LGBT rights in Texas

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LGBT rights in Texas
Texas (US)
Same-sex sexual activity legal? Legal since 2003
(Lawrence v. Texas)
Gender identity/expression No statewide anti-discrimination laws; sex-change recognized for purposes of marriage licenses
Discrimination protections None (some communities do provide local protections)
Family rights
Recognition of
relationships
None statewide (6 cities and 3 counties maintain domestic partnership registries)
Restrictions:
Texas Constitutional Amendment (2005) limits marriage to man/woman, forbids non-marriage types of same-sex unions
Adoption No restrictions[citation needed]

Lesbian, gay, bisexual, and transgender (LGBT) people in Texas face legal challenges and discrimination not faced by other people. The state denies gays and lesbians the right to marry a same-sex partner both by statute and in its constitution. Texas has a hate crimes statute that strengthens penalties for certain crimes motivated by a victim's sexual orientation, although it has rarely been invoked. Some localities in Texas provide a variety of legal protections and benefits to LGBT people.

Laws regarding same-sex sexual activity[edit]

Until the U. S. Supreme Court in 2003 declared sodomy laws unconstitutional in Lawrence v. Texas, certain sexual acts between persons of the same sex were a criminal offense in Texas, termed "deviate sexual intercourse",[1] The offense was a Class C misdemeanor, punishable by a fine not to exceed $500.[2] As of April 2011, Texas was one of the four states with statutes criminalizing same-sex sexual acts, along with Oklahoma, Kansas, and Montana.[3] The legislature has failed to act on several proposed bills that would repeal the Texas statute.[citation needed]

The Texas Department of State Health Services has developed model education programs on AIDS and HIV; however, Texas law requires that the "materials in the education programs intended for persons younger than 18 years of age ... state that homosexual conduct is not an acceptable lifestyle and is a criminal offense...."[4] In practice, few school districts include that language about homosexual conduct in their sex education materials.[5] This law also has not been modified since Lawrence v. Texas.

Texas provides an affirmative defense to a person who has engaged in unlawful sexual contact with a child under 17 years of age if the person is not more than three years older than the child. This defense, however, does not apply if the person and the child are of the same sex.[6] Texas has been the only state to make such a distinction since the Kansas Supreme Court found a similar Kansas statute to be unconstitutional in 2005.[7] During the legislature's 2013 regular session, House Bill 2403[8] by Representative Mary González, House Bill 3322[9] by Representative Coleman, and Senate Bill 1316[10] by Senator John Whitmire would have repealed this distinction; however, none of these bills was passed by its chamber of origin.[11][12][13]

Recognition of same-sex relationships[edit]

Marriage[edit]

On February 26, 2014, Judge Orlando Luis Garcia, of the United States District Court for the Western District of Texas, found that Texas's ban on same-sex marriage was unconstitutional.[14] On April 23, 2014, Judge Barbara Nellermoe, of the 45th Judicial District Court of Bexar County, found that Texas's ban on same-sex marriage was unconstitutional.[15] Both cases are being appealed by Texas Attorney General Greg Abbott.[16][17]

Domestic partner benefits provided by governmental entities[edit]

Map of Texas counties and cities that offer domestic partner benefits either county-wide or in particular cities.
  City offers domestic partner benefits
  County-wide partner benefits through domestic partnership
  County or city does not offer domestic partner benefits

Austin,[18] Dallas,[19] Fort Worth,[20] El Paso,[21] Houston,[22] and San Antonio[23] provide health insurance to domestic partners of city workers. In 2001, 52 percent of Houston voters approved Proposition 2, an amendment to the city charter prohibiting the city from providing domestic partner benefits for city employees.[24] The amendment, however, specifically permits benefits to be provided to “legal spouses” of employees, and in November 2013, the city's legal department determined it would be unlawful to continue to deny spousal benefits for legally married same-sex couples.[citation needed]

The Pflugerville Independent School District allows domestic partners of district workers to be included in the district's health insurance plan, although the workers must pay the entire cost of the coverage as they do for any dependent.[25][26]

Dallas County pays cash subsidies to help cover the cost of individual insurance policies purchased by the domestic partners of county employees. The amount of the subsidy is the same as the amount the county contributes to the group insurance plan that covers county employees, which in October 2012 was $300 per month. The county was unable to add the domestic partners to the group plan because the two other counties participating in the plan, Denton and Tarrant, opposed it.[27][28]

Travis County allows the domestic partners of county employees to participate as dependents in the county's group insurance plan.[29]

El Paso County provides health benefits to unmarried partners of county employees.[30]

