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LGBT rights in Texas
Texas (US)
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
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.

Contents

Laws regarding same-sex sexual activity [edit]

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",[n 1] the offense was a Class C misdemeanor, punishable by a fine not to exceed $500.[n 2] Despite the U. S. Supreme Court ruling, the statute[n 3] has not been removed from the Texas Penal Code. Texas is one of four states[1] where unenforceable laws applying only to same-sex sexual acts have not yet been repealed by legislative action. (The others are Oklahoma,[n 4] Kansas,[n 5] and Montana.[n 6][n 7])

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...."[2] In practice, few school districts include that language about homosexual conduct in their sex education materials.[3] This law also has not been modified since Lawrence v. Texas.

Legislation in 2011 that would have repealed both of these statutes died in the House Committee on Criminal Jurisprudence on April 5, 2011.[4]

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.[5] 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.[6]

Recognition of same-sex relationships [edit]

See also: Same-sex unions in the United States

In 1997, the Texas legislature prohibited the issuance of marriage licenses to same-sex couples.[7] In 2003, the legislature enacted a statute that made void in Texas any same-sex marriage or civil union.[8] 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.[9] 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."[10]

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."[n 8] 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.[11] 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.[11]

Divorce proceedings in Texas courts for marriages performed in other states [edit]

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.[12] 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.[13][14]

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.[15]

Both cases are pending before the Texas Supreme Court.[16][17][18]

Domestic partner benefits provided by governmental entities [edit]

San Antonio,[19] Austin,[20] Fort Worth,[21] and El Paso[22] 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.[23][24]

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.[25][26]

Travis County allows the domestic partners of county employees to participate as dependents in the county's group insurance plan.[27]

El Paso County provides health benefits to unmarried partners of county employees.[28]

In 2001, by 51% of the vote, Houston voters approved Proposition 2, an amendment to the city charter prohibiting the city from providing domestic partner benefits for city employees. As of April 2013, Houston is the largest city in the U.S. that does not provide domestic partner benefits.[29]

Adoption of children [edit]

In Texas, any adult may adopt a child without regard to the adult's sexual orientation or gender identity.[30]

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.[31] The primary purpose of the certificate is to prove the parent / child relationship with outside entities, such as schools, insurance companies, and passport offices.[32] On November 15, 2012, Representative Rafael Anchia introduced House Bill 201 for the legislature's 2013 regular session.[32] If enacted into law, the bill on September 1, 2013, will delete the prohibition against issuing a supplemental birth certificate for a child adopted by two men or two women.[33]

Discrimination protection [edit]

State law [edit]

Texas state law does not protect employees from discrimination based on their sexual orientation or gender identity.[34] 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.[35] On December 3, 2012, Representative Mike Villarreal introduced House Bill 238 for the legislature's 2013 regular session.[36] If enacted into law, the bill effective September 1, 2013, would prohibit employment discrimination on the basis of sexual orientation or gender identity or expression.[37]

Texas state law does not protect persons from housing or public accommodations discrimination based on their sexual orientation or gender identity or expression.[38] House Bill 2215 by Representative Jessica Farrar in the legislature's 2009 regular session would have prohibited this discrimination;[39] however, the bill died in the Judiciary and Civil Jurisprudence committee of the house of representatives.[40]

Texas state law does not protect persons from insurance discrimination based on their sexual orientation or gender identity or expression. House Bill 208[41] by Representative Roberto R. Alonzo and Senate Bill 741[42] by Sen. Rodney Ellis in the legislature's 2011 regular session would have prohibited this discrimination; however, both bills died in their respective committees.[43][44]

Municipal laws [edit]

Five of the six most populous Texas municipalities have ordinances prohibiting discrimination on the basis of sexual orientation or gender identity: Houston,[45] Dallas,[46] Austin,[47] Fort Worth,[48][49] and El Paso.[50] 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.[51] However, the San Antonio code of ordinances does not specifically cover this type of discrimination.[52] 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.[53]

Hate crimes law [edit]

On May 11, 2001, Governor Rick Perry signed House Bill 587,[54] popularly but unofficially known as the James Byrd, Jr. Hate Crimes Act,[55] 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 9] House Bill 2227 by Representative Garnet Coleman in the legislature's 2011 regular session would have added gender identity or expression to the hate crimes law;[56] however, the bill died in the Criminal Jurisprudence committee of the house of representatives.[57]

