For Octavio Armendariz, using the bathroom while he’s home is no big deal. When the autistic eight-year-old is out in public with his mom, it’s a different story.

Rosanna Armendariz isn't comfortable with Octavio, who has the social and emotional development of a three-year-old, navigating the men’s bathroom alone. So she brings him into the women’s bathroom with her instead.

“We started getting looks from the time he was around seven," she said. "I guess by that age many boys are using the men's room, and since autism is an invisible disability, people don't automatically realize why my son would be in the women's room with me.”

As lawmakers this summer debate yet another controversial measure regulating bathroom use based on biological sex, disabled Texans say they — like many transgender men and women — believe the Legislature is further complicating something that’s already difficult to navigate.

On Tuesday, the Texas Senate advanced Senate Bill 3, which would restrict bathroom use in local government buildings and public schools based on the sex listed on a person’s birth certificate or DPS-issued ID, and gut parts of local nondiscrimination ordinances meant to allow transgender people to use public bathrooms of their choice.

The bill's author, state Sen. Lois Kolkhorst, R-Brenham, argues her measure is meant to protect privacy in the bathroom and would dissuade sexual predators from taking advantage of trans-inclusive bathrooms policies.

Rosanna Armendariz plays a motor skills game with her son, Octavio, at their home in El Paso, Texas. Ivan Pierre Aguirre for The Texas Tribune

But for many caretakers and disabled Texans, the issue goes much deeper. Rosanna Armendariz said she fears if a “bathroom bill” passes, people might think her son is breaking the law — even though the Senate's version of the measure exempts people with disabilities.

“As my son gets older, someone might get upset and call the police if they see him in the women's room,” she said. “It's horrifying to think me or my disabled son could be subject to criminal prosecution just for using the toilet."

In an effort to address this exact issue, state Sen. Eddie Lucio Jr., D-Brownsville, tacked an amendment on to Kolkhorst's bill on Tuesday exempting disabled Texans from having to use the bathroom matching their biological sex.

Advocates for the disabled say it's not enough: Not all disabilities are obvious, and even with Lucio's amendment, they say, a person with a disability would be forced to prove they have one. 

“When you look at the word ‘disability,’ it covers a very broad scope of people — from mental illness to physical disabilities to someone who might be in a wheelchair,” said Chase Bearden, director of advocacy and engagement for the Coalition of Texans with Disabilities. “You don’t know what’s going on behind the scenes.”

Initial bill fell short

A similar bill to regulate bathroom use failed during this spring's regular legislative session, and Gov. Greg Abbott put “privacy” legislation on his wish list for lawmakers to address during this summer's 30-day special session, which began July 18. Despite staunch opposition from the business community, law enforcement, LGBT advocates and transgender Texans, the Senate version of the bill was fast-tracked through the upper chamber and is now on its way to the Texas House, where it likely will get a chilly reception.

The measure senators supported during the regular legislative session, Senate Bill 6, included specific exemptions for people who needed assistance using the bathroom, including children younger than 10 and people accompanying children into a bathroom different than their biological sex.

The original text of this summer's bill, SB 3, listed no such exemptions.

“Because of some of the signals we received from the governor’s office, we left [those exemptions] out,” Kolkhorst said when explaining her bill on the Senate floor.

The amendment Lucio added Tuesday exempts people giving and receiving assistance in the restroom, including children under 8, the elderly and disabled Texans, among others.

Amy Litzinger poses outside of a bathroom stall that's too small for her and her attendant. Litzinger, along with many other disabled Texans, is concerned about the implications a "bathroom bill" will have on her and her attendants. Callie Richmond for The Texas Tribune

"Sen. Lucio added an amendment to clarify that anyone with a disability or their caregiver is exempted, which furthers the point that this legislation protects the privacy and dignity of everyone,” Kolkhorst said in a statement to The Texas Tribune.

But advocates argue the language of the amendment unfairly leaves the burden of proof on caretakers.

“It’s a good thing that legislators carved out an exception that recognizes the common use of caretakers for assistance, but the exception is not broad enough to address the reality of disability in the bathroom,” said Lucille Wood, a clinical professor at UT-Austin’s School of Law. 

While the amended bill mirrors federal protections for disabled Texans and their caretakers, Wood said, it gives “sex segregation a voice,” which she worries will impact how disabled Texans navigate using the bathroom.

"It’s ratcheting up the political climate in which caretakers will have to demonstrate the person they’re helping really has a disability," she said. "It is a climate in which fear is ruling the day. Fear over common sense."

Bathrooms already an ordeal

Amy Litzinger knows firsthand what it's like to endure stares in the restroom. The 29-year-old from Austin has quadriplegia and uses an attendant for everything from getting dressed to eating meals — and of course, using the bathroom.

"I can’t transfer myself in and out of my chair, so I’m never in a bathroom alone,” Litzinger said. “... I literally can’t go the bathroom by myself — physically. I don’t really have a choice.”

Before a committee meeting in the Texas Health and Human Services building, Amy Litzinger and one of her attendants, Jamie Massaro, demonstrate that they must leave the accessible bathroom stall door open because it is too small. Callie Richmond for The Texas Tribune

One of her attendants is transgender, she said. And when her attendant isn’t available, it’s sometimes up to her father to help her. While the current version of the bill wouldn't penalize her attendant or her father, she said it adds to the stigma.

“Believe me, people aren’t taking opposite-gender people into the restroom because they want to,” Litzinger said. "... I don’t think most legislators understand how much an ordeal bathrooms already are for most of us that have disabilities.”

Read related Tribune coverage:

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  The rift over the bathroom bill in the Texas Legislature won't end with the special session; it's a prelude to the March 2018 primary elections. [link]

  
  


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  The Texas Senate backed a bill that would bar some transgender people from using bathrooms that match their gender identity in schools and buildings overseen by local governments. The bill would also nix parts of local nondiscrimination ordinances. [link]