LGBT rights in Texas

LGBT rights in Texas
Texas (US)
Status	Legal since 2003 (Lawrence v. Texas)
Gender identity	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
Restrictions	Texas Constitutional Amendment (2005) limits marriage to man/woman, forbids non-marriage types of same-sex unions
Adoption	No restrictions

Lesbian, gay, bisexual, and transgender (LGBT) people in Texas face legal challenges and discrimination not faced by other people.

Texas has a hate crimes statute that strengthens penalties for certain crimes motivated by a victim's sexual preference (the term used in Texas law, as quoted in a note in this article), although to date it has rarely been invoked. LGBT people may adopt children in Texas, and some localities in Texas provide a variety of legal protections and benefits to LGBT people.

Laws regarding same-sex sexual activity

See also: Sodomy laws in the United States before 2003

Until the U. S. Supreme Court in 2003 declared the applicable law unconstitutional in Lawrence v. Texas, certain sexual acts between persons of the same sex were a criminal offense. Termed "deviate sexual intercourse", the offense was a Class C misdemeanor, punishable by a fine not to exceed $500. Despite the U. S. Supreme Court ruling, the statute has not been removed from the Texas Penal Code. Texas is one of four states where unenforceable laws applying only to same-sex sexual acts have not yet been repealed by legislative action. (The others are Oklahoma, Kansas, and Montana.) During the legislature's 2013 regular session, House Bill 1701 by Representative Jessica Farrar, House Bill 3232 by Representative Garnet Coleman, and Senate Bill 538 by Senator José R. Rodríguez would have repealed this law; however, none of these bills was passed by its chamber of origin.

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...." In practice, few school districts include that language about homosexual conduct in their sex education materials. This law also has not been modified since Lawrence v. Texas. During the legislature's 2013 regular session, House Bill 1696 by Representative Farrar, House Bill 1701 by Farrar, House Bill 3232 by Representative Coleman, and Senate Bill 538 by Senator Rodríguez would have repealed this law; however, none of these bills was passed by its chamber of origin.

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. 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. During the legislature's 2013 regular session, House Bill 2403 by Representative Mary González, House Bill 3322 by Representative Coleman, and Senate Bill 1316 by Senator John Whitmire would have repealed this distinction; however, none of these bills was passed by its chamber of origin.

Recognition of same-sex relationships

See also: Same-sex unions in the United States

Same-sex marriage ban

In 1997, the Texas legislature prohibited the issuance of marriage licenses to same-sex couples. House Bill 1300 by Representative Lon Burnam in the legislature's 2013 regular session would have repealed this prohibition; however, the bill died in the State Affairs committee of the house of representatives.

In 2003, the legislature enacted a statute that made void in Texas any same-sex marriage or civil union. This statute also prohibits the state or any agency or political subdivision of the state from giving effect to same-sex marriages or civil unions performed in other jurisdictions. During the legislature's 2013 regular session, House Bill 1300 would have repealed this prohibition in its entirety; however, the bill died in committee. Senate Bill 480 by Senator Juan Hinojosa would have repealed only the civil union prohibition; however, this bill also died in committee.

The constitutionality of refusing to recognize a lawful marriage performed in another state remains in dispute. Generally, the Full Faith and Credit Clause found in Article IV, Section 1 of the U. S. Constitution would prohibit a state from doing this, but some discretion has also been given to states in certain matters. The clause also gives Congress the power to "prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."

On November 8, 2005, Texas voters approved a proposition that amended the state constitution to define marriage as consisting "only of the union of one man and one woman" and prohibiting the state or any political subdivision of the state from creating or recognizing "any legal status identical or similar to marriage." The Save Texas Marriage political action committee, which opposed the amendment, argued before the vote that the poorly drafted amendment would ban all forms of marriage, a view the Texas attorney general rejected when the language was considered by the Texas senate. Kelly Shackleford, the president of the Free Market Foundation and a supporter of the amendment, said, "The words clearly recognize marriage in Texas as between a man and a woman...." and do not ban marriage in general.

During the legislature's 2013 regular session, House Joint Resolution 77 by Representative Rafael Anchia, House Joint Resolution 78 by Representative Garnet Coleman, and Senate Joint Resolution 29 by Senator José R. Rodríguez would have repealed the constitutional definition of marriage; however, all these resolutions died in their respective committees.

