LGBT rights in Texas | |
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Texas (US) |
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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 |
Family rights | |
Recognition of relationships |
None |
Restrictions:
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Texas Constitutional Amendment (2005) limits marriage to man/woman, forbids non-marriage types of same-sex unions |
Adoption | No restrictions |
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.
Contents |
Laws regarding same-sex sexual activity
Same-sex sexual activity was criminalized until the state's sodomy law (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. Texas is one of three states (along with Oklahoma[1] and Kansas[2]) where unenforceable sodomy laws remain technically law.
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 constitution outlawing both same-sex marriage 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 licenses 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).[3]
Texas does not recognize same-sex marriages performed in other jurisdictions (Texas Family Code § 6.204(c)).[4] 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.[5] 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.[6] 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.[7]
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.[8]
Parenting
In Texas, any adult may adopt a child, with no barrier based on sexual orientation or gender identity (Texas Family Code § 162.001). There are varying levels of tolerance to LGBT parents, but frequent hostility.[3]
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.[9] 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, Dallas, El Paso and Houston,[3][4] and El Paso provides health insurance to domestic partners of city workers.[10]
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.[11] 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.[12][13]
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.[14]
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.[15][16][17] 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.[16][17]
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).[18] This would effectviely deny marriage rights to transgender persons.[19]
Texas Republican Party
The Texas Republican Party holds all statewide offices in Texas and controls both houses of the Texas Legislature,[20] majorities which were increased in the 2010 election.[21] 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."[22]
The 2010 party platform 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."[23] The addition of the word, "natural", is an apparent attempt to exclude transgender people. This addition occurs throughout the document, including the section calling for a Federal Marriage Amendment.
- 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."[23]
- 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."[23]
- "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."[23]
- "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."[23]
- "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."[23]
- 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."."[23] 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 Polling 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.[24]
See also
- LGBT rights in the United States
- List of U.S. state constitutional amendments banning same-sex unions by type
- Politics of Texas
References
- ^ 21 Oklahoma Stat. § 34-886
- ^ Kan. Stat. Ann. § 21-3505 (2010).
- ^ a b c Lambda Legal (2003-2011), Texas, http://www.lambdalegal.org/states-regions/texas.html, retrieved 18 January 2011
- ^ a b Transgender Law and Policy Institute (2003 (Last edited: 02/17/2010)), Non-Discrimination Laws that include gender identity and expression, http://www.transgenderlaw.org/ndlaws/index.htm#public, retrieved 18 January 2011
- ^ Dallas Morning News, October 2, 2009.
- ^ Appleton, Roy (2010-08-31). "Dallas judge's ruling saying gay couple could divorce in Texas rejected on appeal". The Dallas Morning News. http://www.dallasnews.com/sharedcontent/dws/news/localnews/stories/090110dnmetgaydivorce.aa8079fa.html. Retrieved 2010-08-31.
- ^ Kreytak, Steven (Jan. 7), "Same-sex divorce stands under appellate ruling: Attorney general did not have standing to intervene in case, court declares", Austin American-Statesman, http://www.statesman.com/news/local/same-sex-divorce-stands-under-appellate-ruling-1170825.html, retrieved March 13, 2011
- ^ http://www.texastribune.org/immigration-in-texas/immigration/immigration-economy-top-concerns-uttt-poll/
- ^ Brendel, Patrick (January 14, 2011), Bill would stop Texas employers’ discrimination based on sexual orientation, gender identity, The Texas Independent, http://www.americanindependent.com/165605/bill-would-stop-texas-employers-discrimination-based-on-sexual-orientation-gender-identity, retrieved 18 January 2011
- ^ Grissom, Brandi (October 1, 2011). "In El Paso, a Storm Over Benefits for Gay Partners". The New York Times. http://www.nytimes.com/2011/10/02/us/in-el-paso-a-storm-over-benefits-for-gay-partners.html?pagewanted=all.
- ^ Associated Press (May 12, 2001). "Texas Governor Signs Hate Crimes Bill". Ross Institute Internet Archives. http://www.rickross.com/reference/hate_groups/hategroups307.html. Retrieved 19 January 2011.
- ^ "Gender Reassignment Surgery (GRS) Texas (TX)". LocateADoc.com. http://www.locateadoc.com/doctors/gender-reassignment-surgery-grs/texas.html. Retrieved 19 January 2011.
- ^ "FTM SRS Surgeons". The Transitional Male. http://www.thetransitionalmale.com/Surgeons.html#mid. Retrieved 19 January 2011.
- ^ Hatfield, Mike. "Texas Psychiatrist Questions Sex Reassignment Surgery". NARTH. http://www.narth.com/docs/texaspsych.html. Retrieved 19 January 2011.
- ^ Littleton v. Prange 4th Texas Court of Appeals ruling
- ^ a b Pesquera, Adolfo (September 7, 2000). Lesbian couple get license to wed Transsexual ruling clears the way. San Antonio Express-News
- ^ a b Lindell, Chuck (Aug. 10), "Abbott Declines Transgender Marriage Question: Two women marry in San Antonio using birth certificate showing one member of couple was born male", Austin American-Statesman, http://www.statesman.com/news/texas-politics/abbott-declines-transgender-marriage-question-852534.html, retrieved March 13, 2011
- ^ S. B. 723 (introduced version)
- ^ Vertuno, Jim (April 25, 2011), "Texas may strip away transgender marriage rights", The Associated Press, http://www.windstream.net/news/read.php?id=18582014&ps=1011&cat=&cps=0&lang=en, retrieved April 26, 2011
- ^ "History of the Republican Party of Texas". Republican Party of Texas. 2011. http://www.texasgop.org/inner.asp?z=3. Retrieved 19 January 2011.
- ^ Schwartz, John. "Election Results: Texas - State Highlights". Election 2010. New York Times. http://elections.nytimes.com/2010/results/texas. Retrieved 24 January 2011.
- ^ Perry Calls Sodomy Law ‘Appropriate’
- ^ a b c d e f g "2010 State Republican Party Platform". Tarrant County Republican Party. 2010. http://tcgop.org/wp-content/uploads/2010/06/2010_RPT_PLATFORM.pdf. Retrieved 19 January 2011.
- ^ http://www.publicpolicypolling.com/pdf/2011/PPP_Release_TX_0923424.pdf
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 Kos)
- The Sensibilities of Our Forefathers: The History of Sodomy Laws in the United States - Texas, by George Painter
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