Bexar County allows county employee benefits to be extended to domestic partners.[31]

2013 Texas attorney general opinion[edit]

In April 2013, Texas Attorney General Greg Abbott, in response to a legislator's request, provided his legal opinion that the Texas Constitution prohibits a political subdivision of the state from providing benefits based on a status like "domestic partnership" because it is "similar to marriage".[32] In response, officials in Travis County and Fort Worth defended the legality of their domestic partnership benefits,[33] as did those in other jurisdictions who minimized the significance of the opinion.[34][35] The Austin Independent School District decided in June 2013 not to offer health benefits to the domestic partners of its employees,[36] but changed its position in August 2013.[37]

Adoption of children[edit]

In Texas, any adult may adopt a child without regard to the adult's sexual orientation or gender identity.[38] Lesbian couples can access IVF and assisted insemination treatment.[citation needed]

Texas statutes do not prohibit same-sex second-parent adoptions or adoption by a same-sex couple and state courts have on occasion approved such adoptions. The Texas Courts of Appeals has not considered the question directly but has said that a lower court's approval of an adoption by a same-sex couple did not represent a "fundamental error".[39]

A court may not issue a supplemental birth certificate for a child adopted by two men or two women.[40] The primary purpose of the certificate is to prove the parent/child relationship to outside entities, such as schools, insurance companies, and passport offices.[41] On November 15, 2012, Representative Rafael Anchia introduced House Bill 201 for the legislature's 2013 regular session.[41] The bill would have deleted the prohibition against issuing a supplemental birth certificate for a child adopted by two men or two women.[42] The bill died in the Judiciary and Civil Jurisprudence committee of the House of Representatives.[43]

Discrimination protection[edit]

State law[edit]

Texas state law does not protect employees from discrimination based on their sexual orientation or gender identity.[44] Since at least 1999, no bill prohibiting discrimination by employers based on sexual orientation or gender identity has made it out of the committee stage in the Texas legislature.[45] During the legislature's 2013 regular session, House Bill 238[46] by Representative Mike Villarreal, House Bill 1146[47] by Representative Eric Johnson, and Senate Bill 237[48] by Senator Leticia Van de Putte would have prohibited this discrimination; however, all these bills died in their respective committees.[49][50][51]

Texas state law does not protect persons from housing or public accommodations discrimination based on their sexual orientation or gender identity or expression.[52] House Bill 2215 by Representative Jessica Farrar in the legislature's 2009 regular session would have prohibited this discrimination;[53] however, the bill died in the Judiciary and Civil Jurisprudence committee of the house of representatives.[54]

Texas state law does not protect persons from insurance discrimination based on their sexual orientation or gender identity or expression. During the legislature's 2013 regular session, House Bill 206[55] by Representative Senfronia Thompson, House Bill 541[56] by Representative Robert Alonzo, and Senate Bill 73[57] by Senator Rodney Ellis would have prohibited this discrimination; however, all these bills died in their respective committees.[58][59][60]

Municipal laws[edit]

Map of Texas counties and cities that have sexual orientation and/or gender identity anti–employment discrimination ordinances
  Sexual orientation and gender identity with anti–employment discrimination ordinance
  Sexual orientation with anti–employment discrimination ordinance
  Sexual orientation and gender identity solely in public employment
  Sexual orientation in public employment
  Does not protect sexual orientation and gender identity in employment

The following Texas municipalities have ordinances prohibiting discrimination on the basis of sexual orientation and gender identity: Austin,[61] Brownsville,[62] Houston,[63] Dallas,[64] Dallas County,[65] Fort Worth,[66][67] and El Paso,[68] San Antonio,[69] Waco,[70] and Walker County.[71]

Grand Prairie[62] has an ordinances prohibiting discrimination on the basis of sexual orientation only.

In December 2014, the city council of Plano passed an Equal Rights Policy ordinance that prohibits discrimination based on sexual orientation and gender identity.[72]

Hate crimes law[edit]

On May 11, 2001, Governor Rick Perry signed House Bill 587,[73] popularly but unofficially known as the James Byrd, Jr. Hate Crimes Act,[74] which strengthened penalties for certain crimes motivated by a victim's race, color, disability, religion, national origin or ancestry, age, gender, or sexual preference. This legislation did not cover gender identity.[n 1] House Bill 3324 by Representative Garnet Coleman in the legislature's 2013 regular session would have added gender identity or expression to the hate crimes law;[75] however, the bill died in the Criminal Jurisprudence committee of the house of representatives.[76]

