Anti-Trans Bathroom Debate: How a Local Religious-Right Faction Launched a National Movement
In May 2015, the Council for National Policy, an elite organization of conservative leaders, held a strategy session at the Ritz-Carlton Hotel in Tysons Corner, Virginia, just outside Washington, D.C. The mood among conservatives was bleak. A month later, the Supreme Court would decide the case of Obergefell v. Hodges, which would establish equal access to marriage as a constitutional right. “I don’t think anybody has an idea of the magnitude of what’s coming,” warned Kelly Shackelford, a lawyer from Texas and the founding president of the First Liberty Institute, a nonprofit legal firm well-known in Christian-right legal circles. He co-authored an op-ed in 2015 that characterized laws protecting LGBTQ people from discrimination as just “another route for suing Christians.” An unfavorable ruling in Obergefell, Shackelford suggested that day, “is going to be a direct attack” on the religious freedom of everyone in the country. “No one will escape it.”
The Heritage Foundation’s Ryan Anderson, a leading opponent of LGBTQ rights, told the audience that a decision in Obergefell in favor of same-sex couples would be a call to the barricades: “Our message here needs to be that if the court tries to redefine marriage it will be doing the same exact thing that it did 42 years ago with Roe v. Wade.” That decision, Anderson reminded his audience, “didn’t settle the abortion issue. It created a culture war.”
Panic on the Christian right had been percolating even before the high court agreed to hear the case in early 2015. Over the course of the previous year, four federal appellate courts had struck down state laws banning same-sex marriage, while just one such law was upheld. Observers on both sides began to view a Supreme Court decision recognizing a constitutional right to marry as inevitable. At the same time, localities across the country were beginning to guarantee LGBTQ people other legal protections against discrimination. Blue cities, even in red states like Texas, were passing ordinances barring discrimination on the basis of sexual orientation and gender identity. President Obama had also taken action, issuing an executive order protecting LGBTQ people from discrimination in federal contracting and hiring, triggering Christian-right anxieties about federal-government overreach and infringement of Christians’ religious freedom.
The avalanche of change wasn’t just legal but cultural as well, with polls showing a seismic shift in attitudes: Homosexuality was becoming increasingly accepted, even among a younger generation of evangelical Christians. At stake in the new culture war sparked by Obergefell, many conservative evangelicals and Catholics believed, was the future of Christianity itself. “We are moving rapidly towards the criminalization of Christianity,” former Arkansas governor and then-presidential candidate Mike Huckabee warned pastors in a conference call less than two weeks before announcing his presidential run.
Facing such political headwinds, Christian-right activists desperately needed a fresh strategy. Provoking fear of infringement on religious liberty would likely only gain traction among fellow believers. They soon found an alternative in Shackelford’s home state, whose largest city was, at the time, led by a lesbian Democratic mayor. There, in Houston, a small band of well-connected far-right activists was resurrecting an approach from the oldest anti-LGBTQ playbook: to transform the civic debate about homosexuality into a panic about predators. As national activists fretted at the Ritz-Carlton, Houston players had already sketched out a plan to turn voters against nondiscrimination ordinances by framing the debate as one about safety for women and girls. It proved so potent that it prompted a shift in legislative strategy across the country.
In the 2014 and 2015 legislative sessions, in the run-up to Obergefell, Republican lawmakers were focused on “religious freedom” bills to grant religious exemptions from serving same-sex couples or their weddings. In 2016, that strategy changed, says Catherine Oakley, senior legislative counsel at the Human Rights Campaign. That year, she says, “was about going after trans people with bathroom bills.” The National Conference of State Legislatures counted nine states that considered bathroom bills in 2015; in 2016 that number jumped to 19. The shift was a sign of a new strategy, post-Obergefell, of finding ways to wedge apart the growing consensus for LGBTQ rights. Just like the Christian right’s long march against abortion rights after Roe v. Wade, it will be a multi-front war – in the courts, in statehouses, in public debate – persisting even while the ultimate prize, a Supreme Court reversal, is potentially decades away. And like the long fight against Roe, this one would start not with legal arguments or even theological ones, but with a pure gut reaction: fear and disgust.
