Article Nov 5, 2015

Explainer: What you should know about Houston's bathroom ordinance

On Tuesday residents of Houston, Texas, America’s fourth most populous city, voted by a margin of 61 percent to 39 percent, to repeal the city's Equal Rights Ordinance. Here is what you should know about the controversial law.

What was Houston’s Equal Rights Ordinance?

Houston’s Equal Rights Ordinance, better known as HERO, was an ordinance passed by the city council in May. The law would have made it illegal to discriminate against someone based on 15 different “protected characteristics,” including sex, race, religion, sexual orientation and gender identity.

Why was HERO so controversial?

The main concern many citizens had with the ordinance was with it’s definition of gender identity and how it would apply to “public accommodations.” The text of the ordinance defined gender identity as follows:

Gender Identity means an individual’s innate identification, appearance, expression or behavior as either male or female, although the same may not correspond to the individual’s body or gender as assigned at birth.

This wording, combined with the document’s definition of public accommodation, would have allowed men and women who “identify” with the opposite gender to use public bathrooms and locker rooms of the opposite sex.

Why was the bill dubbed the “bathroom ordinance”?

Although the bill didn’t specially mention public bathrooms, the wording of the law made it clear that transgender people would be able to use the bathrooms of the opposite sex.

As Texas Lt. Governor Dan Patrick said after the vote,

The voters clearly understand that this proposition was never about equality – that is already the law. It was about allowing men to enter women’s restrooms and locker rooms — defying common sense and common decency.

How did the ordinance come up for a referendum vote?

After the referendum was rejected by the city, says Houston pastor Nathan Lino, the “petitions were appealed all the way to the Texas Supreme Court who ruled 7-0 that the signatures are indeed valid and ordered the Mayor to repeal the ordinance or put it up for a city vote.”

What did the ordinance have to do with the “Stand with Houston pastors” movement?

After the city council passed the ordinance in May, many local residents, including some pastors in the area, opposed the law and supported a citizen initiative to have the council either repeal the bill or place it on the ballot for voters to decide.

Although the initiative was certified by the City Secretary, the mayor and city attorney threw out the petition claiming it was invalid. This sparked a lawsuit by the initiative supporters, Woodfill v. Parker. The city’s attorneys subpoenaed a number of area pastors, demanding to see what they preach from the pulpit and to examine their communications with their church members and others concerning the city council’s actions. Some of the pastors who received the subpoena were not even involved in the initiative.

The subpoena covered almost every type of communication related to HERO, the mayor, or the petition initiative. The most controversial wording in the subpoena was this clause:

All speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession.

Five pastors refused to comply and were supported by a social media campaign called “Stand with Houston pastors.”

Why did the pastors have a problem with providing their sermons?

A case could be made that if the sermons were construed as electioneering (persuading voters as part of political campaign) that such communications could be relevant to the lawsuit. But the subpoena also requested all sermons about homosexuality and gender identity. This was a clear-cut case of overreach and has been construed as attempting to suppress the free speech rights of the pastors.

As legal scholar Eugene Volokh said,

At the very least, the subpoena seems vastly overbroad. And the fact that it seeks the contents of religious speeches does counsel in favor of making the subpoena as narrow as possible (which would likewise be the case if it sought the contents of political speeches). I’m not sure what sort of legally relevant information might be contained in the subpoenaed sermons. But the subpoena ought to be narrowed to that legally relevant information, not to all things about homosexuality, gender identity, the mayor, or even the petition or the ordinance.

Why did the pastors have a problem with providing their sermons?

Sermons are public utterances, so most pastors would have few qualms with giving a copy to anyone who asked — even a government official. The concern was with the idea that a city government has the authority to scrutinize a sermon to determine whether it fits within the limits of what government officials deem to be politically acceptable.

Another concern was with the use of government power to intimidate pastors into not speaking out on issues such as homosexuality. As the Alliance Defense Fund notes in a legal motion to quash the subpoenas,

It appears they were designed to punish the Nonparty Pastors for being part of the coalition that invoked the City Charter’s referendum provision, and discourage them and other citizens from ever doing so again. The message is clear: oppose the decisions of city government, and drown in unwarranted, burdensome discovery requests.