LGBT rights in Texas

Lesbian, gay, bisexual, and transgender (LGBT) people in Texas have some protections in state law but may face legal and social challenges not faced by others. Same-sex sexual activity was decriminalized in the state in 2003 by the ''Lawrence v. Texas'' ruling. On June 26, 2015, the Supreme Court of the United States ruled bans on same-sex marriage to be unconstitutional in ''Obergefell v. Hodges''.

Texas has a hate crime statute that strengthens penalties for certain crimes motivated by a victim's sexual orientation, although crimes are rarely prosecuted under the statute. The law does not cover gender identity. While some localities in Texas have ordinances that provide a variety of legal protections and benefits to LGBT people, Texas has had no statewide law banning anti-LGBT discrimination. The federal protections against employment discrimination based on sexual orientation or gender identity, established in 2020 by several landmark cases, apply in Texas.

A majority of Texans support same-sex marriage and anti-discrimination laws for LGBT people.

Laws regarding same-sex sexual activity

Until the U. S. Supreme Court in June 2003 declared sodomy laws unconstitutional in ''Lawrence v. Texas''. Sodomy was a criminal offense in Texas, termed "deviate sexual intercourse". As of January 2018, Texas was one of the three states to still have statutes criminalizing same-sex sexual acts, alongside both Oklahoma and Kansas. The Legislature has failed to pass several proposed bills that would repeal the Texas statutes.

Recognition of same-sex relationships

Marriage

On June 26, 2015, the United States legalized same-sex marriage nationwide due to the U.S. Supreme Court's decision in ''Obergefell v. Hodges''. In September 2015, it was reported that 2,500 same-sex marriage licenses had been issued in the state since June.

History

The first legal challenge to Texas' ban on marriage between two people of the same sex came in 1972 when Travis Co Attorney Ned Granger requested an opinion from Attorney General Crawford Martin on the legality of issuing such licenses. Martin issued an opinion that, despite the lack of a specific prohibition against same-sex marriage in statute, it was not legally permitted. In 1973, the Texas Family Code was amended by ''House Bill 103'' to explicitly state that a marriage license may only be issued to a man and a woman. ''HB 103'' became effective on January 1, 1974.

In 1997, Texas banned the issuance of marriage licenses to same-sex couples. Additional
legislation in 2003 forbade the recognition of any same-sex marriages or civil unions. In 2005, voters approved a referendum that added those restrictions to the Texas Constitution.

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. 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. Both cases were appealed by Texas Attorney General Greg Abbott.

In February 2015, two state judges in Travis County held the state's ban on same-sex marriage unconstitutional. One ordered the recognition of a common-law marriage between two women and the other order the county clerk to issue a marriage license to two women. They obtained their license and wed before Attorney General Ken Paxton obtained stays from the Texas Supreme Court and asked that court to void the marriage license.

Domestic partner benefits

Same sex-marriages have been recognized throughout the state since 2015. Currently, there is no recognition of domestic partnerships at the statewide level in Texas for either same-sex or opposite-sex couples.

Austin, Dallas, Fort Worth, El Paso, Houston, and San Antonio provide health insurance to domestic partners of city workers. In 2001, 52% of Houston voters approved Proposition 2, an amendment to the city charter prohibiting the city from providing domestic partner benefits for city employees. 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.

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.

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

2013 Texas Attorney General opinion

In April 2013, Texas Attorney General Greg Abbott, 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". In response, officials in Travis County and Fort Worth defended the legality of their domestic partnership benefits, as did those in other jurisdictions who minimized the significance of the opinion. The Austin Independent School District decided in June 2013 not to offer health benefits to the domestic partners of its employees, but changed its position in August 2013.

Family and relationship policy

Adoption and parenting

In Texas, any adult may adopt a child without regard to the adult's sexual orientation or gender identity. According to the advocacy organizations, the Family Equality Council and Equality Texas and the non-profit legal services provider Texas Legal Services Center, same-sex couples are able to adopt as a couple if they are legally married. Supplemental birth certificates are issued or amended with the names of the same-sex couple shown as parents. However, adoption agencies, even those with federal funding, are permitted to discriminate against prospective adoptive parents in accord with the religious beliefs of the agency. Lesbian couples can access in vitro fertilization and assisted insemination treatment. However, the state's requirement for health plans to cover IVF includes severe restrictions, “The fertilization or attempted fertilization of the patient’s oocytes is made only with the sperm of the patient’s spouse,” that reduce their access to assisted reproduction.

History

Texas statutes have never prohibited same-sex second-parent adoptions or adoption by a same-sex couple and state courts occasionly approved such adoptions, pre-''Obergefell v. Hodges''. However, such couples were at that time required to adopt as two single people jointly adopting the same child. The Texas Courts of Appeals concluded in 2009 that a lower court's approval of an adoption by a same-sex couple did not represent a "fundamental error". On November 15, 2012, Representative Rafael Anchia introduced ''House Bill 201'' to 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. The bill died in the Judiciary and Civil Jurisprudence committee of the House of Representatives.

