Sodomy ban

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".^[6][7] As of 2023, Texas is one of the three states whose dormant sodomy laws only apply to same-sex sexual acts, alongside Kentucky and Kansas.^[8][9] Several bills repealing the sodomy bans were introduced since 2003, but none of them made it past the committee stage.^[10]

Romeo and Juliet law

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, so long as the person is not of the child's same sex.^[11] There has been no published constitutional challenge of this statute since the 2015 U.S. Supreme Court ruling in Obergefell v. Hodges, in which the court held that same-sex marriage bans breach the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.^[12][13] Texas has been the only state to maintain such a distinction on its books since the Kansas Supreme Court found a similar Kansas statute to be unconstitutional in 2005.^[14] During the Legislature's 2013 regular session, House Bill 2403,^[15] introduced by Representative Mary González, House Bill 3322,^[16] introduced by Representative Coleman, and Senate Bill 1316,^[17] introduced by Senator John Whitmire, would have repealed this distinction; however, none of these bills was passed by its chamber of origin.^[18][19][20]

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.^[21] In September 2015, it was reported that 2,500 same-sex marriage licenses had been issued in the state since June.^[22]

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,^[30] Dallas,^[31] Fort Worth,^[32] El Paso,^[33] Houston,^[34] and San Antonio^[35] 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.^[36] 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.^[37]

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.^[38][39]

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.^[40][41]

Travis County allows the domestic partners of county employees to participate as dependents in the county's group insurance plan.^[42]

El Paso County provides health benefits to unmarried partners of county employees.^[43]

Bexar County allows county employee benefits to be extended to domestic partners.^[44]

Family and relationship policy

Efforts to restrict gender-affirming healthcare

The signing of Senate bill 14 (SB 14) in June 2023, effectively banning gender-affirming care for minors, follows a number of earlier and ongoing attempts to pass laws with similar effects.^[70] For example:

• In May 2021, although an effort to ban gender-affirming healthcare for minors (House Bill 1399) missed its legislative deadline in the House,^[71] a similar bill (Senate Bill 1311) was passed by the Senate in an 18–13 vote. The bill would revoke the medical license of any doctor who provides gender-affirming healthcare, including puberty blockers, to minors.^[72]
• 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.^[73] 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 such care, with "criminal penalties" for those who knowingly fail to report.^[74] Five district attorneys said they would not follow the order.^[75][76] The ACLU and Lambda Legal sued over the order,^[77] and many medical groups condemned it.^[78] In March 2022, the Texas Third Court of Appeals reinstated a temporary injunction barring enforcement of Abbott's directive.^[79] The ACLU sued on behalf of a family being investigated.^[80]

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.^[81][82]

In July 2022, the state of Texas hired Dr. James Cantor as an expert witness in defense of a directive from Texas Governor Greg Abbott barring minors from receiving gender-affirming care.^[83] The suit was supported by LGBT advocacy group PFLAG.^[84] According to an article in the Houston Chronicle, Cantor said that for minors experiencing gender dysphoria, the condition may desist and they may become cisgender gay or lesbian people.^[83] The attorneys for the plaintiffs objected saying that the studies referred to "tomboys" and "effeminate" youth.^[83] They further argued that Cantor lacked practical experience treating minors with gender dysphoria, and most of the studies he cited were published before 1988.^[83]

Also in July 2022, Yale University released a point by point rebuttal of the justifications given by Texas and Alabama for their bans on youth gender affirming care, stating that puberty blockers and hormone therapies are in fact safe and effective for treating gender dysphoria, that "these are not close calls or areas of reasonable disagreement", and that both states "ignore established medical authorities and repeat discredited, outdated, and poor-quality information" and repeatedly cite "a fringe group whose listed advisors have limited (or no) scientific and medical credentials and include well known anti-trans activists".^[85]

• In April 2023, an extensive bill (SB 1029) passed the Texas Senate by a vote of 18–12. The bill would hold physicians and health insurers financially liable for any complications of gender-affirming care over the patient's life, including for reversing said care. It would also forbid publicly funded health plans from covering gender-affirming treatment.^[86] The bill was referred to the legislature's State Affairs Committee and has yet to be voted on in the House of Representatives.^[87]

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 [prior 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.^[88]

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.' "^[88]

Social workers and discrimination

In October 2020, a new "internal policy" and regulation within Texas permitted discrimination by social workers against LGBT individuals and individuals with a disability who are clients.^{[89][90][91][92]}

On February 23, 2022, Texas Governor Greg Abbott signed an order to direct the Texas Department of Family and Protective Services to investigate providing gender-affirming healthcare to transgender people under 18 as child abuse.^[93] He also encouraged licensed professionals who work with children and the general public to report the parents of transgender youth.^[94] On March 1, 2022, the American Civil Liberties Union (ACLU), the ACLU of Texas and Lambda Legal filed a lawsuit to block the directive on the behalf of Dr. Megan Mooney, a clinical psychologist, and an anonymous family containing two supportive parents and a 16-year-old transgender girl who was being treated with puberty blockers to prevent gender dysphoria.^[95][96][80]

