vis students who share similar anatomy and it ignores the practical reality of how Ash, as a transgender boy, uses the bathroom: by entering a stall and closing the door,” the judges continued in the decision. The court also noted that it has received briefs from school administrators in 21 states representing 1.4 million students urging the court to rule in the transgender student’s favor.

The school district argued that an unfavorable ruling under Title IX would force school districts across the nation to consider whether they want to put their federal funding at risk with a policy that limits a transgender student’s bathroom access to the sex assigned on their birth certificate. That aligned with Patrick’s main justification for pushing his bathroom legislation, which was based on an executive order from former President Obama telling school districts that they risked losing federal funds under Title IX if they did not treat transgender students equally. That order has since been overturned by President Trump.

By holding up legislation to renew five state agencies, Patrick tried to force Governor Greg Abbott to call a special session. Patrick has said he wants bathroom legislation added to the call. Given what Patrick supported at the end of the regular session, he may be asking state lawmakers to adopt a policy that is destined to be overturned.

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    Another case out of Wisconsin could have even more of an impact on Texas…..it is the one in which the court found a way to prove “political gerrymandering”…….something the SCOTUS had said was unconstitutional years ago but could not find a way to demonstrate. It may reach the SCOTUS before Texas redistricts again in 2021 and, if the ruling is upheld, it will have a major impact on Texas. If this case is upheld, the days of splitting Travis County up among four or five congressional and state senate districts would be over as will dragging parts of Dallas and San Antonio, etc. out into the boondocks in order to insure the election of Republicans.

    • grubber

      How could it have even more of an impact on Texas? According to Danny Patrick, who goes potty where is the most important issue facing the state.

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    The Texas Legislature did not do many things during its recent Regular Session….Some it should have…Some it shouldn’t……but one thing it didn’t do, although many wanted to, showed an unexpected degree of fiscal responsibility.

    As you may remember, this session began with the Legislature facing a major problem of insufficient revenues to meet the state’s spending needs caused by population and inflation…….It ended with a slightly larger (in total dollars) budget than the current one….but, when you make those adjustments, is actually about 7.5% smaller than the current spending plan.

    Legislators will probably tell you that it was because of the down turn in the oil and gas industry and its impact
    on state tax revenues. BUT, in reality the “hole” facing the legislature was more the result of their own actions two years ago then it was because of the drop in oil prices. In fact, it was preordained when they actually
    reduced the amount of funds that otherwise would have been available this year by more than $9 billion by cutting taxes and dedicating General Revenue Funds to the highway program, instead of the general government.

    Some were afraid they would do the same this session….And there were plans to do just that by cutting (and
    eventually phasing out) the so-called “franchise tax”, the state’s only general business tax, and by tightening the existing state spending cap. The franchise tax cut by itself would have eventually reduced the state’s revenues by more than $8 billion, on top of the $9 billion from two years ago. The spending cap would not have reduced revenues, but, instead, made it impossible to spend them.

    In short, the Legislature was all set to once again tie hands of future legislators by reducing the funds they
    would have available. Surprisingly, however, in the end that did not happen. It is not because they didn’t try….In fact, the Texas Senate gleefully passed both the tax cut and the spending cap as part of Lt. Gov. Patrick’s “priorities” for the Session. And, the House followed thru by passing its own version of the tax cut that would have phased out the franchise tax even faster than the Senate proposed…..But, suddenly things came to a
    halt. In fact, while the House had produced its own version of the spending cap bill two years ago, this session it did not even hold a hearing on the Senate’s bill, much less on one of its own.

    What happened?

    I was not close enough to what was going on in the Legislature to really know….but I would like to think that—facing the task of dealing with what it had done two years ago—someone in the legislature woke up…….and, in doing so, realized that what it had been doing so happily actually had an effect…That, contrary to the Tax Fairy Legend of the Loffler Curve, cutting taxes does not increase tax revenues….it only cuts them……Whatever the reason, future legislators and future Texans should be grateful. But, have no fear—barring a miracle at the polls next year—Dan Patrick will be back in 2019 to try again.