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.[58]

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.[59]

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.[60] This ruling allowed a person born male who transitioned to female to marry a woman in that court's jurisdiction.[61][62]

Politics [edit]

The Texas Republican Party holds all statewide offices in Texas and controls both houses of the Texas legislature.[63] Its 2012 party platform contained numerous statements against LGBT rights.[64]

Governor Rick Perry, a Republican, is known for his socially conservative views on homosexuality, opposes same-sex marriage,[65] and dismissed the Lawrence v. Texas U. S. Supreme Court decision as the product of "nine oligarchs in robes".[1]

The Texas Democratic Party added certain LGBT rights to the party's platform in 1980,[66] and included same-sex marriage rights in its 2012 platform,[67] becoming the first Democratic state party in the southern United States to do so.[68]

Opinion polls [edit]

Since 2009, Texans between the ages of 18 and 29 have increasingly supported same-sex marriage. In June 2009, the University of Texas found that 49 percent of that age group supported same-sex marriage. In February 2013, it found that 59 percent of them did so. Opposition dropped 12 points in the same period, from 28 to 16 percent.[81] Glengariff Group, Inc. found that support in that age group rose from 53.6 percent in 2010 to 67.9 percent in 2013.[citation needed]

Summary table [edit]

Same-sex sexual activity legal Yes (since 2003)
Equal age of consent No[5]
Anti-discrimination state laws for sexual orientation No
Anti-discrimination state laws for gender identity or expression No
Hate crime laws include sexual preference Yes (since 2001)
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[30]
Joint adoption by same-sex couples Yes[30]
Access to IVF for lesbians Yes[clarification needed]
Same-sex marriages No[8]

See also [edit]

Portal icon Texas portal
Portal icon LGBT portal
Portal icon Law portal

Notes [edit]

  1. ^ According to Section 21.01(1) of the Texas Penal Code, "Deviate sexual intercourse" means: (A) any contact between any part of the genitals of one person and the mouth or anus of another person; or (B) the penetration of the genitals or the anus of another person with an object.
  2. ^ This punishment was specified in Section 12.23 of the Texas Penal Code.
  3. ^ According to Section 21.06 of the Texas Penal Code, a person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.
  4. ^ 21 Okla. Stat. sec. 21-886
  5. ^ Kan. Stat. Ann. sec. 21-3505
  6. ^ Mont. Code Ann. sec. 45-5-505
  7. ^ Mont. Code Ann. sec. 45-2-101(21) (definining "deviate sexual relations")
  8. ^ Article I, Section 32 of the Texas Constitution states: "(a) Marriage in this state shall consist only of the union of one man and one woman. (b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage."
  9. ^ The text of the relevant statute, Article 42.014 of the Code of Criminal Procedure, provides, "(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."

References [edit]