In the first decade after the law took effect on September 1, 2001, local law enforcement agencies have reported about 200 crimes per year as hate crimes. However, fewer than one case a year on average has been successfully prosecuted in Texas as a hate crime.[77]

Sex reassignment[edit]

In 2009, the Texas legislature authorized a court order relating to a person's sex change to be acceptable proof of identity for a marriage license.[78]

For geographical areas under the jurisdiction of the Texas Court of Appeals in San Antonio, the 1999 case Littleton v. Prange defined that, for purposes of determining the validity of a marriage, a person's sex is determined at birth and is not changed by surgery or drug therapy.[79] This ruling allowed a person born male who transitioned to female to marry a woman in that court's jurisdiction.[80][81] In February 2014, the Texas Court of Appeals in Corpus Christi held that state law had changed since Littleton and now recognized sex reassignment, so that parties to a lawsuit contesting whether or not a marriage was an invalid same-sex marriage or a valid different-sex marriage needed to have their dispute heard by a trial court.[82]

National Guard[edit]

Following the U.S. Supreme Court decision in United States v. Windsor in June 2013 invalidating Section 3 of the Defense of Marriage Act, the U.S. Department of Defense issued directives requiring state units of the National Guard to enroll the same-sex spouses of guard members in federal benefit programs. Texas National Guard officials initially refused to comply, instead requiring Guard members to travel to federal facilities to do so.[83] Defense Secretary Chuck Hagel on October 31 said he would insist on compliance.[84] On November 26, Texas agreed to conform with DoD policy stating that state workers would be considered federal workers while enrolling same-sex couples for benefits.[85]

Politics[edit]

The Texas Republican Party holds all statewide offices in Texas and controls both houses of the Texas legislature.[86] Its 2012 party platform contained numerous statements against LGBT rights.[87]

Republican Governor Rick Perry signed a pledge from the National Organization for Marriage to oppose same-sex marriage;[88] Perry also dismissed the Lawrence v. Texas U. S. Supreme Court decision as the product of "nine oligarchs in robes".[3]

The Texas Democratic Party added certain LGBT rights to the party's platform in 1980,[89] and included same-sex marriage rights in its 2012 platform,[90] becoming the first Democratic state party in the southern United States to do so.[91]

Opinion polls[edit]

Since 2009, Texans between the ages of 18 and 29 have increasingly supported same-sex marriage at a faster rate than that of the general population. In June 2009, the University of Texas found that 49 percent of that age group supported same-sex marriage as opposed to 29 percent of the general population. In February 2013, it found that 59 percent of them did so while only 37 percent of the general population had the same opinion. Opposition from Texans between the ages of 18 and 29 dropped 12 points in the same period, from 28 to 16 percent. At the same time, opposition from the general population in Texan dropped 5 points, from 52.7 percent to 47.5 percent.[108] Glengariff Group, Inc., in conjunction with the pro-LGBT rights Equality Texas Foundation, found that support in that age group rose from 53.6 percent in 2010 to 67.9 percent in 2013 while within the general population in Texas, support rose from 42.7 percent to 47.9 percent.[109]

Summary table[edit]

Same-sex sexual activity legal Yes (since 2003)
Equal age of consent Yes
Anti-discrimination state laws for sexual orientation No
Anti-discrimination state laws for gender identity or expression No
Hate crime laws include sexual orientation No
Hate crime laws include gender identity or expression No
Recognition in state law of same-sex couples as domestic partners No
Step adoption by same-sex couples Yes[38]
Joint adoption by same-sex couples Yes[38]
Access to IVF for lesbians Yes [clarification needed]
Same-sex marriages No[110]
MSMs allowed to donate blood No

See also[edit]

Notes[edit]

  1. ^ "(a) In the trial of an offense under Title 5, Penal Code, or Section 28.02, 28.03, or 28.08, Penal Code, the judge shall make an affirmative finding of fact and enter the affirmative finding in the judgment of the case if at the guilt or innocence phase of the trial, the judge or the jury, whichever is the trier of fact, determines beyond a reasonable doubt that the defendant intentionally selected the person against whom the offense was committed or intentionally selected property damaged or affected as a result of the offense because of the defendant's bias or prejudice against a group identified by race, color, disability, religion, national origin or ancestry, age, gender, or sexual preference. (c) In this article, "sexual preference" has the following meaning only: a preference for heterosexuality, homosexuality, or bisexuality." "Article 42.014 of the Code of Criminal Procedure". Statutes.legis.state.tx.us. Retrieved December 5, 2013. 

References[edit]

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External links[edit]