Divorce proceedings in Texas courts for marriages performed in other states

On October 2, 2009, a Texas district court judge in the case of In Re Marriage of J.B. and H.B. granted a divorce to two men married in Massachusetts, ruling unconstitutional the state's same-sex marriage ban. On August 31, 2010, the Fifth Court of Appeals in Dallas reversed the lower court, ruling, among other things, that the same-sex marriage ban does not violate the Equal Protection Clause of the Fourteenth Amendment.

On January 7, 2011, the Third Court of Appeals in Austin in the case of State of Texas v. Angelique S. Naylor and Sabina Daly rejected, on procedural grounds, the Texas attorney general's appeal of a divorce granted by a lower court to a same-sex couple married in Massachusetts.

Both cases are pending before the Texas Supreme Court.

Domestic partner benefits provided by governmental entities

See also: Cities and counties in the United States offering a domestic partnership registry

San Antonio, Austin, Fort Worth, and El Paso provide health insurance to domestic partners of city workers.

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.

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.

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

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

As of April 2013, Houston is the largest city in the U.S. that does not provide domestic partner benefits. 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.

During the legislature's 2013 regular session, Representative Drew Springer authored House Bill 1568 that would have penalized a school district for offering benefits to a person who is neither a district employee nor a dependent of such an employee (introduced version) or for knowingly violating the Texas Constitution (committee substitute version). The bill, however, was never voted upon by the house of representatives. House Bill 1140 by Representative Elliott Naishtat and Senate Bill 1486 by Senator Kirk Watson would have authorized the University of Texas System and the Texas A&M University System to extend employee benefits to any "qualified individual" as defined by the respective systems; however, both bills died in committee.

2013 Texas attorney general opinion

In April 2013, Texas Attorney General Greg Abbott opined that Article I, Section 32 of the Texas Constitution prohibits a political subdivision of the state from "creating a legal status of domestic partnership and recognizing that status by offering public benefits based upon it." The opinion request from state Senator Dan Patrick inquired about political subdivisions that "offer some form of insurance benefits to domestic partnerships" as part of their employee benefit programs. Article I, Section 32 says that "[t]his state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage." The attorney general said that a city, county, or independent school district is a "political subdivision" for this purpose. He also said, "By establishing eligibility criteria and requiring affidavits and other legal documentation to demonstrate applicants' eligibility to be considered domestic partners, ... political subdivisions have purported to create a legal status of domestic partnership that is not otherwise recognized under Texas law. Furthermore, the political subdivisions 'recognize' that legal status by providing benefits to individuals who attain that status." As for whether the domestic partnerships are "similar" to marriage, the attorney general said "a court is likely to conclude that the domestic partnership legal status ... is 'similar to marriage' and therefore barred" by the constitution.

In response, the Austin Independent School District decided not to offer health benefits to the domestic partners of its employees. City Manager Marc Ott and Mayor Lee Leffingwell of the City of Austin said that the city would not change its domestic partners benefits policy. Sam Biscoe, the county judge of Travis County, said that the county would not change its policy because, "Legally, we are in good shape." A spokesperson for Fort Worth said the city did not expect any problems from the opinion because "Our domestic partner policy does not say anything about marriage or gender." El Paso mayor John Cook said, "The attorney general's opinion is nothing but that - it's an opinion that doesn't have the enforcement of a court case." Veronica Escobar, the county judge of El Paso County, said that the opinion was not binding and that the county would continue to provide benefits to the unmarried partners of its employees.

Adoption of children

In Texas, any adult may adopt a child without regard to the adult's sexual orientation or gender identity.

Although same-sex second-parent adoption is legal in Texas, a court may not issue a supplemental birth certificate for a child adopted by two men or two women. The primary purpose of the certificate is to prove the parent / child relationship with outside entities, such as schools, insurance companies, and passport offices. On November 15, 2012, Representative Rafael Anchia introduced House Bill 201 for the legislature's 2013 regular session. The bill would have deleted the prohibition against issuing a supplemental birth certificate for a child adopted by two men or two women; however, the bill died in the Judiciary and Civil Jurisprudence committee of the house of representatives.

Discrimination protection

State law

Texas state law does not protect employees from discrimination based on their sexual orientation or gender identity. 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. During the legislature's 2013 regular session, House Bill 238 by Representative Mike Villarreal, House Bill 1146 by Representative Eric Johnson, and Senate Bill 237 by Senator Leticia Van de Putte would have prohibited this discrimination; however, all these bills died in their respective committees.