  1. ^ a b "MAP: Has Your State Banned Sodomy?", Mother Jones, authored by Tim Murphy, April 19, 2011
  2. ^ Texas Health and Safety Code sec. 85.007(b)
  3. ^ "Crime of 'homosexual conduct' still on the books in Texas", The Washington Independent, January 13, 2011
  4. ^ House Bill 604: Relating to the repeal of the offense of homosexual conduct, Texas Legislature Online, accessed October 29, 2012
  5. ^ a b Texas Penal Code sec. 21.11(b)
  6. ^ "Bias Ruled in Law On Same-Sex Rape", The Washington Post, reported by Charles Lane, October 22, 2005
  7. ^ Texas Family Code sec. 2.001(b)
  8. ^ a b Texas Family Code sec. 6.204
  9. ^ Texas Family Code sec. 6.204(c)
  10. ^ "The Battle Over Same-Sex Marriage", OnLine NewsHour, Public Broadcasting System, April 30, 2004
  11. ^ a b "Marriage-Amendment Backers Claim Fraud". World Net Daily. October 26, 2005. Retrieved January 17, 2013. 
  12. ^ "Texas Battle on Gay Marriage Looms", The New York Times, reported by James C. McKinley Jr., October 2, 2009
  13. ^ In re Marriage of J.B. and H.B., 326 S.W.3d 654 (Tex. App. - Dallas (5th Dist.) 2010)
  14. ^ Appleton, Roy (September 1, 2010). "Dallas judge's ruling saying gay couple could divorce in Texas rejected on appeal". The Dallas Morning News. Retrieved January 19, 2013. 
  15. ^ Kreytak, Steven (January 7, 2011). "Same-sex divorce stands under appellate ruling: Attorney general did not have standing to intervene in case, court declares". Austin American-Statesman. Retrieved January 19, 2013. 
  16. ^ No. 11-0024, the Supreme Court of Texas Blog
  17. ^ No. 11-0114the Supreme Court of Texas Blog
  18. ^ Rozen, Miriam (December 17, 2012). "Tex Parte Blog: Lawyer in two same-sex divorce cases awaits Texas Supreme Court decision on petitions for review". Texas Lawyer. Retrieved January 19, 2013. 
  19. ^ "What You Need to Know", Civilian Employees, Human Resources Department, City of San Antonio
  20. ^ "Domestic Partnership Affidavit and Agreement", City of Austin Texas
  21. ^ Employee Benefits, Human Resources, City of Fort Worth
  22. ^ "In El Paso, a Storm Over Benefits for Gay Partners", The New York Times, reported by Brandi Grissom, October 1, 2011
  23. ^ "PISD offers domestic partner benefits", reported by Shannon Wolfson, KXAN.com, October 8, 2012
  24. ^ "Pflugerville ISD Extends Domestic Partner Benefits to Employees", KUT News, reported by Tyler Pratt and Laurie Johnson, December 14, 2012
  25. ^ "Dallas County Approves Domestic Partner Insurance Subsidy That Includes Same-Sex Couples", The Huffington Post, filed by Curtis M. Wong, October 31, 2012
  26. ^ "Dallas County Domestic Partners Program", Dallas County Human Resources
  27. ^ "Travis County Employee Benefits Guide FY 13: October 1, 2012 - September 30, 2013"
  28. ^ "El Paso County Commissioners Court OKs benefits for employees' partners", El Paso Times, reported by Aileen B. Flores, August 14, 2012
  29. ^ Houston Voice. February 16, 2012 http://www.houstonvoice.org/2012/02/16/can-the-fourth-largest-city-in-america-become-free-of-discrimination/ |url= missing title (help). Retrieved April 2, 2013. 
  30. ^ a b c Texas Family Code sec. 162.001
  31. ^ Texas Health and Safety Code sec. 192.008(a) requires that a supplemental birth certificate "be in the names of the adoptive parents, one of whom must be a female, named as the mother, and the other of whom must be a male, named as the father."
  32. ^ a b John Wright (November 15, 2012). "Rep. Anchia files that gay adoption bill that Sen. Carona said he would support". Dallas Voice. Retrieved November 19, 2012. 
  33. ^ House Bill 201 - Introduced Text, 83rd Legislature, Regular Session, 2013
  34. ^ Texas Labor Code sec. 21.051
  35. ^ "Bill would stop Texas employers' discrimination based on sexual orientation, gender identity", The Texas Independent, reported by Patrick Brendel, January 14, 2011
  36. ^ "State Rep. Mike Villareal (sic) files bill that would extend employment protection to LGBT workers", KSAT.com, reported by Jessie Degollado, December 6, 2012
  37. ^ House Bill 238 - Introduced Text, 83rd Legislature, Regular Session, 2013
  38. ^ Texas Property Code sec. 301.021(a)-(b)
  39. ^ House Bill 2215 - Introduced Text, 81st Legislature, Regular Session, 2009
