Barring a “Hail Mary” effort consisting of a series of unprecedented actions by the Texas House, legislation to prohibit gender modification surgeries and treatments for children will not be brought up for a vote in the House during this regular session.
Early Monday morning, shortly after the Texas House of Representatives concluded its business through Sunday evening, the House referred SB 1311 to the House Public Health Committee. They did this five days after receiving the bill from the Senate and several hours after the House Calendars Committee had already scheduled the last calendar of bills for consideration on Tuesday.
This move left many observers puzzled. What was the point of referring the bill after it had missed the last proverbial train out of the station?
SB 1311 is one of several bills relating to prohibiting gender modification surgeries and treatments for children. It is a legislative priority of the Republican Party of Texas.
The bill was resurrected in the Senate after languishing there since mid-April. It passed out of the Senate on May 18 by a vote of 18-13 as a response to a similar bill dying on the House calendar the week prior, due to a deadline precluding the House from considering any additional House bills.
Rules and Deadlines
A similar deadline for Senate bills is up this week. Under House rules, all Senate bills must receive a vote by Tuesday at midnight.
On Thursday of last week, State Rep. Jeff Leach (R–Allen) made a seemingly abrupt motion in conjunction with House Speaker Pro Tem Joe Moody (D–El Paso) to recess the House of Representatives until Sunday. This motion effectively signaled the death knell to any potential consideration of bills like SB 1311 that had not yet been referred to a committee.
For the regular legislative session, this almost assuredly meant the end to what has been an exhausting saga for activists hoping to end the practice of genital mutilation of children in the state.
Attorney Tony McDonald likened the late-night referral to “kicking the corpse of the bill around.” He went on to say, “The only reason I can think of is Speaker Phelan and his team are trying to deliberately confuse Texans as to who killed it.”
In fact, an informal guide at the end of the House rules signals that bills needed to be voted out of a standing committee by Saturday in order to make it to the Calendars Committee on Sunday in time to be placed on the Tuesday calendar.
According to McDonald, that chart is not strictly, or mathematically, accurate. However, the referral of SB 1311 to the committee on Monday morning left virtually no time for the bill to be considered before it was effectively dead.
After SB 1311 was referred on Monday morning, many activists around the state took hope in what they perceived as renewed life for the bill. The reality is that in order to have been considered by the upcoming Tuesday midnight deadline, it would have had to be reported from the committee and put on a calendar by noon on Monday, 36 hours before the midnight Tuesday deadline.
Given that the Calendars Committee had already set the Tuesday calendar on Sunday night, it was clear there was no plan to rapidly pass SB 1311 on Monday morning.
The Nuclear Option
Although the Tuesday deadline is merely a House rule and not a constitutional requirement, it requires a two-thirds majority to suspend it. That would mean getting the votes of Democrats who are united in opposition to the legislation.
McDonald noted that any effort to pass the bill without the support of Democrats would require unprecedented action by the Republican House majority:
If the majority of members wanted the bill to pass, there are technically loopholes in the rules they could exploit. They could use what has been called in the U.S. Senate the “nuclear option,” in which the majority “changes the rules of the House by breaking the rules of the House.” They could break House rules to schedule SB 1311 for a vote and overrule the speaker through appeal when he acts to enforce the rules against the bill. But that would be widely criticized as undermining the integrity of the House process. In short, the “nuclear option” isn’t going to happen.
Activists who support legislation banning gender modification surgeries and treatments for children can call Gov. Greg Abbott to demand that he call a special session on the issue.