Supporters of HERO, Mayor Parker's So Called Anti-Discrimination Ordinance, Are Parsing The Truth

The supporters of the "HERO" Bathroom Ordinance in the City of Houston are stretching the truth in their hysterical efforts to avoid voter rejection in November.

They know almost everyone opposes discrimination, so that's what they want to argue. Next up is "everyone does it, so what could be wrong?", and their final argument if that fails, "potential new residents, expanding businesses, tourists, and convention planners are likely to look askance…" of Houston, and we will lose major sports events.

A quick review of their pro-HERO arguments finds they don't hold any water because their ordinance goes far beyond that. Just read the ordinance wording in Section 17-2, "Discriminate means to intentionally distinguish, differentiate, separate, or segregate to the advantage or disadvantage of any person on the basis of a protected characteristic, except as required by federal or state law or court order… Protected characteristic means an individual's sex, race, color, ethnicity, national origin, age, familial status, marital status, military status, religion, disability, sexual orientation, genetic information, gender identity, or pregnancy."

A legal analysis of HERO reveals that "Unlike the Civil Rights Act, which narrows its scope to access to the goods and services and privileges of the public accommodation, the HERO does not limit itself to the goods, services, and privileges of the public accommodation, but rather prohibits any discrimination based upon businesses' status as providing a public accommodation, and to agents and employees simply based upon their status as agents and employees. The language extends to any decisions to discriminate even in their personal life. Since state and federal law rarely 'require' discrimination on account of gender (or any other protected characteristic for that matter), gender specific accommodations, products and services are discriminatory under the ordinance if not offered to everyone on an equal basis."

"Gender based bathrooms in public places fall within the definition of discriminate: Discriminate means to intentionally distinguish, differentiate, separate, or segregate to the advantage or disadvantage of any person on the basis of a protected characteristic. People are separated and segregated based upon a protected characteristic, namely gender. There is no federal, state law or court order requiring segregated bathrooms. Nearly every public establishment would be violating HERO, which requires unisex bathrooms.

"While gender is the most problematic of the protected characteristics, it is acceptable to 'distinguish,' or 'differentiate' people based upon other 'protected characteristics.' A store manager may instruct his employees to assist the elderly or handicapped with their bags, but by doing so violate HERO. Special parking spaces for pregnant women are discriminatory and contrary to HERO. When a carnival comes to town, it will be required to let anyone ride any ride, regardless of pregnancy or handicap and the danger it may present to those particular protected characteristics.

"However, unless it is implemented on the state or federal level, as opposed to the local level, the result could lead to chaos. Hundreds of HERO type ordinances create obstacles to businesses locating from city to city. One city may encourage affirmative action, while another may prohibit it. By participating in one city's affirmative action program, the business may be violating another city's equal rights ordinance. There are other problems, but unless there is uniformity that can only be achieved at the state or federal level, a HERO style ordinance in every city would (create) a lot of work for attorneys in assisting businesses with decisions from employment to accommodations to ensure compliance."

As for the "everyone is doing it" argument, it fails because after a review of the ordinance, Fox 26 Houston showed cities like Fort Worth, Plano, and San Antonio make it unlawful for men to go into female restrooms and locker rooms. The Houston ordinance is significantly more overreaching than similar ordinances in Texas. Why? Because they wanted it that way.

Finally, the pro-HERO supporters are trying to scare us into voting in support of the ordinance by claiming we could lose Super Bowls, and Final Fours, etc. What a dumb reason to vote for or against anything!

The HERO ordinance is Proposition One (1), and Houstonians need to vote NO.