The Odessa City Council on Tuesday approved a ban on transgender people using bathrooms that match their gender identity, a move that establishes penalties ranging from criminal charges to civil lawsuits.
In a 5-1 vote, council members approved an ordinance that makes it a crime for transgender people to use a bathroom in a city-owned or controlled facility that doesn’t match their “biological sex.”
The ordinance also allows people who violate the ban in any “public or private building” - whether city-owned or not - to be sued for a minimum of $10,000.
Some residents attending Tuesday’s council meeting voiced their support of the new policy, saying it was needed to protect women and children. Many others, including leaders of local LGBTQA+ advocacy groups, urged the city leaders to reject the ban.
“If trans people need to go to the bathroom in Odessa, if this passes, they will have three choices,” Pride Center West Texas board member Pauline Williamson told the council. “Either to ignore the law and hope nobody calls them out, follow the law and risk being attacked because of their perceived gender, or to not go.”
The ordinance specifically makes using a restroom at a city-owned or controlled facility that does not align with an individual’s “biological sex” a Class C misdemeanor punishable with a fine up to $500. “Biological sex” is defined in the ordinance as the sex stated on “a person’s birth certificate” or another government document.
The ban also states that a person who uses a restroom in any “public or private building” in Odessa that doesn’t correspond with their “biological sex” can be sued for at least $10,000.
In a statement, a city of Odessa spokesperson said the city is “actively looking at ways to go about implementing this ordinance in the most delicate way for our citizens."
At Tuesday’s meeting, Council Member Steven Thompson sought clarification on the scope of the new ordinance.
“This only applies to city buildings, or is it all public buildings?” he asked Odessa City Attorney Dan Jones.
“As far as the city of Odessa is concerned, it is public restrooms, changing rooms, locker rooms of city-owned buildings,” Jones said. “But that private right of action takes it a step further.”
“Private right of action” refers to the section of the ordinance that allows civil lawsuits to be brought against anyone who violates the ban. Critics say this portion amounts to the city putting a $10,000 bounty on transgender residents and anyone who violates the ban.
“The trans community is not a threat to Odessa or anyone in the bathroom, we are just trying to live our lives,” Matilda Mann-Morales, a trans woman and head of the transgender advocacy group Out in West Texas, said at Tuesday’s meeting.
The new policy is one of the last actions that Mayor Javier Joven and two council members will take after losing their bids for reelection on Nov. 5.
Last month, as the council discussed the proposed but not yet finalized ordinance, Joven outlined why he supported the effort in a written statement.
“While it is crucial to consider the needs and concerns of all community members, including the LGBTQ population, it is also important to prioritize the safety and privacy of the majority,” he wrote. “I believe that by ensuring privacy and safety in our city-owned bathrooms, we are not only protecting our citizens but also creating a more inclusive and respectful community.”
Ahead of Tuesday’s vote, the American Civil Liberties Union of Texas sent the council a nine page letter urging officials to reject the proposal, saying it would trample on the “rights of transgender people and threaten to create a gender-policing witch hunt on both public and private property.”
In an interview with Marfa Public Radio, ACLU attorney Brian Klosterboer said the most distressing part of the ban is the section that empowers members of the public to sue anyone who they believe is using the wrong bathroom for thousands of dollars.
Klosterboer described the ban as a first-of-its kind move by a local government in Texas.
“Basically, it allows anyone to call into question other people's gender whenever they're using restrooms at any public or private property across Odessa,” he said. “We've never seen a municipality in Texas expose its own residents and small businesses to this kind of liability.”
When asked whether the ACLU would sue to block the ban, Klosterboer said the group is “considering next steps,” but “nothing is off the table.”
Klosterboer also urged Cal Hendrick, the incoming Odessa mayor who ousted Joven this month, and incoming council members to repeal the bathroom ban to avoid potential court battles, which is what new at-large city councilman Craig Stoker said he intends to do.
“When we do go to repeal it, I want people to understand that it's not the safety of the children…I'm repealing,” Stoker told Marfa Public Radio. “I'm repealing the potential for the city to be sued.”
Stoker described the prospect of private citizens feeling empowered to police who are using restrooms across the city as dangerous, and said he doesn’t want the city to face costly legal expenses as a result of the ordinance.
“I don't disagree that our bathrooms are private spaces where we should feel safe, but I disagree that this ordinance does anything to protect [people],” he said.
