The Limits of Public Polling on Texas Bathroom Access

Photo by Qiling Wang/The Texas Tribune

Advocates of proposed legislation that would constrain or reverse efforts by local governments to guarantee transgender people access to public facilities of their choice repeatedly have invoked public opinion polling as evidence of broad public support for the legislation. The currently available polling, however, provides only tentative information about public attitudes toward the highest profile legislation, Senate Bill 6. Because access to public facilities is a comparatively new issue on the public agenda, most people are still forming opinions about it, which makes attention to the intentions and uses of different kinds of polling critical to assessing how polling is used for advocacy on this and other issues.

There has been little time to conduct polling related to the specific proposals contained in Senate Bill 6, sponsored by Sen. Lois Kolkhorst, R-Brenham. The limited amount of polling that does exist is not definitive about how the public might view this bill. As currently written, SB 6 would establish new prohibitions on local authorities, including preventing local government entities from guaranteeing transgender people's access to public restrooms and changing facilities, and would designate gender identity based on one’s birth certificate.

Polling responses to particular messages can determine which presentation of an issue and/or position is likely to garner the most support or opposition. Advocacy of a particular political or policy objective typically guides the construction of such polls.

By contrast, polling focused solely on assessing attitudes and opinions is generally designed to measure sentiments as accurately as possible without regard to how useful the result may be in advocating for a specific position.

Pollsters executing effectively in either type of enterprise take into account the fact that the construction of a question — including the word choices in both the question and the possible response options, and how and how much information is conveyed to the respondent, among other things — inevitably affects the result. The more one is focused on message testing, the more one is interested in how these choices might shape responses in a specific direction.

In attempting to measure underlying attitudes, the goal is the opposite: to minimize the degree to which the content of a question intentionally shapes the responses. Inevitably, critics of non-partisan poll results point out that different wording may generate different results. This is almost always correct, but the most important question is whether an item assessed the intended attitude without triggering bias that skewed responses in one direction or another.

This distinction between the purposes of different kinds of polls has become relevant to the recent discussion of SB 6 because the result Lt. Gov. Dan Patrick referred to at a Tribune event is a clear example of message testing. That poll, done by Baselice & Associates and posted on Patrick’s political website, contained the following item:

Under current law, it is NOT illegal for men to enter a public women's restroom, locker room or shower. Do you support passing a state law that would make it illegal for men to enter in a public women's restroom, locker room or shower in order to assure women have privacy and can feel safe.

Lt. Gov. Patrick, referencing the 69 percent affirmative response to this question, has claimed that a majority of Texans, including Democrats, Republicans, and Independents, support SB 6.

This suggests two things, neither of which is especially surprising: Texans don’t think men should go into women’s restrooms, and Texans support ensuring that women have privacy and feel safe in restrooms, locker rooms and/or showers.

This is a classic example of a message test. The poll item assesses more than two objects (many more in fact), with the goal of driving respondents towards a particular response by attaching at least one extra object that will push the respondents in a predictable direction. In this question construction, choosing to oppose passage of a state law making it illegal for men to enter women’s restrooms also requires the respondent to reject supporting safety and privacy for women. The result is not a direct measure of the attitudes surrounding transgender people's access to public facilities or the prohibition of local government efforts to ensure access; the core subjects of SB 6 are not directly referenced (or referenced at all) in the item above.

The lieutenant governor also pointed to the October 2016 University of Texas/Texas Tribune Poll, which was not testing messages, as supporting his position, saying to Evan Smith in a public interview, “This is very clear, the people of Texas, your poll, our poll, African American, Hispanic, Anglos don't want men in the ladies room.” He was presumably referring to this item:

Which of the following comes closer to your opinion? Transgender people should have access to public restrooms based on...

  • their birth gender
  • their gender identity
  • Don’t know/No opinion

This was one of two very similar questions in the October UT/TT Poll that addressed views on access. The results showed significantly less support for the lieutenant governor’s expressed opposition to transgender people's access to public facilities corresponding to their gender identity than did the items on the message test in the Baselice survey. In the UT/TT Poll, 51 percent of Texans responded with birth gender, while 31 percent said gender identity, with the remaining 18 percent saying that they were unsure. The slight overall majority result was composed primarily of Republicans, among whom 76 percent said “birth gender.” Fifty percent of Democrats said “gender identity.”

Support from 51 percent of the sample provides (barely) literal support for the lieutenant governor’s claim of a majority supporting his resistance to guaranteed transgender people's access to public facilities. But it is far from definitive in providing evidence to support his claim for broad public support for legislation that would create new state laws.

