LGBT rights in Texas
Encyclopedia
Few rights for lesbian
, gay
, bisexual and transgender
residents exist in Texas
at the state level. LGBT
persons in Texas face legal challenges and discrimination not experienced by non-LGBT residents.
(which applied specifically to homosexual conduct only, listing it as a Class C misdemeanor
, punishable by a fine not to exceed $500) was declared unconstitutional in 2003 by the U. S. Supreme Court in the landmark case, Lawrence vs. Texas. However, the statute itself (Texas Penal Code § 21.06) has never been removed from the books.
The Texas Health and Safety Code mandates that, "The materials in the education programs intended for persons younger than 18 years of age must ... state that homosexual conduct is not an acceptable lifestyle and is a criminal offense under §21.06 of the Penal Code." (Texas Health and Safety Code § 85.007(b)). This language also has not been modified since Lawrence vs. Texas.
Texas' Romeo and Juliet law applies only to heterosexual couples (Texas Penal Code § 21.11(b)).
outlawing both same-sex marriage
and civil unions:
In 1997, marriage license
s were denied to same-sex couples (Texas Family Code § 2.001(b)). In 2003, Same-sex marriage and civil unions were prohibited by statute (Texas Family Code § 6.204).
Texas does not recognize same-sex marriages performed in other jurisdictions (Texas Family Code § 6.204(c)). 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 would prohibit a State from doing this, but some discretion has also been given to States in certain matters. The Constitutional provision does give Congress the power to, "prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." (Article IV, Section 1 of the United States Constitution).
On October 2, 2009, A Texas judge ruled the state's same-sex marriage ban unconstitutional while presiding over the divorce
proceedings for two gay Texans married in Massachusetts, clearing the way for both Texas' first same-sex divorce and a legal challenge to the same-sex marriage ban. The state Attorney General intervened in the case. On August 31, 2010, the Fifth Court of Appeals
in Dallas
, reversed the lower court's ruling, finding that the Texas constitutional ban on same-sex marriage does not violate the Equal Protection Clause
of the Fourteenth Amendment
. The court further ruled that district courts in Texas do not have subject-matter jurisdiction
to hear a same-sex divorce case. The case is cited as In Re: Marriage of J.B. and H.B. In Re State of Texas (No. 05-09-01170-CV). However, on January 7, 2011, the Third Court of Appeals in Austin
issued a conflicting ruling, finding that the Attorney General does not have standing
to intervene in a same-sex divorce case and allowing a divorce issued to a lesbian couple married in Massachusetts to stand.
According to a May 2011 University of Texas/Texas Tribune poll, 61% of Texans supported legal recognition of gay and lesbian relationships, with 30% supporting same-sex marriage and 31% supporting civil unions, while 33% opposed any legal recognition and 6% said that they didn't know.
or gender identity
(Texas Family Code § 162.001). There are varying levels of tolerance to LGBT parents, but frequent hostility.
Similarly, Texas has no laws protecting LGBT citizens from housing discrimination (Texas Property Code $ 301.021).
Some communities do have local laws prohibiting discrimination on the basis of gender identity or expression, such as Austin
, Dallas
, El Paso
and Houston
, and El Paso provides health insurance to domestic partner
s of city workers.
Several physicians in Texas offer gender reassignment services.
Recently, a Texas Psychiatrist, Theron Bowers, MD, an Assistant Professor of Psychiatry at Baylor College of Medicine, published an essay that questions the wisdom of surgeons doing sexual reassignment surgery.
In the jurisdiction covered by the 4th Texas Court of Appeals, the 1999 case Littleton v. Prange defined that, for the purposes of determining the validity of a marriage, a person's sex is determined by birth. Though in the original case, the decision refused to reccognize the marriage of a male-to-female transgendered woman to a man, it cleared the way for transwomen attracted to women to marry legally in Texas.
In 2011, Texas state Senator Tommy Williams (R - The Woodlands
) introduced S.B.723, an act which would remove the provision for a court order relating to an applicant's sex-change as qualification for a marriage licese from Texas Family Code § 2.005(b). This would effectviely deny marriage rights to transgender persons.