Following the ''Obergefell v. Hodges'' ruling that compels recognition of same-sex marriage in all states, legally married couples, whether of the same- or opposite-sex, are equally eligible to be considered as adoptive parents, and the prohibition on issuance of supplemtary birth certificates listing two men or two women as parents ceased on June 26, 2015.

Discrimination protections

Texas courts

In March 2021, Texas courts have fully recognised that LGBT individuals have employment protections, based on the 2020 ''Bostock v. Clayton County'' Supreme Court of the United States (SCOTUS) legal precedent. More recently, Texas is a plaintiff in a federal lawsuit to overturn some LGBT protections on Constitutional grounds.

State law

, no Texas state law protects 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'' introduced by Representative Mike Villarreal, ''House Bill 1146'' introduced by Representative Eric Johnson, and ''Senate Bill 237'' introduced by Senator Leticia Van de Putte would have prohibited this kind of discrimination; however, all these bills died in their respective committees. Judge Lee Rosenthal of the Southern District Court of Texas has ruled that sexual orientation and gender identity fall under Federal Protections. However, in April 2018, a federal judge of the U.S. District Court for the Southern District of Texas ruled that, although a woman hadn't proven she had been discriminated against for being transgender by the company Phillips 66, if that had been proven, then the woman would have "had a case" under Title VII of the '' Civil Rights Act of 1964''. The judge, who had been appointed by President George H. W. Bush in 1992, cited other recent cases as shaping the final decision.

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'' introduced by Representative Jessica Farrar in the Legislature's 2009 regular session would have prohibited this kind of discrimination; however, the bill died in the Judiciary and Civil Jurisprudence committee of the House of Representatives.

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

Religious freedom bills

In June 2019, a religious freedom bill, ''Prohibited Adverse Actions by Government (Protection of Membership in and Support to Religious Organizations)'', often referred to by media as the "Save Chick-fil-A' bill", was passed by the Texas Legislature. The act, ''SB 1978'', prohibits any government, or government agency, from treating adversely anyone who supports any religious organization, which may include organizations that refuse service to members of the LGBTQ community, or those that campaign against equality measures or policy.

As originally introduced in the senate, the bill had far broader provisions. For example, Section 2400.002 of the unamended version, filed by Bryan Hughes included direct mention of "beliefs regarding marriage" as protected; the bill as passed was amended to exclude that specification. The final bill also dispensed with language that referred to individuals' "sincerely held" beliefs or convictions; instead, the enacted version enumerates ties to or support of religious organizations.

The enacted bill differed substantively from the original, unpassed version of § 2400.002. An example of the difference between versions is shown below (''unenacted version'', in italics; enrolled version, as passed, in roman text):
Emma Platoff, writing in the ''Texas Tribune'', considered that the amended bill only restated existing protections for freedom of religion and association, saying:

The LGBT caucus in the Texas House of Representatives worked to reduce the possible impact of the bill. In addition to removal of any reference to "marriage beliefs", and the substitution of objective associations with religious organizations for less-definable subjective "beliefs" or "convictions", opposing members achieved a further concession: A provision which would have allowed the Attorney General prosecutorial powers over government entities alleged to have contravened the bill was also removed. According to a 2019 report from ''TIME'', the efforts of Democrats and the LGBT caucus rendered the bill much less threatening to LGBT rights than in its original design: "The new version of the bill essentially restates already-existing legal protections for freedom of religion and freedom of association," the ''Time'' reporter writes. ''Time'' also reports Texas House Rep. Jessica González, a Democrat and LGBT caucus member, as saying, "By the time the bill passed on Tuesday, it was mostly stripped of language that could have reduced LGBTQ rights." Nevertheless, González noted that, "Ultimately, the bill was born out of intolerance" and "It gives people the license to discriminate."

Counties with LGBT protections

Cities with LGBT protections

The following Texas cities have ordinances prohibiting discrimination on the basis of sexual orientation and gender identity in housing, public accommodations, city employment, private employment and city contractors.

Austin, Dallas, Fort Worth, Plano and San AntonioArticle X. - Non-Discrimination Policies
It shall be the general policy of the city to prohibit discrimination on the basis of race, color, religion, national origin, sex, sexual orientation, gender identity, veteran status, age or disability prohibit discrimination on the basis of sexual orientation and gender identity in private and public employment, housing and public accommodations.

Denton has protections for sexual orientation and gender identity for city employment and city contractors.

El Paso has protections based on sexual orientation and gender identity for public accommodations and city employment.

Arlington, Brownsville, Corpus Christi, Houston, Irving, Lubbock, Mesquite and Waco have protections based on sexual orientation and gender identity for city employment—including city contractors in some cities—only. Houston previously had wide-ranging antidiscrimination measures that also covered residents and visitors, introduced in 2014, but these were soon repealed by voters in 2015.

