Anti-HERO ads center on bathroom use, city complaint data shows other problems

HOUSTON (KTRK) -- NOTE: An earlier version of this report suggests that the City of Houston received 135 complaints under the HERO ordinance. The city has received 11 as noted below. The city received 135 discrimination complaints from Houston employees about workplace issues. We regret any confusion it caused.

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After a lengthy city council debate and an even longer court battle, Houston's Equal Rights Ordinance is up for a vote next month. You will be asked to decide the future of the law.

Radio ads urging a no vote featuring former Astro Lance Berkman label led it 'the bathroom ordinance' and express concern that the city law could open up women's restrooms, locker rooms and showers to "troubled men."

HERO does not create rights for protected classes of Houstonians to do anything. It allows them to file complaints if they've been discriminated against. HERO requires the Houston Inspector General to work toward a resolution before filing a criminal case. If a case is filed, it is heard in Houston's municipal court.

A section of the law originally carved out a specific right for transgendered Houstonians to use whichever restroom they felt was best, but it was removed during the council debate.

The ordinance does prohibit discrimination against transgendered Houstonians, but Eyewitness News looked deeper at the claims that this could open women's bathroom doors. It has been against the law in Houston to use the opposite sex's bathroom to cause a disturbance for decades.

A City of Houston ordinance passed in June of 1972 says:

It shall be unlawful for any person to knowingly and intentionally enter any public restroom designated for the exclusive use of the sex opposite to such person's sex without the permission of the owner, tenant, manager, lessee or other person in charge of the premises, in a manner calculated to cause a disturbance.

(Code 1968, 28-42.6; Ord. No. 72-904, 2, 6-2-72)

A former Houston City Attorney told Eyewitness News anything other than using the toilet could be characterized as "causing a disturbance."

The law remains in effect. It was most publicly challenged in 1990 when a woman at a George Strait concert used the men's room at the Astrodome. She was charged with violating that section, and according to news accounts at the time, it took a Houston jury just 23 minutes to acquit her. One juror told the New York Times, "She just did what she had to do."

We've asked the city how often the ordinance has been violated. Those numbers are not readily available.

But the city did release statistics on the complaints that have come in to the city since HERO went into effect. Before courts shut down HERO enforcement, only 11 complaints came in. Five were based on Racial Discrimination, five on LGBT issues and the last one on gender-related discrimination.

From 5/28/14 to 9/2/15 the City of Houston received 135 complaints from employees complaining about discrimination at the workplace. They are covered by city rules not the HERO ordinance. Proponents of HERO got that list through a TPIA request. While not a perfect comparison - this is how those complaints break down:

56 percent of the discrimination complaints based on Racial discrimination

17 percent based on Gender

13 percent on Familial Status

5 percent on Sexual Orientation/Gender Identity

The rest are based on age, veteran status, national origin and disability.

Due to the court case stopping HERO enforcement, none of these complaints has made it to court.

A version of the anti-HERO ad currently airing on Houston radio stations will start airing on TV next week.

Election day is November 3.