By: Toth H.B. No. 5235
A BILL TO BE ENTITLED
AN ACT
relating to regulations and policies for entering or using a
bathroom or changing facility in a public school; authorizing a
civil penalty, authorizing a private civil right of action.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 38, Education Code, is amended by adding
Subchapter I to read as follows:
SUBCHAPTER I. SINGLE-SEX MULTIPLE-OCCUPANCY BATHROOMS AND CHANGING
FACILITIES
Sec. 38.451. DEFINITIONS. In this subchapter:
(1) "Multiple-occupancy bathroom or changing
facility" means a facility designed or designated for use by more
than one person at a time, where a person may be in a state of
undress in the presence of another person, regardless of whether
the facility provides curtains or partial walls for privacy. The
term includes a restroom, locker room, changing room, or shower
room.
(2) "Single-occupancy bathroom or changing facility"
means a facility designed or designated for use by only one person
at a time, where a person may be in a state of undress, including a
single toilet restroom with a locking door that is designed or
designated as unisex or for use based on biological sex.
Sec. 38.452. DETERMINATION OF BIOLOGICAL SEX. (a) For
purposes of this subchapter, a person's biological sex is the
biological sex correctly stated on the person's official birth
certificate as described by Subsection (b).
(b) A statement of a person's biological sex on the person's
official birth certificate is considered to have correctly stated
the person's biological sex only if the statement was:
(1) entered at or near the time of the person's birth;
or
(2) modified to correct a scrivener or clerical error
in the person's biological sex.
Sec. 38.453. SINGLE-SEX MULTIPLE-OCCUPANCY BATHROOM OR
CHANGING FACILITY. A school district or open-enrollment charter
school shall require that each multiple-occupancy bathroom or
changing facility accessible to students and located in a school or
school facility be designated for and used only by persons based on
the person's biological sex.
Sec. 38.454. ACCOMMODATIONS AUTHORIZED. (a) This
subchapter does not prohibit a school district or open-enrollment
charter school from providing an accommodation, including a
single-occupancy bathroom or changing facility or the controlled
use of a faculty bathroom or changing facility, on request due to
special circumstances.
(b) A school district or open-enrollment charter school may
not provide an accommodation that allows a person to use a
multiple-occupancy bathroom or changing facility accessible to
students that is designated for the biological sex opposite to the
person's biological sex.
Sec. 38.455. PRIVATE LEASES AND CONTRACTS. (a) A private
entity that leases or contracts to use a building owned or leased by
a school district or open-enrollment charter school is not subject
to Section 38.453.
(b) A school district or open-enrollment charter school may
not require a private entity described by Subsection (a) to adopt,
or prohibit the private entity from adopting, a policy on the
designation or use of bathrooms or changing facilities located in
the building.
Sec. 38.456. EXCEPTIONS. A designation of a
multiple-occupancy bathroom or changing facility under Section
38.453 does not apply to a person entering a multiple-occupancy
bathroom or changing facility designated for the biological sex
opposite to the person's biological sex:
(1) for a custodial purpose;
(2) for a maintenance or inspection purpose;
(3) to render medical or other emergency assistance;
(4) to accompany a student needing assistance in using
the facility, if the assisting person is:
(A) an employee or authorized volunteer of the
school district or open-enrollment charter school; or
(B) the student's parent, guardian, conservator,
or authorized caregiver;
(5) to accompany a person other than a student needing
assistance in using the facility; or
(6) to receive assistance in using the facility.
Sec. 38.457. CONSIDERATION OF CERTAIN POLICIES PROHIBITED.
In awarding a contract for the purchase of goods or services, a
school district or open-enrollment charter school may not consider
whether a private entity competing for the contract has adopted a
policy relating to the designation or use of the entity's bathrooms
or changing facilities.
Sec. 38.457. CIVIL LIABILITY. (a) Notwithstanding any
other law and except as provided by this section, a district who
violates this chapter is strictly and jointly and severally liable
for the personal injury of a student or faculty member as a result
of a school district or open-enrollment charter school’s policy to
allow persons from either biological sex to access the same
multiple-occupancy bathroom or changing facility.
(b) A claimant may not bring an action under this section if
the action is preempted by 47 U.S.C. Section 230(c).
(c) A district who violates a student’s right to privacy
prescribed by this chapter is liable for a civil penalty in the
amount of $100,000 for each violation. Civil penalties assessed
under this chapter shall be deposited in the general revenue fund.
(d) The attorney general may bring an action to collect the
civil penalty imposed under Subsection (a).
SECTION 2. This Act takes effect September 1, 2023.