Grand Prairie, McAllen, and Round Rock have a city policy prohibiting city employment discrimination on the basis of sexual orientation only.

Status of non-discrimination protections in Texas' top 20 cities

School districts with LGBT inclusive policies

The following school districts have both employee welfare and student welfare policies prohibiting discrimination based on sexual orientation, gender identity, and gender expression: and Houston ISD.Employee Welfare Policy Houston ISD
Student Welfare Policy Houston ISD
/ref>

El Paso ISD has similar protections, worded as "gender stereotyping and perceived sexuality."

Cedar Hill ISD has protections for sexual orientation only.Cedar Hill ISD Employee Welfare Policy

Pflugerville ISD has explicit protections for employees only, but these same explicit protections are missing from the student non-discrimination policy.

University LGBT non-discrimination policies

Sexual orientation, gender identity and gender expression

The following universities have non-discrimination policies for students and employees based on sexual orientation, gender identity and gender expression

Sexual orientation and gender identity

Sexual orientation

The following universities have non-discrimination policies for students and employees based on sexual orientation only:

On-campus housing

The following universities have non-discrimination statements for sexual orientation for on-campus housing:

The following universities have non-discrimination statements for roommate selection and roommate requests based on sexual orientation:

Discrimination in Texas

Gender identity discrimination

In response to a national 2010 survey, 79% of Texans felt that these people were experiencing harassment or mistreatment at work, and 45% reported that they were not hired, 26% reported that they were fired, and 22% reported being denied a promotion because of their gender identity or expression.Employment Discrimination Based on Sexual Orientation and Gender Identity in Texas
/ref>

Public opinion on non-discrimination laws

Aggregated data from two large public opinion polls find that 79% of Texas residents think that LGBT people experience a moderate amount to a lot of discrimination in the state.

In response to a national poll conducted in 2011, 73% of respondents from Texas said that employment discrimination based on sexual orientation and gender identity should be prohibited in the U.S.

Gender identity and expression

Birth certificates

For transgender people to change their legal gender on their birth certificate, Texas requires that the individual has received "appropriate treatment" and a finding that “it is in your best interest.. that your sex and/or gender marker be changed in public records” from a licensed physician.

Gender change records sought by Attorney General

In December 2022, it was reported by the ''Washington Post'' that the Attorney General's office had requested a full list of all gender changes on Texas driver's licenses and other department records. The Texas Department of Public Safety (DPS) were asked to provide the "total number of changes from male to female and female to male for the last 24 months rior to June 2022 broken down by month" according to inter-departmental messages obtained by ''The Post''. The DPS search resulted in more than 16,000 instances, but the department could not accurately determine the reasons for the marker changes without manually searching the records: Results included instances of changes due to error corrections, for example, and no method existed to extract records solely altered due to gender change, except by manual review of all related documentation.

A DPS spokesperson advised ''The Post'' that, therefore, "Ultimately, our team advised the AG's office the data requested neither exists nor could be accurately produced. Thus, no data of any kind was provided." The procedure followed to obtain these data did not conform to normal practise, according to the ''Washington Post''. The newspaper's information is that usual channels for such requests were bypassed by going directly to driver license division staff. According to a state employee who spoke to ''The Post'', DPS staff were told that "Paxton's office wanted 'numbers' and later would want 'a list' of names, as well as 'the number of people who had had a legal sex change.'"

Gender-affirming healthcare for minors

In May 2021, although an effort to ban gender-affirming healthcare for minors (House Bill 1399) missed its legislative deadline in the House, a similar bill (Senate Bill 1311) was passed by the Senate in an 18–13 vote. If it becomes law, it would revoke the medical license of any doctor who provides gender-affirming healthcare, including puberty blockers, to minors. The bill could still be passed through a "special legislative session" but would require two-thirds of the vote to pass.

In February 2022, Texas Attorney General Ken Paxton issued a legal opinion that gender affirming care for transgender youth was child abuse under state law. After this, Texas Governor Greg Abbott told medical professionals and members of the public to report any transgender youth who received such care and called on the Texas Department of Family and Protective Services to investigate parents for child abuse if they helped their kids receive gender affirming care, with "criminal penalties" for those who knowingly fail to report. After this, five District Attorneys said they would not be following the order. The ACLU and Lambda Legal sued over the order and many medical groups have condemned it. In March 2022, the Texas Third Court of Appeals reinstated a temporary injunction barring enforcement of Abbott's directive.
The ACLU has sued over this action on behalf of a family being investigated.

Randy Mulanax, investigative supervisor with the Texas DFPS, testified in court that cases regarding trans children were being subject to different rules than other cases, with investigation of any child reported, regardless of evidence, being mandatory, and investigators being prohibited from discussing the case over email or text.

In July 2022, the state of Texas hired Dr. James Cantor

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