  40. ^ House Bill 2215 History, 81st Legislature, Regular Session, 2009
  41. ^ House Bill 208 - Introduced Text, 82nd Legislature, Regular Session, 2011
  42. ^ Senate Bill 741 - Introduced Text, 82nd Legislature, Regular Session, 2011
  43. ^ House Bill 208 History, 82nd Legislature, Regular Session, 2011
  44. ^ Senate Bill 741 History, 82nd Legislature, Regular Session, 2011
  45. ^ Texas, Lambda Legal, last accessed October 7, 2012
  46. ^ Chapter 46 of the Dallas City Code
  47. ^ Chapters 5.1, 5.2, 5.3, and 5.4 of the Austin City Code
  48. ^ Fort Worth City Council Ordinance 14344, adopted September 26, 2000
  49. ^ Fort Worth City Council Ordinance 18909-11-2009, adopted November 10, 2009
  50. ^ "Resolution upholds city discrimination ban", El Paso Times, reported by David Burge, July 22, 2009
  51. ^ "Equal Employment Opportunity". City of San Antonio. Retrieved January 13, 2013. 
  52. ^ San Antonio, Texas - Code of Ordinances, codified through January 31, 2013
  53. ^ http://www.co.walker.tx.us/egov/docs/1291755563_]88806.pdf
  54. ^ Enrolled version of House Bill 587, 77th Texas Legislature, Regular Session, 2001
  55. ^ "Texas Governor Signs Hate Crimes Bill", reported by the Associated Press, Ross Institute Internet Archives, May 12, 2001
  56. ^ House Bill 2227 - Introduced Text, 82nd Legislature, Regular Session, 2011
  57. ^ House Bill 2227 History, 82nd Legislature, Regular Session, 2011
  58. ^ "Texas hate crime law has little effect", Austin American-Statesman, reported by Eric Dexheimer, January 21, 2012
  59. ^ Texas Family Code sec. 2.005(b)(8)
  60. ^ Littleton v. Prange, 9 S.W.3d 223, 231 (Tex. App. − San Antonio 1999, pet. denied)
  61. ^ "Lesbian Couple Get License to Wed; Transsexual Ruling Clears the Way", Adolfo Pesquera, San Antonio Express-News, September 7, 2000
  62. ^ "Abbott Declines Transgender Marriage Question", reported by Chuck Lindell, Austin American-Statesman, August 10, 2010
  63. ^ "History of the Republican Party of Texas", Republic Party of Texas, 2011, last accessed January 19, 2011
  64. ^ 2012 Texas Republican Party Platform
  65. ^ "Presidential Candidate Rick Perry Signs Pledge Opposing Same-Sex Marriage", Catholic Online, reported by Matt Cover for CNSNews, August 30, 2011
  66. ^ "Texas Democrats OK Gay Rights Plank". EBSCOhost Connection. November 13, 1980. Retrieved January 21, 2013. 
  67. ^ Guo, Angela (June 11, 2012). "Three State Democratic Parties Add Marriage Equality To Their 2012 Platform". Think Progress. Retrieved January 21, 2013. 
  68. ^ Lindell, Chuck (September 3, 2012). "Platform vote on same-sex marriage at Democratic convention called historic". Austin American-Statesman. Retrieved January 22, 2013. 
  69. ^ University of Texas, Government Department, Texas Statewide Survey, Field Dates: June 11-22, 2009, Question 38, page 12
  70. ^ Texas Lyceum Poll, Spring 2009, Texas Statewide Survey, Field Dates: June 5-12, 2009, Question 55, page 11
  71. ^ University of Texas / Texas Tribune, Texas Statewide Survey, Field Dates: February 1-7, 2010, Question 41, page 11
  72. ^ "GLBT TEXAS ISSUES SURVEY". Glengariff Group, Inc. Retrieved March 15, 2013. 
  73. ^ Texas Lyceum Poll, Fall 2010, Texas Statewide Survey, Field Dates: September 22-30, 2010, Question 27, page 11
  74. ^ University of Texas / Texas Tribune, Texas Statewide Survey, Field Dates: May 11-18, 2011, Question 24, page 7
  75. ^ Texas Survey Results, Public Policy Polling, Question 2, September 15-18, 2011
  76. ^ University of Texas / Texas Tribune, Texas Statewide Survey, Field Dates: February 8-15, 2012, Question 43, page 14
  77. ^ University of Texas / Texas Tribune, Texas Statewide Survey
  78. ^ "Clinton could win Texas in 2016". Public Policy Polling. Retrieved 31 January 2013. 
  79. ^ "GLBT TEXAS ISSUES SURVEY". Glengariff Group, Inc. Retrieved March 15, 2013. 
  80. ^ {url=http://www.laits.utexas.edu/txp_media/html/poll/features/201211_gaymarriage/slide1.html University of Texas / Texas Tribune, Texas Statewide Survey]
  81. ^ "The Polling Center: Texans' View of Gay Marriage Shifts". Texas Tribune. March 26, 2013. Retrieved April 6, 2013. 

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