Saturday afternoon, a little after four o'clock, when Lieutenant Governor David Dewhurst announced from the Senate podium that "the president's desk is clear," SB 723 (the zombie-like bill threatening the trans community of Texas) finally, and truly, died.
The bill was filed back on February 15th by Tommy Williams (R-The Woodlands), and deletes three words from Family Code Sec. 2.005: "or sex change." Sec. 2005 of the Family Code contains a long list of documents that can be used to prove a person's identity when they apply for a marriage license, including a "court order relating to the applicant's name change or sex change." The current list of acceptable documents was created in 2009 by HB 3666. At the time the list was noncontroversial, there was no debate and no opposition. The lack of controversy, however, seems to have been due to no one actually reading HB 3666, including the bill's author Lois Kolkhorst (R-Brenham). Kolkhorst was so shocked by her own momentary lapse into decency that she filed the House companion to SB 723 this year: HB 3098.
By removing those three words Williams hoped to make Littleton v. Prange, a 1999 case out of San Antonio, the binding case law for all of Texas. Littleton involved a woman, Christie Lee Littleton, who attempted to file a medical malpractice suite after the death of her husband. Mrs. Littleton was told she could not because her original birth certificate said that she was male and she was therefore “genetically male”, and her marriage invalid. (The court did not conduct genetic testing in ruling Mrs. Littleton "genetically male.") The Texas Fourth Court of Appeals upheld that ruling, but it had to strain really hard to do so. In his opinion, Justice Hardberger flatly stated that he could find no case law or statute in Texas, or for that matter anywhere in the U.S., on which to base the ruling. Instead he relied on English Case Law: Corbett v. Corbett (1970).
Of course all of that was before Kolkhorst changed the Family Code. Code trumps court precedent every time, and Littleton was only ever binding in the 4th court of appeals, a 32 county area around San Antonio, so courts in the rest of the state where never obligated to follow Hardberger's opinion. Having a state law that could allow Texans who had changed their legally recognized sex to marry people of the opposite sex apparently didn't sit well with Williams (who, incidentally, voted for the change to Sec. 2.005 of the family code in 2009, but seems to have not read what he voted for).
On March 22 the Senate Jurisprudence Committee received public testimony on SB 723. Seven people representing three organizations (Equality Texas, The Transgender Foundation of America and The Texas Transgender Education Network) testified against the bill. No one testified in favor of SB 723. In explaining his bill Williams explained that he felt it was necessary to pass SB 723 to protect the "sanctity of marriage" from gay activists who sought to redefine it.
The bill remained in in Committee until April 13, when the committee gathered at chairman Chris Harris' (R-Arlington). The initial vote was 3 in favor (Republicans Harris, Robert Duncan (Lubbock) and John Carona (Dallas)), 2 opposed (Democrats Jose Rodriguez (El Paso) and Mario Gallegos (Houston)) and one present, not voting (Democrat Carlos Uresti (San Antonio)). Joan Huffman (R-Southside Place) was absent from the initial committee vote. If, at that time, Uresti had voted nay instead of present not voting the vote would have been 3 to 3 and the bill would have failed to be voted out of committee. Huffman later arrived and the eventual vote was 4 to 2 with Uresti voting present, not voting.
The next day, Thursday, April 14th, Williams placed SB 723 on the Senate's "intent calendar" for the following Monday, April 18th. Senate rules require that bills be considered in the order they are voted out of committee, but the Senate rarely follows this rule. Instead the use a loophole in their rules that allows 2/3 of the 31 Senators to vote to "set aside" the rules and bring a bill up out of order. The intent calendar is a list of bills that Senators intend to bring up out of order. Currently the Senate has 19 Republicans and 12 Democrats which means that in order for a bill to be brought up out of order at least 1 Democrat must support it.
As soon as the bill was placed on the intent calendar action alerts were sent out by the Transgender Foundation of America, the National Center for Transgender Equality and the Texas Transgender Education Network urging people to call, fax and e-mail the 12 Senate Democrats and demand that they oppose SB 723. Those alerts were soon echoed by alerts from the Human Rights Campaign, Equality Texas, Equality Across America, Get Equal, Equality March Texas and numerous other LGB and T activist groups across the state and nation. Over the weekend of April 16th and 17th thousands of people - gay, straight, trans, cis - of every political stripe and affiliation - deluged the Democratic Senator's offices with a single message: "oppose SB 723." A staffer for one of the Senators told me that it took her over two hours on Monday morning to retrieve the phone messages left for her boss over the weekend.
SB 723 remained on the intent calendar through out that next week. Queer activists carefully monitored the Senate and responded to every hint that one of the Senators might support the bill. When a staffer for Royce West told a Houston area pastor that he would support SB 723 his office was deluged with calls and e-mails. Within hours of the initial alert his office issued a statement that would not support the bill. Uresti remained a question mark throughout the process. If he maintained his present, not voting position from committee SB 723 would not have enough votes to be brought up from the intent calendar, if he switched his vote to "yea" it would likely pass. Uresti refused to state his position on the record.
On Friday, April 22 trans Texans breathed a sigh of relief when it was announced that SB 723 has been removed from the Intent Calendar. The bill remained on the Senate's general calendar (a list of bills strictly ordered by the date they were voted out of committee), but was 74th in line and unlikely to be brought up for a vote.
SB 723 seemed defeated until Monday, May 9th, when Williams' put it back on the intent calendar for the following day. Once again alerts went out from nearly a dozen organizations encouraging people around the state to contact Senators and tell them to "oppose SB 723." The bill remained on the intent calendar for three days before being removed on Thursday, May 12.
SB 723 was moved to the General Calendar for one day, Friday, May 13th, then was placed back on the intent calendar the following Monday, May 16th. This third appearance of the bill on the intent calendar created fears that Williams had found a Democrat willing to support SB 723, with Uresti being the most likely culprit. The threat was short lived, however, as SB 723 was removed from the intent calendar the following day.
By Tuesday, May 17th, SB 723 appeared on life support. It was still on the General calendar but was 43 bills down the list and unlikely to be brought up in time to be voted out of the Senate, sent to the House, referred to committee and voted out of committee before the midnight, May 21st deadline.
So now we can celebrate! Perhaps the most overtly transphobic piece of legislation ever to be filed in the Texas Legislature has been defeated, and here's how it happened: the community spoke with one voice. Take a minute to consider how uncommon it is for organizations like GetEqual and the Human Rights Campaign to send action alerts urging the exact same thing. Think about the thousands of people all over the country who phoned, e-mailed and faxed Senators.
As a community we are very skilled at coming together to fight bad legislation. Where is that united voice when the time comes to fight for good legislation? Sometimes it gets lost as we fight amongst ourselves for perfect legislation. Sometimes it gets lost as the community bifurcates along partisan lines. Sometimes it gets lost in despair, as we give up hope that the people elected to represent us will ever recognize their responsibility to do so.
The defeat of SB 723 proves what we can do when we acknowledge that sometimes the perfect is the enemy of the good, when we set aside our differences and when we dare to hope that someday we will be granted the American promise of full citizenship. This doesn't mean that we should settle for second best, or that their isn't room for disagreement, or that their isn't an appropriate time to mourn our station. It means that when the call goes out for action we must learn to speak loudly and with one voice. That is the lesson of SB 723, and that is the only way we are going to win.