The following is from the April 17, 2017, edition of The Dallas Morning News. SMU Law Professor Dale Carpenter, an expert on constitutional law, provided expertise for this story.
April 17, 2017
AUSTIN — The newest take on a Texas bathroom bill is so broadly written that some cities worry it would strip anti-discrimination protections not only from transgender people but also veterans, the elderly and pregnant women.
Under the proposal, introduced by House Republicans as a less restrictive option compared to the Senate’s bathroom bill, cities would be forbidden from enacting bathroom regulations that protect the rights of people who are not already covered under federal civil rights laws, including members of the military. The modified measure was intended to draw support from Texas businesses who are concerned about the bill's potential hit to the economy. But at least one constitutional scholar says the fix may create more problems.
The bill would allow cities to pass discriminatory laws banning certain people from using the restrooms of their choice, a factor experts said will invite legal challenges.
At best it’s problematic and at worst it's unconstitutional, said Dale Carpenter, a professor of constitutional law at Southern Methodist University’s Dedman School of Law.
“It’s a one-sided proposition in that it forbids a city from protecting someone from discrimination but it doesn’t forbid a city from discriminating against a person," Carpenter said. “It is very rare, if not unprecedented, to see actual language in a statute prohibiting classes of persons from being protected from discrimination." . . .
Carpenter said cities that have passed local laws protecting other groups in public spaces, like married people, families with children and pregnant women, would also be affected.
“This is broader than just the issue of just transgender access,” Carpenter said. “It goes beyond sexual orientation and gender identity to include things like veteran status and marital status and familial status.”
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