On November 13, 2024, the Texas Legislature introduced House Bill 239 (HB 239), known as the Texas Women’s Privacy Act, aiming to mandate that bathrooms, locker rooms, family violence shelters, prisons, and other “private spaces” in state and county buildings be segregated strictly based on an individual’s “biological sex.” If enacted, this legislation would impose significant penalties on public institutions that fail to comply, further restricting the rights of transgender Texans to access facilities aligning with their gender identity.
HB 239 echoes the failed Senate Bill 6 (SB 6) from 2017 but introduces stricter definitions and increased penalties. The bill defines “biological sex” based solely on the sex listed on an individual’s original birth certificate, disregarding any legal amendments made to reflect a person’s gender identity. Penalties for non-compliance start at $5,000 for the first offense and escalate to $25,000 for subsequent violations, a substantial increase from the $1,500 fine proposed in SB 6.
HB 239 Moves to Committee
After its introduction, HB 239 was referred to committee for further discussion on February 25, 2025. This marks a critical step in the legislative process, as committee deliberations will determine whether the bill moves forward for a full vote in the House. If it clears committee, it will head to the House floor for debate and then to the Senate. Given the current political climate in Texas, the bill has a strong chance of advancing, though opposition is expected from LGBTQ+ advocacy groups, legal organizations, and business leaders.
Chances of HB 239 Becoming Law
Given the current Republican majority in the Texas Legislature and the support from key figures like Lieutenant Governor Dan Patrick, HB 239 has a considerable chance of passing. The bill’s introduction coincides with a national shift in policies affecting transgender rights, particularly following the inauguration of President Donald Trump for his second term on January 20, 2025. On his first day back in office, President Trump signed Executive Order 14168, titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” which mandates that federal agencies recognize gender strictly as male or female based on biological sex assigned at birth.
This federal stance may embolden state legislatures, like Texas, to pursue more restrictive measures against transgender individuals. However, it’s important to note that similar bills have faced significant opposition from businesses, advocacy groups, and the public in the past. The economic backlash and public outcry that contributed to the downfall of SB 6 in 2017 could resurface, potentially influencing the bill’s progression.
Potential Legal Challenges and Constitutional Angles
If HB 239 becomes law, it is likely to face immediate legal challenges on several constitutional grounds:
- Violation of the Equal Protection Clause: The Fourteenth Amendment prohibits states from denying any person equal protection under the law. HB 239’s exclusion of transgender individuals from facilities aligning with their gender identity could be viewed as discriminatory, failing to meet the heightened scrutiny standard applied in cases involving gender identity discrimination.
- Conflict with Federal Policies and Court Rulings: Despite recent federal shifts, the Supreme Court’s decision in Bostock v. Clayton County (2020) extended Title VII protections to include gender identity. While the Trump administration’s executive orders aim to redefine gender and limit protections, these orders are subject to legal challenges and have faced injunctions. For instance, a federal judge recently blocked an executive order that threatened funding for institutions offering care to transgender youth, highlighting the judiciary’s role in checking executive actions.
- First Amendment and Right to Privacy Claims: Forcing individuals to use facilities that do not align with their gender identity could infringe upon their rights to privacy and free expression. Courts have recognized that personal decisions about one’s identity and body are protected under the Constitution.
- Preemption by Federal Law: Federal civil rights laws, including Title IX, prohibit discrimination based on sex, which has been interpreted to encompass gender identity. State laws like HB 239 that contradict these protections could be challenged on the grounds of federal preemption.
Impact on Transgender Texans
The enactment of HB 239 would significantly impact transgender individuals in Texas, leading to increased discrimination and marginalization. Restricting access to appropriate facilities can result in heightened anxiety, health risks, and social ostracism. Moreover, such legislation could deter transgender individuals from participating in public life, accessing necessary services, or seeking assistance in situations of abuse or homelessness.
Conclusion
As HB 239 moves through the legislative process, it is crucial for transgender Texans, their families, and allies to stay informed and engaged. The shifting federal landscape, marked by recent executive actions, adds complexity to the legal environment surrounding transgender rights. Advocacy groups are preparing to challenge laws and orders that infringe upon the rights of transgender individuals, emphasizing the importance of solidarity and legal vigilance in the face of evolving policies.
Stay informed with TransVitae for ongoing coverage of HB 239 and other policies affecting the transgender community. If you or someone you know is impacted by this legislation, consider reaching out to Lambda Legal, the ACLU of Texas, or the Transgender Law Center for legal resources and support.