, majorities which were increased in the 2010 election
. The current Republican Governor of Texas
, Rick Perry
, has been re-elected for an unprecedented third term. Perry is known for his socially conservative views on homosexuality. He has expressed opposition to gay marriage and condemned the Lawrence vs. Texas decision, calling Texas' sodomy law "appropriate."
The 2010 party platform
of the Republican Party of Texas contained numerous statements dismissive of LGBT rights:
survey found that 29% of Texas voters supported the legalization of same-sex marriage, while 61% were opposed and 10% were not sure. A separate question on the same survey found that 59% of respondents supported legal recognition of same-sex couples, with 24% supporting same-sex marriage, 35% supporting civil unions, 40% opposing all legal recognition, and 1% not sure.
Lesbian
Lesbian is a term most widely used in the English language to describe sexual and romantic desire between females. The word may be used as a noun, to refer to women who identify themselves or who are characterized by others as having the primary attribute of female homosexuality, or as an...
, gay
Gay
Gay is a word that refers to a homosexual person, especially a homosexual male. For homosexual women the specific term is "lesbian"....
, bisexual and transgender
Transgender
Transgender is a general term applied to a variety of individuals, behaviors, and groups involving tendencies to vary from culturally conventional gender roles....
residents exist in Texas
Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
at the state level. LGBT
LGBT
LGBT is an initialism that collectively refers to "lesbian, gay, bisexual, and transgender" people. In use since the 1990s, the term "LGBT" is an adaptation of the initialism "LGB", which itself started replacing the phrase "gay community" beginning in the mid-to-late 1980s, which many within the...
persons in Texas face legal challenges and discrimination not experienced by non-LGBT residents.
Laws regarding same-sex sexual activity
Same-sex sexual activity was criminalized until the state's sodomy lawSodomy law
A sodomy law is a law that defines certain sexual acts as crimes. The precise sexual acts meant by the term sodomy are rarely spelled out in the law, but are typically understood by courts to include any sexual act deemed unnatural. It also has a range of similar euphemisms...
(which applied specifically to homosexual conduct only, listing it as a Class C misdemeanor
Misdemeanor
A misdemeanor is a "lesser" criminal act in many common law legal systems. Misdemeanors are generally punished much less severely than felonies, but theoretically more so than administrative infractions and regulatory offences...
, punishable by a fine not to exceed $500) was declared unconstitutional in 2003 by the U. S. Supreme Court in the landmark case, Lawrence vs. Texas. However, the statute itself (Texas Penal Code § 21.06) has never been removed from the books.
The Texas Health and Safety Code mandates that, "The materials in the education programs intended for persons younger than 18 years of age must ... state that homosexual conduct is not an acceptable lifestyle and is a criminal offense under §21.06 of the Penal Code." (Texas Health and Safety Code § 85.007(b)). This language also has not been modified since Lawrence vs. Texas.
Texas' Romeo and Juliet law applies only to heterosexual couples (Texas Penal Code § 21.11(b)).
Recognition of same-sex relationships
In November, 2005, Texas voters passed an amendment to the state constitutionTexas Constitution
The Constitution of the State of Texas is the document that describes the structure and function of the government of the U.S. State of Texas.Texas has had seven constitutions: the constitution of Coahuila y Tejas, the 1836 Constitution of the Republic of Texas, the state constitutions of 1845,...
outlawing both same-sex marriage
Same-sex marriage
Same-sex marriage is marriage between two persons of the same biological sex or social gender. Supporters of legal recognition for same-sex marriage typically refer to such recognition as marriage equality....
and civil unions:
- Article I, Sec. 32. "MARRIAGE.
- (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." (Added Nov. 8, 2005.)
In 1997, marriage license
Marriage license
A marriage license is a document issued, either by a church or state authority, authorizing a couple to marry. The procedure for obtaining a license varies between countries and has changed over time...
s were denied to same-sex couples (Texas Family Code § 2.001(b)). In 2003, Same-sex marriage and civil unions were prohibited by statute (Texas Family Code § 6.204).
Texas does not recognize same-sex marriages performed in other jurisdictions (Texas Family Code § 6.204(c)). 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 would prohibit a State from doing this, but some discretion has also been given to States in certain matters. The Constitutional provision does give Congress the power to, "prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." (Article IV, Section 1 of the United States Constitution).