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

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 by Representative Senfronia Thompson, House Bill 541 by Representative Robert Alonzo, and Senate Bill 73 by Senator Rodney Ellis would have prohibited this discrimination; however, all these bills died in their respective committees.

Municipal laws

Five of the six most populous Texas municipalities have ordinances prohibiting discrimination on the basis of sexual orientation or gender identity: Houston, Dallas, Austin, Fort Worth, and El Paso. The website of the state's second largest city, San Antonio, claims that discrimination against city employees or applicants for city employment based on their sexual orientation is prohibited. However, the San Antonio code of ordinances does not specifically cover this type of discrimination. In a 2010 document related to its receipt of a grant from the United States Department of Justice, Walker County expressed its commitment to prohibiting discrimination on the basis of sexual orientation or gender identity concerning its employees and applicants for employment.

Hate crimes law

On May 11, 2001, Governor Rick Perry signed House Bill 587, popularly but unofficially known as the James Byrd, Jr. Hate Crimes Act, 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. 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; however, the bill died in the Criminal Jurisprudence committee of the house of representatives.

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.

Sex reassignment

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.

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. This ruling allowed a person born male who transitioned to female to marry a woman in that court's jurisdiction.

Politics

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

Governor Rick Perry, a Republican, is known for his socially conservative views on homosexuality, opposes same-sex marriage, and dismissed the Lawrence v. Texas U. S. Supreme Court decision as the product of "nine oligarchs in robes".

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

Opinion polls

Support for same-sex marriage
When	Organizer	Support	Oppose	Not sure	Sample size	Margin of error
August / September 2010	Glengariff Group, Inc.	42.7%	52.7%		1,000 registered voters	±3.1%
September 2011	Public Policy Polling	29%	61%	10%	569 residents	±4.10%
January 2013	Public Policy Polling	35%	55%	10%	500 voters	±4.4%
January 2013	Glengariff Group, Inc.	47.9%	47.5%		1,000 registered voters	±3.1%
June/July 2013	Public Policy Polling	34%	57%	9%	500 registered voters	±4.4%

Support for legal recognition of same-sex relationships
When	Organizer	Same-sex marriage	Civil union	No legal recognition	Unsure	Sample size	Margin of error
June 2009	University of Texas	29%	32%	32%	8%	924 residents	±3.22%
June 2009	Texas Lyceum	32%	25%	36%	7%	860 residents	Unknown
February 2010	University of Texas	28%	35%	30%	7%	800 registered voters	±3.46%
September 2010	Texas Lyceum	28%	24%	40%	9%	725 residents	Unknown
May 2011	University of Texas	30%	31%	33%	6%	800 registered voters	±3.46%
September 2011	Public Policy Polling	24%	35%	40%	1%	569 residents	±4.10%
February 2012	University of Texas	31%	29%	33%	7%	800 registered voters	±3.46%
October 2012	University of Texas	36%	33%	25%	7%	800 registered voters	±3.46%
January 2013	Public Policy Polling	33%	28%	36%	3%	500 voters	±4.4%
February 2013	University of Texas	37%	28%	28%	7%	800 registered voters	±3.46%
June 2013	University of Texas	39%	30%	26%	5%	1,200 registered voters	±2.83%
June/July 2013	Public Policy Polling	31%	32%	31%	6%	500 voters	±4.4%

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. 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.

Summary table

Same-sex sexual activity legal	(since 2003)
Equal age of consent
Anti-discrimination state laws for sexual orientation
Anti-discrimination state laws for gender identity or expression
Hate crime laws include sexual preference	(since 2001)
Hate crime laws include gender identity or expression
Recognition in state law of same-sex couples as domestic partners
Step adoption by same-sex couples
Joint adoption by same-sex couples
Access to IVF for lesbians
Same-sex marriages

See also

• LGBT rights in the United States
• LGBT rights by country or territory
• List of U.S. state constitutional amendments banning same-sex unions by type
• Politics of Texas

External links

• Equality Texas
• Stonewall Democrats - Texas
• "Understanding Transgender Marriage in Texas Law", ONTD Political, August 19, 2010
• "Does Texas Allow Transgender Marriages?", The Houston Family Law Blog, authored by Laura Fishman, May 7, 2010
• "Texas and the Hate Crimes Act", Daily Kos, October 28, 2009
• The Sensibilities of Our Forefathers: The History of Sodomy Laws in the United States - Texas, by George Painter