In May 2014, the Houston City Council passed a comprehensive anti-discrimination law, dubbed the Houston Equal Rights Ordinance, or HERO, a measure introduced by Houston’s first lesbian mayor, Annise Parker, to outlaw discrimination based not only on race, gender, age and ethnicity, but also on sexual orientation and gender identity. The bill, as introduced, would have also explicitly permitted transgender people to use restrooms or locker rooms corresponding with their gender identity; though that specific provision was eliminated before passage, the broad nondiscrimination language in the bill would have covered it. The vocal opposition against HERO – largely ginned up in the city’s conservative churches – was led by Jared Woodfill, a Houston lawyer and Republican political activist, and Dr. Steven Hotze, a dietary-supplements supplier and local right-wing radio host. Together, they run the influential Conservative Republicans of Texas, whose literature habitually refers to LGBTQ people as “perverts,” “deviants” and “sodomites,” and which has been called “a cesspool of extremism and open hate” by the civil-rights group Texas Freedom Network. Conservative Republicans of Texas has called on Christians to join a “cultural battle” against the left in order to halt “the Islamization of America,” “the killing of the unborn” and “acceptance of the perverted homosexual and so-called ‘transgender’ lifestyle.” With their anti-HERO battle, they would transform what appeared to be a local dispute into a national cause célèbre for the Christian right.
It’s unlikely that two local activists, on their own, would have been able to carve out such an influential role for Houston in a national Christian-right strategy. But Hotze and Woodfill are part of a tight-knit circle in Houston, where they and many of their fellow conservative Christian activists attend the same megachurch, Second Baptist; the former Christian-right radio host and state senator who in 2015 became Texas’ powerful lieutenant governor, Dan Patrick, is also a parishioner. The church’s senior pastor, Dr. Ed Young, has used his platform to sway the political agenda of his flock. As the campaign against HERO hit a fever pitch, he railed against the bill from the pulpit and warned, “We will be discriminated against” if LGBTQ people have equal rights. “It’s totally deceptive and it’s deadly,” Young said. “It will carry our city further and further, further down the road of being totally, in my opinion, secular and godless.”
“So many of the anti-gay folks in the state are from Houston,” says Dan Quinn, communications director for the Texas Freedom Network. One of Woodfill and Hotze’s key allies is Dave Welch, head of the Houston Area Pastors’ Council, a powerful alliance that works with the pastors of several megachurches, including Young. Welch, Quinn says, “has become one of the big faces of the anti-LGBT movement” in the state.
Woodfill, raised in Houston by a NASA engineer and a college writing instructor, has deep roots on the Christian right. Early in his legal career he worked in a law practice with Paul Pressler, a central player in the 1970s in the “Conservative Resurgence” of the Southern Baptist Convention and its burgeoning union with the GOP. (Pressler was recently accused in a lawsuit of repeatedly sexually assaulting a young man he mentored in Bible study in the 1970s and ’80s. Pressler denies the claims. As Pressler’s former law partner, Woodfill is also named in the suit, which he has called “absolutely false” and “an attempt to extort money.”)
It was through Pressler that Woodfill met Hotze, who in 2014 tapped Woodfill to succeed him as president of Conservative Republicans of Texas. Hotze, a white-haired fixture on the fringes of the Lone Star State’s conservative politics, owns a health-and-wellness center in Houston, where he dispenses advice on vitamins, supplements and other “natural approaches to health” on the theory that Christians need better health than others, “for the advancement of God’s Kingdom.”
Immediately after the HERO ordinance passed, Woodfill and Welch, a seasoned former national field director for the Christian Coalition, launched a petition to force a referendum vote on the measure. It was Woodfill’s pivotal insight to latch onto one small aspect of the law: the question of bathroom access.
“The message was real simple,” Woodfill tells me in an interview in his law office last spring, a large framed Texas flag dominating the wall behind him. “No men in women’s bathrooms, showers or locker rooms. Period.” Woodfill is amiable and gregarious in conversation, which is at odds with the tone of the fiery diatribes he posts on the Conservative Republicans of Texas website. He and his wife, an architect, are the parents of two young children and attend not only Young’s Second Baptist on Sundays but also televangelist Joel Osteen’s Lakewood Church on Saturday evenings. A mover in multiple Houston Christian circles, Woodfill relishes his long standing as a strategist of the conservative vanguard and, in this case, as the mastermind of the strategy of stoking a voter panic over transgender people in bathrooms. Although there were “a whole host of bad things we disagreed on” in the ordinance, he says, “if you have too many messages, you have no message.”