On October 2, 2009, A Texas judge ruled the state's same-sex marriage ban unconstitutional while presiding over the divorce
Divorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
proceedings for two gay Texans married in Massachusetts, clearing the way for both Texas' first same-sex divorce and a legal challenge to the same-sex marriage ban. The state Attorney General intervened in the case. On August 31, 2010, the Fifth Court of Appeals
Texas Courts of Appeals
The Texas Courts of Appeals are part of the Texas judicial system. In Texas, all cases appealed from the district level, both criminal and civil, may be heard by one of the fourteen Texas Courts of Appeals. The exception is for cases where the death penalty is a factor; these cases go directly to...
in Dallas
Dallas, Texas
Dallas is the third-largest city in Texas and the ninth-largest in the United States. The Dallas-Fort Worth Metroplex is the largest metropolitan area in the South and fourth-largest metropolitan area in the United States...
, reversed the lower court's ruling, finding that the Texas constitutional ban on same-sex marriage does not violate the Equal Protection Clause
Equal Protection Clause
The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"...
of the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
. The court further ruled that district courts in Texas do not have subject-matter jurisdiction
Subject-matter jurisdiction
Subject-matter jurisdiction is the authority of a court to hear cases of a particular type or cases relating to a specific subject matter. For instance, bankruptcy court only has the authority to hear bankruptcy cases....
to hear a same-sex divorce case. The case is cited as In Re: Marriage of J.B. and H.B. In Re State of Texas (No. 05-09-01170-CV). However, on January 7, 2011, the Third Court of Appeals in Austin
Austin, Texas
Austin is the capital city of the U.S. state of :Texas and the seat of Travis County. Located in Central Texas on the eastern edge of the American Southwest, it is the fourth-largest city in Texas and the 14th most populous city in the United States. It was the third-fastest-growing large city in...
issued a conflicting ruling, finding that the Attorney General does not have standing
Standing (law)
In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...
to intervene in a same-sex divorce case and allowing a divorce issued to a lesbian couple married in Massachusetts to stand.
According to a May 2011 University of Texas/Texas Tribune poll, 61% of Texans supported legal recognition of gay and lesbian relationships, with 30% supporting same-sex marriage and 31% supporting civil unions, while 33% opposed any legal recognition and 6% said that they didn't know.
Parenting
In Texas, any adult may adopt a child, with no barrier based on sexual orientationSexual orientation
Sexual orientation describes a pattern of emotional, romantic, or sexual attractions to the opposite sex, the same sex, both, or neither, and the genders that accompany them. By the convention of organized researchers, these attractions are subsumed under heterosexuality, homosexuality,...
or gender identity
Gender identity
A gender identity is the way in which an individual self-identifies with a gender category, for example, as being either a man or a woman, or in some cases being neither, which can be distinct from biological sex. Basic gender identity is usually formed by age three and is extremely difficult to...
(Texas Family Code § 162.001). There are varying levels of tolerance to LGBT parents, but frequent hostility.
Discrimination protection
Texas state law does not protect against employee discrimination based on sexual orientation or gender identity (Texas Labor Code § 21.051). 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. In January, 2011, Rep. Mike Villareal (D - Dist. 123, San Antonio) introduced H.B. 665 prohibiting employment discrimination on the basis of sexual orientation or gender identity or expression.Similarly, Texas has no laws protecting LGBT citizens from housing discrimination (Texas Property Code $ 301.021).
Some communities do have local laws prohibiting discrimination on the basis of gender identity or expression, such as Austin
Austin, Texas
Austin is the capital city of the U.S. state of :Texas and the seat of Travis County. Located in Central Texas on the eastern edge of the American Southwest, it is the fourth-largest city in Texas and the 14th most populous city in the United States. It was the third-fastest-growing large city in...
, Dallas
Dallas, Texas
Dallas is the third-largest city in Texas and the ninth-largest in the United States. The Dallas-Fort Worth Metroplex is the largest metropolitan area in the South and fourth-largest metropolitan area in the United States...
