Months after officials in Odessa approved a controversial ban on transgender people using bathrooms that correspond with their gender identity, a new iteration of the local city council has effectively abandoned the policy, which officials now say never actually took effect.
The original ordinance — approved at an Odessa City Council meeting on Nov. 12 — would have amended the city code and established harsh punishments for anyone who uses a restroom that does not align with their “biological sex.”
The move was one of the last acts of a city council that would soon see a big shakeup, after voters just a week earlier had chosen a new mayor and two new city council members in the Nov. 5 elections.
After the new council took office, the city issued a statement in late November that described the bathroom ban as a “controversial” policy that was “a final act of a lame duck council” which had been “deemed unenforceable.”
Local officials now say that — largely due to a technicality — the policy was never instituted.
“It did not become the law of Odessa,” said Odessa Mayor Cal Hendrick. “The T’s weren’t crossed and the I’s weren’t dotted, so…it never was codified.”
The majority of the council members that supported the proposal — including then Odessa Mayor Javier Joven — lost their bids for reelection.
Even though the former council successfully passed the bathroom restrictions in a 5 to 1 vote, city officials never published a notice of the decision in the Odessa American, the community’s local newspaper. According to Odessa City Secretary Norma Aguilar, the city was required to issue this notice and without it, the ban was not formally adopted.
Hendrick said he doesn’t know why that step wasn’t taken, but he doesn’t plan to revisit the issue. The current council has more important things to focus on, like the city’s infrastructure, he said.
Hendrick told Marfa Public Radio he doesn’t necessarily disagree with the bathroom ban in theory, but he described the policy approved by the previous council as “draconian.”
“It’s difficult to support a statute that appears to me on its very face to discriminate against a certain group of people,” He said. “I just don't want anybody persecuted for, all they’re trying to do is use the restroom.”
Hendrick said he also feels that an existing city ordinance - which prohibits people from using public restrooms designated for the opposite sex - is sufficient. The policy has been in place since 1989, but the ordinance does not specify that people must use facilities that correspond with their “biological sex.” It also doesn’t outline how individuals who violate it would be punished.
The transgender bathroom ban would have made it a class C misdemeanor for anyone using a restroom in a city controlled building that did not align with their “biological sex,” punishable with a $500 fine. The policy would have also empowered members of the public to sue anyone who violated the ban in public or private buildings for at least $10,000. Critics of the ban claimed this essentially put a bounty on transgender people.
“The cruelty is the point,” Alexander Ermels said in an interview. “People were afraid immediately.”
Ermels is the President of the Midland/Odessa chapter of PFLAG, an LGBTQ+ advocacy group, and is a transgender man. He said it isn’t clear to the public the bathroom ban is not city law.
“The trans community here does not know that,” he said.
After the November election, Odessa officials said the newly formed city council had “expressed a desire to revisit this ordinance.” But the council has not taken any formal action on the matter since then. Ermels said the city should clarify the status of the ban and officially announce it’s not in effect.
“I think that it would really put the [trans community] at ease to hear that the ban is not on the books,” he said. “As much as the council promises not to enforce the ban, there is still the fear that looms over the community.”