The UT/TT item asked what Texas voters think transgender individuals should be able to do, not about what and whether the state should or should not do in response to what was, until recently, a non-issue. The UT/TT item wasn’t asking about SB 6, which didn’t exist (at least publicly) at the time the poll was conducted.

Conflating a message test that avoids mention of the term “transgender” with another result that addresses attitudes toward gender/gender identity as the basis for access to facilities also seems incongruous with recent efforts by the bill’s supporters to claim — as SB 6 author Lois Kolkhorst did in the aftermath of unveiling her bill — that SB 6 is “really not about the transgender.” If that’s the case, the UT/TT item shouldn’t bear on the matter at hand. It did not probe attitudes about whether men should be in women’s restrooms, or whether women should be assured of privacy or safety.

The continuing reliance on merging these two different kinds of polling in efforts to claim unambiguous public support for SB 6 actually underlines a different reading of the aggregate polling results to date. Rather than indicating a stable universe of considered public opinion, such as is evident on issues like the death penalty or abortion, the polling on transgender issues reveals unformed public attitudes on a subject that people have only recently begun to think about as a policy issue.

The lack of clear and fixed attitudes toward access to public facilities is evident in the wider body of polling beyond Texas on the subject. Several national polling results from different organizations during the last year suggest that measures of attitudes toward policies related to transgender people are highly sensitive to variations in what and how people are asked. This sensitivity likely results from the subject’s recent entry into the public discussion. Consequently, attitudes toward transgender people and the policies related to them are still largely unformed and so not very fixed. This lack of formed attitudes stretches from people’s understanding of the basics (i.e. knowing what it means to be transgender) to their views of various facets of related and still developing policies (such as whether restroom access should be regulated, and, if so, how and by whom).

The venerable Frank Newport of Gallup does an excellent job of showing how even slight variations in question wording can produce seemingly inconsistent or even contradictory results in this fluid attitudinal context. For example, Newport speculates that different results among questions posed by CNN, the CBS/New York Times Poll, and Gallup on the general topic of access to public facilities could have turned on people’s responses to different word choices such as “policy” versus “law” and “bathroom” versus “facility,” among other variations in word choice and phrasing that might make less of a difference were these attitudes more developed. The variation in polling results has fed differences of interpretation by policymakers and by reporters attempting to interpret mixed signals from polling that lacks both the advantage of historical results or consistent wording.

These differences of interpretation are much in evidence in the political messaging being deployed in Texas in the debate over SB 6. The prominent invocation of polling data in the ongoing debate over transgender people's rights provides a good opportunity to recognize that all claims about public opinion on the issue should be viewed tentatively until we accumulate a more robust body of public opinion data.

Texas’s conservative political culture likely provides a basis of support for some of the tenets being used to defend SB 6. Certainly many poll results suggest that conservative views on gender identity, civil rights and other issues that intersect the efforts to limit transgender people's rights and protections are prominent among the majority of Republican voters. Yet polling also reveals potential pockets of opposition that warrant more direct, sustained research on attitudes that are specific to SB 6 — such as the roles of different levels of government, more direct questions about possible economic trade-offs and perceptions of discrimination. SB 6 explicitly limits local rule-making, legislates transgender people's access to a range of facilities and, if significant corporations and interest groups are to be taken at their word, has at least some likely economic consequences for the state (even if some critics have over-reached in their projections).

Public polling rarely, if ever, directly addresses the specific content of a bill or proposed policy — and even rarer still, its trade offs — instead looking to assess attitudes within the often very limited rubric of public consideration and understanding of policy, either proposed or in effect.

Polling in Texas provides thin evidence of a broad mandate in either direction on this gender issue. Attitudes surrounding it are likely to be multifaceted and influenced by potential crosscurrents in opinion: ideological predispositions, elite cues, attitudes towards government intervention in local affairs and/or social affairs and the real or imagined economic consequences of those actions, to name a few.

However distinct their approaches, both the ambitions of the UT/TT Poll to measure attitudes as neutrally and narrowly as possible, as well as the message testing approach, take place amidst these complexities. Any efforts to find a clear mandate for or against SB 6 in the available polling at this point should be viewed as overreach.

Disclosure: The University of Texas at Austin has been a financial supporter of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here

James Henson

Texas Tribune pollster and director of the Texas Politics Project at the University of Texas at Austin


Joshua Blank

Research director, Texas Politics Project, University of Texas at Austin