, El Paso
El Paso, Texas
El Paso, is a city in and the county seat of El Paso County, Texas, United States, and lies in far West Texas. In the 2010 census, the city had a population of 649,121. It is the sixth largest city in Texas and the 19th largest city in the United States...
and Houston
Houston, Texas
Houston is the fourth-largest city in the United States, and the largest city in the state of Texas. According to the 2010 U.S. Census, the city had a population of 2.1 million people within an area of . Houston is the seat of Harris County and the economic center of , which is the ...
, and El Paso provides health insurance to domestic partner
Domestic partnership
A domestic partnership is a legal or personal relationship between two individuals who live together and share a common domestic life but are neither joined by marriage nor a civil union...
s of city workers.
Hate crimes law
On May 12, 2001, Governor Rick Perry signed the James Byrd Jr. Hate Crimes Act, strengthening penalties for crimes motivated by a victim's race, religion, color, sex, disability, sexual preference, age or national origin. Gender identity is not included in the legislation.Gender reassignment
In 2009, the Texas Family Code was amended to allow a record of sex change to be acceptable for a marriage license (Texas Family Code § 2.005(b)(8))Several physicians in Texas offer gender reassignment services.
Recently, a Texas Psychiatrist, Theron Bowers, MD, an Assistant Professor of Psychiatry at Baylor College of Medicine, published an essay that questions the wisdom of surgeons doing sexual reassignment surgery.
In the jurisdiction covered by the 4th Texas Court of Appeals, the 1999 case Littleton v. Prange defined that, for the purposes of determining the validity of a marriage, a person's sex is determined by birth. Though in the original case, the decision refused to reccognize the marriage of a male-to-female transgendered woman to a man, it cleared the way for transwomen attracted to women to marry legally in Texas.
In 2011, Texas state Senator Tommy Williams (R - The Woodlands
The Woodlands, Texas
The Woodlands is a master-planned community and a Census-designated place in the U.S. state of Texas within the metropolitan area. The population of the CDP was 55,649 at the 2000 census—a 90 percent increase over its 1990 population. According to the 2010 census, The Woodlands' population rose...
) introduced S.B.723, an act which would remove the provision for a court order relating to an applicant's sex-change as qualification for a marriage licese from Texas Family Code § 2.005(b). This would effectviely deny marriage rights to transgender persons.
Texas Republican Party
The Texas Republican Party holds all statewide offices in Texas and controls both houses of the Texas LegislatureTexas Legislature
The Legislature of the state of Texas is the state legislature of the U.S. state of Texas. The legislature is a bicameral body composed of a 31-member Senate and a 150-member House of Representatives. The Legislature meets at the Capitol in Austin...
, majorities which were increased in the 2010 election
United States elections, 2010
The 2010 United States elections were held on Tuesday, November 2, 2010. During this midterm election year, all 435 seats in the United States House of Representatives and 37 of the 100 seats in the United States Senate were contested in this election along with 38 state and territorial...
. The current Republican Governor of Texas
Governor of Texas
The governor of Texas is the head of the executive branch of Texas's government and the commander-in-chief of the state's military forces. The governor has the power to either approve or veto bills passed by the Texas Legislature, and to convene the legislature...
, Rick Perry
Rick Perry
James Richard "Rick" Perry is the 47th and current Governor of Texas. A Republican, Perry was elected Lieutenant Governor of Texas in 1998 and assumed the governorship in December 2000 when then-governor George W. Bush resigned to become President of the United States. Perry was elected to full...
, has been re-elected for an unprecedented third term. Perry is known for his socially conservative views on homosexuality. He has expressed opposition to gay marriage and condemned the Lawrence vs. Texas decision, calling Texas' sodomy law "appropriate."