As homosexuality became culturally more normalized, it no longer sparked the same outrage that had propelled voters to the polls in droves a decade or more ago to pass referenda banning same-sex marriage in more than a dozen states, including Texas. But Woodfill had zeroed in on something that he believed could make even voters outside his base deeply uncomfortable – transgender bodies. By stirring up that disgust, and sparking outrage at the notion of “men” being given access to girls’ bathrooms, he gambled that he could mobilize conservative Christians and others, forming a large enough coalition to reverse HERO at the ballot box.
His efforts were bolstered by a stroke of luck when a misstep by the city also allowed him to stir up fears about government oppression of Christians’ religious freedom. After the city ruled thousands of the 50,000 petition signatures that Woodfill’s troops had collected invalid, Woodfill sued, raising more than a half million dollars for legal fees from churches and individual donors such as Hotze. In the course of the lawsuit, the city subpoenaed records, including sermons, from five Houston pastors whose congregations had helped collect signatures. Although document requests are standard discovery procedure in litigation, the government request for the sermons was like a match hitting gasoline for Christian-right activists who had spent years warning that the government aimed to infringe on the free speech and religious freedom of Christians in order to advance LGBTQ equality. Alliance Defending Freedom, a rising conservative legal advocacy group, accused the city of “engaging in an inquisition.” The city eventually modified the subpoenas – but a firestorm had already been unleashed.
The local fight over a municipal ordinance quickly went national, held up by leaders of the Christian right as the realization of their darkest warnings: a real-life effort by the state to muzzle churches. For the religious-right rank and file, the Houston case both heightened their anxieties and gave urgency to their political messaging – offering proof that the government did indeed aim to surveil pastors’ speech to serve the aims of the LGBTQ community. “Houston, we have a problem” soon became a refrain of Christian-right action alerts.
“This is about political intimidation,” Family Research Council president Tony Perkins told Fox News’ Megyn Kelly in October 2014. “This is unprecedented, and we’ve been hearing from pastors across the nation.”
Over the course of the next year, as HERO’s opponents won the right to a referendum vote, conservative political leaders hammered the message home to churchgoers. During a “Faith, Family, and Freedom” rally hosted by Conservative Republicans of Texas in August 2015, which attracted such political powerhouses as former House Majority Leader Tom DeLay, Hotze warned the audience of the threat of “homo-fascists.” “Just like there was a Communist Manifesto, there’s a homosexual manifesto,” he said. “The hackles will stand up on the back of your neck when you see what they have planned.”
The Family Research Council, one of the nation’s most powerful Christian-right advocacy groups, organized an “I Stand Sunday” event at a Houston megachurch just days before the November 2015 referendum vote; the vote was being so closely watched on the right that the event was simulcast to more than 750 churches around the country. There, Erik Stanley, an attorney from Alliance Defending Freedom, called the subpoenas “just one front in a rapidly developing conflict. The philosophy underlying this conflict is that sexual liberty trumps everything, including religious liberty.” The subpoenas had provided the Christian right a perfect bridge between the bathroom-focused strategy and the broader religious-liberty campaign, proving, in activists’ minds, that government hostility to religion and promoting LGBTQ rights went hand in hand.
It was Duck Dynasty star Phil Robertson, dressed in his signature camouflage pants and brandishing a Bible, who brought the message home: “For all you ladies in Texas, trust me when I tell you this. When you’re seated in your restroom, putting on your Maybelline, when I need to take a leak, I’m not going there.” After the audience’s laughter quieted down, Robertson added, “It cannot be said too strongly or too often that this great nation was not founded by religionists, but by Christians. Not on religions, but on the Gospel of Jesus Christ.”
