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Passage of NDO will not solve transgender bathroom issues
QSanAntonio.com, August 16, 2013

A 1999 ruling made by former Mayor Phil Hardberger when he was Chief Justice of the 4th Court of Appeals will have an impact on determining whether transgender citizens can legally use a public bathroom based on their gender identity even if the proposed nondiscrimination ordinance is passed by the City Council.

The decision came in the case of Chistie Lee Littleton, a San Antonio transsexual woman who had been legally married to a man in Kentucky and denied the status of a surviving spouse after her husband's death. Hardberger agreed with 285th District Court Judge Frank Montalvo in his ruling that, because of chromosomal evidence, Littleton’s marriage to Jonathon Littleton was a same-sex marriage and therefore illegal.

“The male chromosomes do not change with either hormonal treatment or sex reassignment surgery,” Hardberger wrote in his ruling. “Biologically a post-operative female transsexual is still a male.”

Christie Lee and Jonathan Mark Littleton on their wedding day. (Photo: ChristieLee.net)

Littleton's case is cited in an August 15 article in the San Antonio Express-News where columnist Brian Chasnoff writes that opponents of the nondiscrimination ordinance are saying they would be forced to "open their restroom and locker room facilities to members of the opposite sex."(See related link below.)

In a posting on the Voices for Marriage web site, opposition leader Pastor Gerald Ripley writes: "Transgenders comprise 0. 23% of the U.S. population. Gays comprise about 3%. The straight population (97%) needs to have safeguards provided to protect the innocence of our small daughters, granddaughters, and nieces and to protect the privacy of straight females."

Chasnoff says that those assertions are false based on a statement he got from City Attorney Michael Bernard who cited Hardberger's ruling: “The law in this jurisdiction is a man who's born a man is a man so you wouldn't be able to prosecute someone for stopping a transgender person from going into a bathroom.”

Hardberger's decision is law in the thirty-two counties located in South Texas and the Texas Hill Country that comprise the Fourth Court of Appeals.

"If the proposal passes," Bernard told Chasnoff, "a business owner in San Antonio would still have the right to stop someone from going into a bathroom — regardless of that person's gender identity."

A clear cut legal decision?

Hardberger addresses a meeting of the Stonewall Democrats of San Antonio on March 19, 2007.

In March of 2007, Hardberger addressed a meeting of the Stonewall Democrats of San Antonio and discussed the Littleton case during a question and answer session.

In the only tense moment of that evening, Hardberger defended his opinion in the Littleton case by saying that he had followed the rule of law, inferring that it was a clear cut legal decision. However, he did not offer any clue as to what his personal thoughts on transgender rights might be.

A sad ruling

"It is so sad that a ruling by one judge to maintain the legal status quo for marriage is now being used to deny transgender San Antonians the right to use a bathroom that they feel is safest for them to use," says transgender activist and U.S. Army Reserve veteran Jennifer Ingram.

"People walk past and work with transgender people every day and never realize it, but then feel the need to segregate restrooms for the same people based on appearance and incorrect stigmas. If transgender people used the restroom associated with their birth sex, then they could either suffer harm or be completely denied access to either restroom," she says.

"We are entitled to our privacy and safety like anyone else, and hope that in lack of that judicial right to privacy, that business owners consider our privacy and safety just like anyone else's. We are not out there to harm anyone, we should just have the same rights as anyone else."

It is not clear how, or if, the transgender bathroom issue will be resolved. Hardberger's ruling can no longer be appealed. Transgender advocates could legally challenge the definitions he used but that would mean a long and protracted court case. Another solution would be for the city to mandate unisex public bathrooms which, because of the cost of remodeling, would face widespread opposition.

Related Links

Scaremongering ignores Hardberger opinion
By Brian Chasnoff, San Antonio Express-News, August 15, 2013
Six years before Phil Hardberger became mayor, he wrote an opinion as chief justice of the Fourth Court of Appeals that should serve to cool at least one heated objection to the city's proposal to update its nondiscrimination ordinance. The proposal would add protections for sexual orientation and gender identity.

Commentary: Separating anti-bias vote discriminatory
By Josh Brodesky, San Antonio Express-News, August 7, 2013
Just what will City Council do about Jennifer Ingram? Service is in her blood, you could say. Her family members have served in the military for generations. Every member of San Antonio's council supports veterans' rights. But some on council want to split the vote. They want to support veterans, but then vote against protections for sexual orientation and gender identity.

LGBT non-discrimination ordinance debated at Citizens Heard meeting
San Antonio Current, August 8, 2013
Allegations of government mind control and a step toward pedophilia marked the oftentimes, nonsensical testimony from anti-LGBT residents who came out to oppose a non-discrimination ordinance during a City Hall public testimony meeting.

Commentary: Sometimes you vote your conscience and leave a legacy
By Randy Bear, Concerned Citizens, August 7, 2013
Most likely this vote will pass, since only one of three undecided votes is needed for victory. All three are needed to defeat the measure. But the names of those who opposed the measure will echo more than those who support it. Why is that important?