‘Likely unconstitutional and illegal’: Texas attorneys discuss legal issues in Odessa bathroom ordinance

Editors Note: The video above first aired on October 23, 2024.

ODESSA, Texas (KMID/KPEJ)- On Monday, November 11, attorneys with the American Civil Liberties Union, a nonprofit organization that works to defend the civil liberties of Texans, sent a legal letter to Odessa City leaders asking for the rejection of a proposed ordinance surrounding restrooms, "because they are discriminatory, do not reflect the values of the City of Odessa, and impose significant legal liability on all private businesses and private property in Odessa that goes far beyond what was posted and considered at the October 22, 2024 council meeting."

On Tuesday, October 22, after a debate with Odessa City leaders, a proposed amendment to a City ordinance concerning restrooms was approved.

City approves divisive restroom ordinance

The new ordinance, proposed by councilman Chris Haynie, would allow for police officers to charge anyone who knowingly enters a restroom, locker room, or changing room of the opposite biological sex, defined in the ordinance as the sex, or gender, listed on a person's birth certificate.

The ordinance, which was previously said to apply only to restrooms and changing rooms on City-owned property, was changed during the October 22 city council meeting, and according to attorneys at the ACLU, is likely unconstitutional and illegal.

"Our letter explains that there are significant concerns with the Texas Open Meetings Act at the October 22nd meeting," Brian Klosterboer, an attorney with the ACLU said. "By law, by Texas law, they're required to post the agenda for the meeting 72 hours in advance...The agenda item only said that they were considering an ordinance for public restrooms in Odessa...It said nothing about private property or private buildings."

Klosterboer said the language now implies that all private property in Odessa, including small gas stations, coffee shops, private businesses, and churches, are subject to this ordinance.

In the legal letter sent by ACLU attorneys and advocates, several concerns were discussed, including how the expansion of the ordinance could potentially bankrupt businesses.

"The proposal to place a bounty of $10,000 per occurrence on anyone using a restroom on private property could bankrupt many businesses and Odessa residents, as well as flood the courts with frivolous lawsuits," the letter states.

Attached below is the letter sent to city leaders by ACLU attorneys in its entirety:

Klosterboer added that the legal team at the ACLU believes there was not adequate public notice of the ordinance changes.

"Small business owners, churches, nonprofits, other organizations in Odessa have not really been given adequate notice that their private property rights are now being infringed upon by their local government," Klosterboer said.

Other legal issues ACLU highlighted in their legal letter to city leaders included how the proposed amendment violates Odessans' rights to be free from sex discrimination, hinders the well-being of Transgender, non-binary, and intersex people, infringes the rights of business and property owners, imposes limitless legal liability for all Odessans, exposes the city itself to liability through possible violations of the Texas Open Meetings Act, and risks unlawful privacy violations.

Overall, Klosterboer said that the seven-page amendment appears to be "pieced together from maybe different types of laws or proposals," and, "doesn't make a lot of sense legally, and it also doesn't make sense practically."

On Tuesday, October 12, City Council members and leaders will discuss and consider amending the bathroom ordinance. We will provide you with more updates on the outcome of this ordinance as they are made available.

"We're hoping that they reject these proposed changes because there's really no reason that anyone in the community has expressed for why this ordinance is necessary. It's discriminatory, it's going to create liability for Odessa, as well as Odessa residents. But at the minimum, we're also asking that they at least postpone the vote on this ordinance and delay consideration," Klosterboer said.