Days later, Houston voters went to the polls and defeated HERO soundly, with 61 percent voting for repeal. The Houston strategy was officially a success, and activists in other states quickly sought to replicate it, particularly in North Carolina, which the following year would pass the first law in the nation banning transgender people from using the public restroom associated with their gender identity. Tammi Fitzgerald, executive director of the North Carolina Values Coalition, which spearheaded support for the bill, acknowledged that her group was deeply influenced by Houston. She recalled the moment she first saw a television ad that Woodfill and Hotze had run: It featured images of a young girl in a bathroom stall, with a chilling voiceover warning that a man could enter at any time. Fitzgerald found it so effective that her coalition contacted the same ad agency to recast it for a North Carolina audience. “The pastors in Houston rose up and decided they were not going to allow a mayor of their city to override their freedoms,” Fitzgerald says, “their freedom to have access to bathrooms and showers and locker rooms without worrying about someone of the opposite sex viewing their daughters or their granddaughters.”
“We were winning big,” Woodfill boasts, and “I do think that emboldened a whole lot of other folks.”
The activists in Houston “100 percent” led the way, says Terry Holcomb, a member of the Texas Republican Party’s executive committee, because “what they did was they let the liberal side of government know that we’re here, we go about our lives, but when you encroach on us we’re going to stand up and have our voices be heard.”
The Family Policy Alliance, an umbrella of state lobbying groups affiliated with Focus on the Family and the Family Research Council, sensed a change in the wind. “While the radical agenda of the homosexual and transgender lobby has rocked the nation in recent years, the ‘pushback’ is gaining real steam,” a May 2016 post on the organization’s site read. “It started in Houston last November with the overwhelming defeat of [HERO].”
Beyond North Carolina, a wave of bills followed in other states that explicitly sought to block equal access to bathrooms and other public facilities for transgender people. Although none passed, Trump delivered a victory by rescinding a Department of Education guidance, first put in place by Obama in May 2016, to protect transgender students in public schools from discrimination. And despite so many bathroom bills stalling in statehouses, the fear-mongering strategy continued to gain steam: In 2017, Republicans not only kept up the pressure for bathroom bills in Texas and elsewhere, introducing legislation in at least 16 states, but drafted other bills purporting to protect children from LGBTQ people. Laws permitting adoption and foster-care agencies to refuse to place children with same-sex couples passed in Texas, Alabama and South Dakota.
The strategy faced pushback when North Carolina was forced to repeal its bathroom law, HB2, under pressure of business boycotts. But the repeal was hardly a victory for LGBTQ rights: State lawmakers replaced HB2 with a law that prohibits municipalities from passing nondiscrimination laws. The bathroom bill, then, ended up opening the door to broader discrimination against LGBTQ people.
Last March, the Texas state legislature held a hearing on SB6, a bill that would require transgender people to use the public bathroom or locker room that corresponds with the gender listed on their birth certificate. The bill had become one of Lt. Gov. Patrick’s top legislative priorities. The day before the hearing, Patrick held a press conference inside the capitol to rally support. There, flanked by Woodfill, Hotze and pastors and Christian-right leaders from around the state, Patrick praised “our own city of Houston,” where, he said, voters “rejected the mayor’s policies” and would rally behind SB6. Later in the day, he delivered a bellicose address to pastors, comparing the fight to pass SB6 to the battle at the Alamo. He urged them to “win this fight for America” because “a strong America depends on a strong Texas.”
Patrick, who was elected with a crucial $1.2 million electioneering campaign from Hotze and Woodfill’s Conservative Republicans of Texas, has become “the center of almost all activity on the anti-LGBT front, particularly on bills on transgender and so-called religious freedom,” says Quinn, of the Texas Freedom Network.
In his push for SB6, Patrick appeared to be setting his sights far beyond the state’s borders. His national profile was growing, and SB6 was an opportunity for Texas to again lead the way. Though a number of other states had put bathroom legislation forward, so far only North Carolina’s ill-fated bill had passed. Days before the press conference, Patrick received a laudatory note of appreciation from Alan Sears, founder of Alliance Defending Freedom, for a speech Patrick had delivered to the influential conservative umbrella group the Council for National Policy, which had also profiled the SB6 campaign in its monthly newsletter. In his note, Sears applauded Patrick for his “desire to protect our young people from the shower and bathroom invasions.” Patrick was also interviewed by the Heritage Foundation, where he extolled the bill as “a model for other states to follow and end this discussion once and for all about men being able to walk into ladies’ rooms in public buildings and to stop school districts from allowing boys and girls to shower together.”