The 2010 party platform
Party platform
A party platform, or platform sometimes also referred to as a manifesto, is a list of the actions which a political party, individual candidate, or other organization supports in order to appeal to the general public for the purpose of having said peoples' candidates voted into political office or...
of the Republican Party of Texas contained numerous statements dismissive of LGBT rights:
- Under the heading of "Principles", the platform says, "We believe in: ... Self-sufficient families, founded on the traditional marriage of a natural man and a natural woman." The addition of the word, "natural", is an apparent attempt to exclude transgenderTransgenderTransgender is a general term applied to a variety of individuals, behaviors, and groups involving tendencies to vary from culturally conventional gender roles....
people. This addition occurs throughout the document, including the section calling for a Federal Marriage AmendmentFederal Marriage AmendmentThe Federal Marriage Amendment H.J. Res. 56 was a proposed amendment to the United States Constitution which would have limited marriage in the United States to unions of one man and one woman...
.
- Under the section titled, "Celebrating Traditional Marriage", the platform calls on Congress to "pass legislation withholding jurisdiction from the Federal Courts in cases involving family law, especially any changes in the definition of marriage."
- It opposes "well-funded, vigorous political and judicial attempts by powerful organizations and branches of the government to force acceptance, affirmation and normalization of homosexual behavior upon school children, parents, educational institutions, businesses, employees, government bodies and religious institutions and charities. These aggressive, intolerant efforts marginalize as bigots anyone who dissents."
- "Marriage Licenses – We support legislation that would make it a felony to issue a marriage license to a same-sex couple and for any civil official to perform a marriage ceremony for such."
- "Homosexuality – We believe that the practice of homosexuality tears at the fabric of society, contributes to the breakdown of the family unit, and leads to the spread of dangerous, communicable diseases. Homosexual behavior is contrary to the fundamental, unchanging truths that have been ordained by God, recognized by our country's founders, and shared by the majority of Texas. Homosexuality must not be presented as an acceptable 'alternative' lifestyle in our public education and policy, or should 'family' be redefined to include homosexual 'couples.' We are opposed to any granting of special legal entitlements, refuse to recognize, or grant special privileges including, but not limited to: marriage between persons of the same sex (regardless of state of origin), custody of children by homosexuals, homosexual partner insurance or retirement benefits. We oppose any criminal or civil penalties against those who oppose homosexuality out of faith, conviction or belief in traditional values."
- "Texas Sodomy Statutes – We oppose the legalization of sodomy. We demand that Congress exercise its authority granted by the U.S. Constitution to withhold jurisdiction from the federal courts from cases involving sodomy."
- Under the heading "Protecting our Children", the platform says, "We also believe that no homosexual or any individual convicted of child abuse or molestation should have the right to custody or adoption of a minor child, and that visitation with minor children by such persons should be prohibited but if ordered by the court limited to supervised periods."." This statement also subtly makes the scientifically-unsubstantiated link between homosexuality and pedophelia, and would prevent any homosexual who had never been convicted of any crime not only from adopting but from even visiting a minor child.
Public opinion
A September 2011 Public Policy PollingPublic Policy Polling
Public Policy Polling is an American Democratic Party-affiliated polling firm based in Raleigh, North Carolina. PPP was founded in 2001 by businessman and Democratic pollster Dean Debnam, the firm's current president and chief executive officer...
survey found that 29% of Texas voters supported the legalization of same-sex marriage, while 61% were opposed and 10% were not sure. A separate question on the same survey found that 59% of respondents supported legal recognition of same-sex couples, with 24% supporting same-sex marriage, 35% supporting civil unions, 40% opposing all legal recognition, and 1% not sure.
See also
- LGBT rights in the United States
- List of U.S. state constitutional amendments banning same-sex unions by type
- Politics of TexasPolitics of TexasFor approximately 100 years, from the end of Reconstruction until the 1970s, the Democratic Party was dominant in Texas politics. However, since the 1950s the Republican Party has grown more prominent within the state, and became the state's dominant political party in the mid-1990s...
External links
- Equality Texas
- Texas Gay Straight Alliance Network
- Stonewall Democrats - Texas
- Understanding Transgender Marriage in Texas Law
- Does Texas Allow Transgender Marriages?
- Texas and the Hate Crimes Act (Daily KosDaily KosDaily Kos is an American political blog that publishes news and opinions from a progressive point of view. It functions as a discussion forum and group blog for a variety of netroots activists, whose efforts are primarily directed toward influencing and strengthening the Democratic Party...
) - The Sensibilities of Our Forefathers: The History of Sodomy Laws in the United States - Texas, by George Painter