When the vote on the Houston Equal Rights Ordinance (HERO) was delayed, several amendments were passed, except the one that dealt with public accomodations. Confusion about the amendment led many to believe that transgender Houstonians were losing protections. The lies and misinformation by anti-LGBT activists have also added to the confusion. Brynn Tannehill talked to Houston advocates to find out what the truth is about HERO. Here's her take below:
There has been a lot of confusion in the transgender community about what is going on with the Houston Equal Rights Ordinance (HERO). I admit, I was confused as well, trying to step into the middle of it to decipher who has done what, and why. Complicating matters is that the right wing has been busing in opposition, spreading blatant disinformation about the ordinance, and blanket accusations of transgender people being a hazard to women and children.
After a couple of days of talks with local, state, and national level activists and lawyers, the situation makes a lot more sense. Here are the basic facts on what is going on with HERO.
HERO adds sexual orientation and gender identity protections to the Houston’s ordinances. These protections include employment, housing, government services, contracting, and public accommodations. The public accommodations portion is the part that is causing most of the controversy, both from the right and from the transgender community.
The section on public accommodations (Section 17-51) states in its first paragraph:
“(a) It shall be unlawful for any place of public accommodation or any employee or agent thereof to intentionally discriminate against any person on the basis of any protected characteristic, except as required by federal or state law or court order.”
HERO defines “protected characteristic” as “an individual’s sex, race, color, ethnicity, national origin, age, familial status, marital status, military status, religion, disability, sexual orientation, genetic information, gender identity or pregnancy.”
It also defines “public accommodations” as “privately owned and operated public accommodations, including restaurants, bars, entertainment venues and places of public amusement, hotels and motels and public conveyances…”
The trouble begins with Section 17-51(b), which states:
“(b) It shall be unlawful for any place of public accommodation or any employee or agent thereof to intentionally deny any person entry to any restroom, shower room, or similar facility if that facility is consistent with and appropriate to that person’s expression of gender identity. It shall be a defense to prosecution for discrimination on the basis of gender identity under this article, however, if the defendant had a good faith belief that the gender or gender identity of the person discriminated against was not consistent with the gender designation of the facility. For purposes of this section, a defendant has a good faith belief if the manner in which the person represented or expressed gender to others (e.g. behavior, clothing, hairstyles, activities, voice or mannerisms) is not consistent with the gender designation of the facility the person attempted to access. Nothing in this section shall require construction of a new bathroom, shower room, or similar facility.”
This language was originally inserted by well intentioned allies, who sought to make sure that the definition of public accommodations specifically enumerated restrooms and shower facilities. It also included the language about “good faith beliefs” in to appeal to businesses and the other side, and thus improve the odds of the bill’s passage.
Unfortunately, the “good faith” language was so broad and overly vague that it would not just have effectively nullified the public accommodations language for transgender people, it would have done so for every other protected characteristic. Local, state, and national activists reacted very negatively to this language, and a motion is in place to delete the entire paragraph.
If the motion to remove the paragraph fails, every civil rights group involved with the bill will withdraw support, and it will not pass. There is essentially zero chance that the transgender community will get “thrown under the bus” legislatively here. We will get a clean bill, or none at all. Thankfully, the activists I spoke to at every level believe they have the votes to get a version of the bill without paragraph 17-51(b) through.
I also had to ask, “If HERO’s definition of public accommodations doesn’t specifically say restrooms, will restrooms be covered by the gender identity language?”
The short answer is yes. According to one top level legal expert I spoke with, “Public accommodations include any facilities open to the public, and so long as discrimination is prohibited in public accommodations, that includes bathrooms. That's the common law tradition (dating back forever). It is very well established, legally speaking.”
Despite the outright lies of the religious right, public accommodations doesn’t include anything not generally open to the public (duh), which includes religious organizations, private clubs, and many tax exempt organizations.
The upshot is that we can all stand down from general quarters, red alert, or whatever state of agitation we might be in over this bill. If section 17-51(b) isn’t removed, the bill won’t pass. If Section 17-51(b) is removed and the bill passes, the public accommodations protections for transgender people will include restrooms.
Simple as that.
Brynn Tannehill is originally from Phoenix, Ariz. She is a writer and transgender advocate who has written for OutServe magazine, The New Civil Rights Movement, and The Bilerico Project as a blogger and featured columnist.
She graduated from the Naval Academy with a B.S. in computer science in 1997. She earned her Naval Aviator wings in 1999 and flew SH-60B helicopters and P-3C maritime patrol aircraft during three deployments between 2000 and 2004. She served as a campaign analyst while deployed overseas to 5th Fleet Headquarters in Bahrain from 2005 to 2006. In 2008 Brynn earned a M.S. in Operations Research from the Air Force Institute of Technology and transferred from active duty to the Naval Reserves. In 2008 Brynn began working as a senior defense research scientist in private industry.
Brynn left the reserves and began transition in 2010. She and her partner currently live in Xenia, Ohio, with their three children.