National Christian-right firepower showed up in force to lobby for the bill’s passage. One of the first witnesses at the SB6 hearing was Perkins, who is not only president of the Family Research Council but has since 2014 served as president of the Council for National Policy. (Perkins and Sears did not respond to interview requests.)
Perkins hadn’t just flown to Austin to offer up his testimony to one statehouse; he was using the Texas capitol as a command center in the culture war. A few hundred feet from the hearing room was an auditorium the Family Research Council had reserved to train a gathering of Texas pastors on how to lobby their state legislators. The pastors, who were tight-lipped about what had transpired inside the auditorium, received talking points in support of SB6 and advice about how to influence legislators to “support biblical values.”
In his testimony, Perkins entreated lawmakers to be trailblazers and chart a national path by passing the bill. He praised the Trump administration for its reversal of the DOE guidance, but still, he warned, states would need to rein in school districts and municipalities from enacting trans-friendly bathroom policies. Passing a statewide bathroom bill, Perkins said, would achieve that goal and “will influence the direction of the rest of the country.” After the hearing, SB6 was voted through the committee; it later won approval of the full Senate by a 21-10 vote but failed in the House.
After SB6 stalled, Patrick urged Gov. Greg Abbott to call a special summer session to make another attempt to pass it. On short notice, the Senate State Affairs Committee held a fresh hearing on the bill in July. As with the first one, the hearing drew more opponents than supporters, including Kimberly Shappley, the mother of a trans girl who stunned the hearing room into rapt silence when she revealed she was a registered Republican and a “born-again believer in Jesus Christ,” going on to admonish the lawmakers, “the Lord is on our side.” Again, the bill failed to pass the House, a setback Woodfill and Hotze blamed on the moderate Republican House speaker, Joe Straus, who Conservative Republicans of Texas has relentlessly targeted as a liberal RINO. Woodfill called for primary challenges to Straus and “his lieutenants,” accusing him of having “proudly killed legislation that would keep biological males, including registered sex offenders, from entering women’s bathrooms, showers, and locker rooms.”
The Christian right’s anti-trans fervor arguably reached its apotheosis with a series of presidential tweets last July. “After consultation with my Generals and military experts,” Trump wrote, “please be advised that the United States Government will not accept or allow… transgender individuals to serve in any capacity in the U.S. military.” The Christian-right response was joyful. “Our troops have waited eight years for a leader who puts America’s mission first,” the Family Research Council’s Perkins wrote. “Today, they got one…” Trump had “restor[ed] a sense of true pride to a military devastated by two terms of social engineering.”
Since taking office last January, Trump has made good on a variety of other commitments he made to Christian-right leaders during the campaign. In addition to his reversal of the DOE transgender guidance and his attempt to ban transgender service members from the military, he has stacked federal agencies, especially the Department of Health and Human Services, with Christian-right ideologues. And he issued an executive order last May, directing Attorney General Jeff Sessions to develop guidance for agencies on religious-freedom issues, which was released in October. That guidance could open the door, according to the ACLU, to “widespread, religious-based discrimination against women, LGBT people, people of minority faiths and races, and others in a variety of contexts.”
Religious exemptions, such as the ones the DOJ green-lit in its Trump-ordered guidance, could, if broadly interpreted, turn anti-discrimination rules into “Swiss cheese,” says ACLU deputy legal director Louise Melling. The Supreme Court has said that same-sex couples have a constitutional right to marry, Melling says, but what does that right mean “when you then go to a store and you can be turned away because of who you are?”
Last spring, when I met Woodfill at his office, Trump had just signed an executive order signaling that his administration would stop enforcing the Johnson Amendment, a 1954 addition to the Internal Revenue Code that allows the IRS to revoke a non-profit organization’s tax-exempt status if it uses tax-exempt resources – including a pastor’s pulpit – to endorse political candidates. (Although Republican lawmakers attempted to include a provision to repeal the Johnson Amendment in the recently passed tax-reform legislation, it did not survive in the final version of the bill.) Woodfill declared Trump to be more engaged “than any president I’m aware of on issues that are important to evangelical Christians,” more even than Texas’ own evangelical son, George W. Bush. “A lot of candidates talk the talk,” Woodfill tells me, “but then to actually walk the walk, and to actually execute on those campaign promises is a different thing.”
