On September 22, Governor Greg Abbott signed Senate Bill 8, Texas’ new “bathroom bill,” into law, marking another escalation in the Republican war on the rights of trans people. What may be less evident on first glance is how the law also represents an attack on public institutions—and on the legal system writ large.
Andrea Segovia, senior field and policy analyst for the Transgender Education Network of Texas, said the law, which bans trans people from using their preferred bathrooms in certain public buildings, will make them feel less safe engaging in a basic biological function anywhere outside of their homes. “Every time that an anti-trans bill passes, it is another attempt at removing trans people from the public eye,” she told the Texas Observer.
Trans folks and LGBTQ+ advocates spent countless hours testifying against various iterations of the bathroom bill over the eight years since the first one was proposed in this state, only for the latest version to be fast-tracked through the Legislature during this year’s second special session. Major corporations, whose opposition to these kinds of laws historically helped prevent their passage, have largely gone silent on the 2025 versions of this law that have passed or been proposed around the country.
With anti-trans policies now openly backed by President Donald Trump’s federal government, it’s perhaps unsurprising that state officials feel confident passing more extreme measures. But beyond the harmful effects the law is likely to have on transgender and gender non-conforming people, it may also allow Republicans to weaponize transphobia against public institutions. The law enables the state to investigate and levy massive fines against schools, libraries or other entities that they suspect of violations. In addition, it’s designed to be especially difficult to challenge in court, in ways that experts say are likely to be unconstitutional.
SB 8 forces transgender and gender non-conforming people to use the bathroom that matches the sex they were assigned at birth, in publicly operated institutions like schools, libraries, and even domestic violence shelters.
Segovia said that the law will inevitably make trans people less safe, especially thanks to its enforcement mechanism which encourages individuals to report purported violations to the attorney general’s office. “This is scary,” she said. “It’s adding to the vigilante state we live in.”
There are, however, important limits to the law, which goes into effect in December. Notably, it doesn’t affect private businesses, nor create any criminal penalties targeting bathroom users. The law also doesn’t obligate trans people to answer any questions about their identity or their gender. “It’s assumed that trans people are going to be fined, arrested or kicked out of places when in reality it’s the [public] entity that takes on the burden,” Segovia said.
Potential violations of the law will be investigated by the Texas Attorney General’s Office, which then gives the entities involved a 15-day grace period to take as yet unspecified steps to respond to the violation. If the institution is still found to be in violation, fines start at $25,000 for the first infraction and $125,000 for subsequent violations. According to the law, “Each day of a continuing violation of this chapter constitutes a separate violation.” As has become increasingly common in Texas, SB 8 also allows private individuals to sue parties—in this case, public entities—for alleged violations of the law.
Zeph Capo, president of Texas AFT, a teachers’ union representing 66,000 members in the state, told the Observer he anticipates that many complaints would come from third parties who weren’t even present when the supposed infraction of the law occurred. “Are the complainants going to be chasing people down in bathrooms?” he asked. “That sounds hostile to me, and it’s not really clear.”
Republicans included provisions in the law that could present significant obstacles to anyone seeking to challenge the legality of SB8. In what multiple legal experts said was highly unusual, and legally questionable, the law grants sovereign immunity to the state, governmental immunity to cities and other jurisdictions, and qualified immunity to government officials who carry out the law. This attempts to protect the state government, local municipalities, and their employees from being sued over their implementation of SB 8. As written, this immunity even extends to potential violations of constitutional rights under the law.
This attempt to dodge legal accountability is “pretty wild,” said Dale Melchert, a senior staff attorney at the Transgender Law Center. “Typically, constitutional violations are highly protected in law, both at the state and federal level,” he said. “So I can’t imagine that it is constitutional, but we’ll see.”
It also prohibits state courts from issuing any sort of declaratory or injunctive relief from enforcement of the law or otherwise deem the law to be unconstitutional. SB 8 also grants the recently created Fifteenth Court of Appeals—which is filled with Abbott’s appointees—with exclusive jurisdiction over any appeals of civil action under the law.
SB 8 is “the most plainly unlawful, undemocratic, legislation I’ve seen in recent history,” said Nicholas Hite, a senior attorney at Lambda Legal, a LGBTQ+ legal defense nonprofit. “It tries to shut down the basic right of every citizen to seek relief in our courts, which is one of the basic principles of American democracy.”
Hite said many similar laws around the country are currently the subject of litigation, but Texas’ immunity clauses attempt to prevent this. The law also attempts to discourage legal challenges by making attorneys who sue jointly liable with their clients for any fines or legal fees incurred by the state or local government, if they lose their case.
“Texas has chosen to go even further beyond the pale by [not only] saying we’re going to pass this unconstitutional law that targets trans and gender non-conforming people, or, frankly, anybody that a stranger on the street thinks is gender non-conforming,” he said. “We’re going to go one step beyond that, and try and close the courthouse doors to people who are just trying to defend their constitutional right.”
In the aftermath of the second deadliest flood in the state’s history, Republicans used that emergency as an excuse for a special session that attacked democracy and the human rights of Texans. Jacob Reyes, the Texas representative for the LGBTQ+ advocacy group GLAAD, called it a “distraction from the real issues that we all care about.” As Reyes wrote in a statement, “SB 8 seeks to establish a precedent that treats marginalized communities in the Lone Star State as less than equal. In reality, trans folks are parts of Texas families, workplaces, schools, and communities, and we are here to stay.”
It also mandates that prisoners be assigned to prison units that match their sex assigned at birth. Ash Hall, a policy analyst at the ACLU of Texas, said this portion of the law likely violates the federal Prison Rape Elimination Act, which mandates more careful placement of transgender inmates. “I don’t think that we can afford to forget about those [incarcerated] folks, especially as we’re entering a time period where I suspect that our government is hoping that more and more trans people will end up in the carceral system.”
With SB 8 now on the books in Texas, it becomes part of an increasingly common trend in which Republican state legislatures have passed discriminatory laws that pass the responsibility of enforcement to the local level.
“Those schools, those libraries, those domestic violence shelters, are now obligated to enforce a law that they don’t agree with, that they don’t want and that they maybe don’t think serves their community,” Hite said. But legislators have passed that buck onto them, and are in some ways holding them hostage, saying, ‘you have to do our dirty work.’”
The post How the Bathroom Bill Weaponizes Transphobia Against Public Institutions appeared first on The Texas Observer.
