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Here’s how the 'bathroom bills' in North Carolina and Texas measure up

by Alex Samuels | The Texas Tribune

Since Texas Republicans unveiled their so-called “bathroom bill” in early January, supporters have described the bill as similar to a law passed by North Carolina yet different in important ways.

"We're doing what North Carolina did — we're fighting back," Lt. Gov. Dan Patrick said Wednesday at an event hosted by the Family Research Council that also featured North Carolina Lt. Gov. Dan Forest. "Our bill is a little bit different than their bill, but our objective is the same. That's to provide common sense, common decency, privacy and public safety to women."

When North Carolina passed House Bill 2 last year, it cost the state millions. The law directs all public schools, government agencies and public college campuses to require bathrooms and changing facilities be designated for use only by people based on the sex stated on their birth certificate. The law also prohibits municipalities from enacting any discrimination protections for LGBT residents. Concerns over HB 2 prompted the NBA to pull a 2017 All-Star Game out of Charlotte. Various entertainers also cancelled scheduled performances in the state.

Senate Bill 6, the measure filed in Texas, would require transgender people to use bathrooms in public schools, government buildings and public universities based on “biological sex” and would pre-empt local nondiscrimination ordinances that allow transgender Texans to use the bathroom that corresponds with their gender identity.

LGBT advocacy groups have decried both the North Carolina law and the Texas bill as discriminatory against transgender people.

State Sen. Lois Kolkhorst, R-Brenham, SB 6's lead author, has argued that the Texas bill wouldn't lead the state down the same fate as North Carolina.

“This bill is very different from the North Carolina bill in that it covers a whole list of things that the Texas Privacy Act does not," Kolkhorst said.

But how exactly does the text of SB 6 compare to North Carolina’s HB 2? Here's a look at how the two pieces of legislation stack up:

Local nondiscrimination ordinances

Texas: The bill's current language pre-empts local nondiscrimination ordinances that protect transgender Texans from discrimination in public accommodations. Those ordinances allow bathroom access based on gender identity in businesses that serve the public. While those ordinances also protect transgender Texans from discrimination in employment and housing, SB 6 would only apply to bathroom use.

North Carolina: Prompted by a Charlotte nondiscrimination ordinance, HB 2 prohibited municipalities from extending any nondiscrimination protections to cover LGBT people.

Instead, HB 2 set a statewide policy for classes of people who are protected against discrimination, which included race, religion, color, national origin, age, handicap or biological sex. Neither sexual orientation nor gender identity were explicitly listed under classes that are protected under the law.

The bottom line: Both bills, in part, nullify certain nondiscrimination protections. Texas' SB 6 prohibits local governments from adopting ordinances to regulate bathroom access and invalidates current ordinances protecting bathroom access by transgender people. North Carolina's HB 2 goes further by prohibiting any local ordinances that extend discrimination protections beyond the state's list of protected classes, which does not include sexual orientation or gender identity.

Places where law is enforced

Texas: If signed into law as is, SB 6 would be enforced in public schools, government buildings and public universities. However, stadiums, convention centers and entertainment venues owned or leased by a government entity would be exempt from bathroom regulations. While introducing the legislation, Kolkhorst said the bathroom regulations would not apply if “if the location owned by a government entity is privately leased to an outside entity," which is often the case for those sort of venues.

North Carolina: Similarly HB 2 applies to all government agencies, including public schools, state university and community college systems, state agencies and local government offices. However, the law doesn’t include language to exempt stadiums and convention centers.

The bottom line: For the most part, bathroom restrictions in both states would apply to the same entities: Public schools and universities, government owned building and public agencies. However, Texas' SB 6 has an exemption for publicly owned stadiums, convention centers and entertainment venues in some cases, while North Carolina's HB 2 does not.

Penalties

Texas: As originally filed, SB 6 would allow the Texas Attorney General to fine “a school district, open-enrollment charter school, state agency, or political subdivision” a civil penalty between $1,000 and $10,500 per day if their bathroom policy is found to be out of step with the legislation. The bill does not impose any specific penalties on individuals who use a bathroom that doesn’t correspond to their biological sex.

Kolkhorst’s bill also increases penalties for crimes committed in a bathroom or changing facility by one degree. For example, the punishment for an individual who commits an assault or prostitution would be higher if the assault occurred in a bathroom versus a parking lot or on a sidewalk.

North Carolina: Using the bathroom that does not align with one’s biological sex is not considered a criminal offense under North Carolina’s law. And while HB 2 is a civil law, it does not outline penalties for those who don’t comply. Several state law enforcement agencies previously said they’d file trespassing charges if the person in charge of the building wished to press charges. In North Carolina, second-degree trespassing is considering a Class 3 misdemeanor, punishable with a maximum fine of $200.

The bottom line: North Carolina has no penalty mechanisms, a stark differentiation from the proposed version of Texas’ bathroom bill. And only the Texas bill has a provision that would increase criminal penalties for certain crimes when those crimes are committed in a bathroom.

Enforcement

Texas: For penal action to take place, an individual would have to first provide a written notice to the school district or governmental entity describing the violation and then file the complaint with the AG’s office if the district or entity does not “cure the violation” before the end of three business days. The AG's office would then decide whether to investigate.

North Carolina: North Carolina Sen. Dan Bishop, a Republican, previously said there are no enforcement provisions or penalties in HB 2. According to Bishop, who co-sponsored the bill as a state representative, the purpose of the legislation is to “restore common sense bathroom and shower management policy in public buildings, not to pick out people to punish,” he wrote in an April 2016 statement.

The bottom line: The current draft of the Texas bathroom bill carves out how to report entities that do not comply with the proposed law, whereas North Carolina’s law does not.

Read related coverage:

Alexa Ura contributed to this report.

The Texas Tribune is a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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