Woodfill is relentless in his continued fight against the advance of LGBTQ rights, which he portrays as a spiritual call. He is litigating a case, Pidgeon v. Parker, challenging a decision by Parker, while she was Houston’s mayor, to grant benefits to the same-sex spouses of Houston city employees who married in other states, at a time when Texas’ ban on same-sex marriage was still in place. That policy was obviated by Obergefell, but Woodfill is still litigating the case in the hopes of securing a ruling that Obergefell‘s recognition of marital rights does not extend to spousal benefits.
He spoke, in our conversation, of his fellow “warriors” who are “unafraid to get into the arena.” Woodfill is proud of his own role as a battle commander: His law-office lobby is adorned with framed news clippings of his various legal fights for the Christian cause. In Woodfill’s view, Christian warriors can carry out the mission by filing a lawsuit, running for office or speaking to the issues as a pastor at the pulpit. Days later, in his newsletter, he extends that call to arms: “To be that shining city on a hill, the church must engage in the cultural war, not abandon the field to the godless and wicked. We must attack the atheistic, Marxist left with the courage and confidence that comes from a fear of the Lord.”
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Woodfill waves away the notion that Obergefell made his legal challenge against Parker moot; in the vanguard as always, piloting new lines of attack in his urgent battle against LGBTQ rights, he insists that Obergefell is limited only to the marriage license itself and doesn’t extend to any of the attendant benefits of marriage. Comparing the case to Roe, he hints at replicating the Christian right’s anti-abortion strategy: The Supreme Court may have decided that abortion is a right, but the anti-abortion movement has spent decades hollowing out that right in the courts, in Congress and in state legislatures, which has resulted in a precipitous drop in the number of abortion providers since the early 1980s. “We’re never going to stop fighting these battles,” he says. “It’s a battle for the heart and soul of our country right now, and that battle’s being fought in legislatures, that battle’s being fought in the courts, that battle’s being fought in the classroom.”
Gov. Abbott, Lt. Gov. Patrick and Texas Attorney General Ken Paxton have joined forces to file an amicus brief in Woodfill’s case, arguing that “Obergefell‘s judgment does not include a command that public employers like the City of Houston take steps beyond recognizing same-sex marriage – steps like subsidizing same-sex marriages (through the allocation of employee benefits) on the same terms as traditional marriage.” Last year, Woodfill won a key ruling from the Texas Supreme Court that allows him to continue to litigate the question; the U.S. Supreme Court declined to review the case, allowing Woodfill to continue his crusade in Texas’ courts.
That goal – the grinding down of Obergefell’s reach – is already in full swing. In early December, the U.S. Supreme Court heard arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case in which a baker claims he should be allowed to refuse to prepare a cake for a gay couple’s wedding because of his religious objections to same-sex marriage. The baker, Jack Phillips, is represented by Alliance Defending Freedom, the same law firm that represented the Houston pastors in the subpoena fight; last September, the Department of Justice weighed in to support his position. And this month, the high court declined to review a ruling by the Fifth Circuit Court of Appeals, allowing a Mississippi law to stand that grants wide-ranging religious exemptions to those who object to LGBTQ rights. Both Trump’s packing of the courts with conservatives and his willingness to do the Christian right’s bidding make for optimism in conservative circles that the anti-Obergefell strategy could succeed.
In Trump, Woodfill says, “you have someone who arguably had a Saul to Paul experience” – referring to the decisive moment along the road to Damascus when the Apostle Paul recognized that Jesus was the Messiah. When I ask Woodfill to identify Trump’s road-to-Damascus moment, he reacts, as he frequently does, with a boisterous, boyish laugh. “That’s a great question,” he says, although the answer is ultimately irrelevant. “Trump’s likely to get another one or two Supreme Court appointments,” Woodfill muses. Those nominees, and Trump’s stacking of the lower courts with lifetime appointees who have anti-LGBTQ views, could prove decisive in whether Woodfill’s dream is eventually fulfilled. “Those appointments,” Woodfill says pointedly, “are going to be one of the most important things he’s going to do.”
This article was reported in partnership with The Investigative Fund at The Nation Institute.