Stance on LGBT support organizations

In February 2022, the Texas Department of Health and Human Services removed a listing for The Trevor Project, a national organization for LGBT youth, from its online suicide prevention resources.^[97]

Transgender people in the performing arts

A bill which, if passed, will widen the definition of "sexually oriented businesses" (SOBs) was prefiled in the Texas legislature in November 2022.^[98] The intent of HB 643, according to the filing member Rep. Jared Patterson, is to criminalize allowing minors to attend drag shows, but the new, broader definitions of "sexually oriented businesses" contained in the bill will capture a range of public performances other than "drag shows".^[99] They will also restrict access to any entertainment where, either, transgender persons perform in any role, or cisgender persons depict characters of diverse or ambiguous genders, such as occurs in many traditional theatrical productions. This is because the bill covers any performance where a performer uses "clothing, makeup, or other physical markers" to "exhibit a gender" at variance from the one assigned to them at birth and also "sings, lip syncs, dances, or otherwise performs" in front of an audience.^[100] As currently defined, SOBs are businesses where anyone performs nude, as in, for example, "strip shows".^{[98][101][102]}

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.^[103] In 2022, Texas became a plaintiff in a federal lawsuit to overturn some LGBT protections on Constitutional grounds.^[104]

State law

As of 2021^[update], no Texas state law protects employees from discrimination based on their sexual orientation or gender identity.^[105] 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.^[106] During the Legislature's 2013 regular session, House Bill 238^[107] introduced by Representative Mike Villarreal, House Bill 1146^[108] introduced by Representative Eric Johnson, and Senate Bill 237^[109] introduced by Senator Leticia Van de Putte would have prohibited this kind of discrimination; however, all these bills died in their respective committees.^{[110][111][112]} Judge Lee Rosenthal of the Southern District Court of Texas has ruled that sexual orientation and gender identity fall under Federal Protections.^[113] 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.^[114] The judge, who had been appointed by President George H. W. Bush in 1992, cited other recent cases as shaping the final decision.^[114]

Texas state law does not protect persons from housing or public accommodations discrimination based on their sexual orientation or gender identity or expression.^[115] House Bill 2215 introduced by Representative Jessica Farrar in the Legislature's 2009 regular session would have prohibited this kind of discrimination;^[116] however, the bill died in the Judiciary and Civil Jurisprudence committee of the House of Representatives.^[117]

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^[118] introduced by Representative Senfronia Thompson, House Bill 541^[119] introduced by Representative Robert Alonzo, and Senate Bill 73^[120] introduced by Senator Rodney Ellis would have prohibited this kind of discrimination; however, all these bills died in their respective committees.^{[121][122][123]}

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,^[138] Dallas,^[139] Fort Worth,^[140][141] Plano^[142] and San Antonio^[143][144] 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.^[145][146]

Grand Prairie,^[147] McAllen, and Round Rock have a city policy prohibiting city employment discrimination on the basis of sexual orientation only.

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.^[167][168]

El Paso ISD has similar protections, worded as "gender stereotyping and perceived sexuality."^[169][170]

Cedar Hill ISD has protections for sexual orientation only.^[171][172]

Pflugerville ISD has explicit protections for employees only,^[173] but these same explicit protections are missing from the student non-discrimination policy.^[174]

University LGBT non-discrimination policies

Discrimination in Texas

Birth certificates

Texas has no specific provision regarding sex-marker change in statute.^[2] For people to legally change the sex ("gender") indicator on their birth certificates, Texas requires a court order. Judges may exercise their discretion, and, according to information compiled by the Travis County Law Library, judges "often look to the Current Standards of Care (SOC)"^[186] as set by the World Professional Association for Transgender Health (WPATH) when considering petitions.^[187] Applicants are required to have undergone "appropriate treatment", but sex reassignment surgery, nor any other specific treatment, is not required. A "narrative statement" from a doctor or therapist stating the individual has received, in the health professional's opinion, appropriate care, and it is in their best interest that the person's record is changed must be included in the applicant's petition to the court.^[2][186]

Gender-affirming healthcare

Marriage and gender identity

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.^[1]

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.^[195] This ruling allowed a person born male who transitioned to female to marry a woman in that court's jurisdiction.^[196][197] In February 2014, the Texas Court of Appeals in Corpus Christi held that state law had changed since Littleton and now recognized sex reassignment, so that parties to a lawsuit contesting whether or not a marriage was an invalid same-sex marriage or a valid different-sex marriage needed to have their dispute heard by a trial court.^[198]

Transgender sports restrictions

In October 2021, the Texas Legislature passed a bill, HB25, to legally ban transgender individuals within any female sports, Olympics, or athletics teams.^{[199][200][201]} The Governor of Texas Greg Abbott signed the bill into law,^[202] which went into legal effect from January 18, 2022.^[203]

The bill requires that students enrolled in public schools may only participate in athletic competitions within the sex (or "gender") category they were assigned at birth. This means that if the officially registered sex at birth differs from one's gender identity and expression, an individual may not participate in events or in teams of that gender identity, but only in those for their "original" sex.^[204] The restriction applies in all public schools from Kindergarten to 12th grade in Texas.

The stated intention of the bill is fairness in school sports by preventing any physical advantage that transgender students may have.^[205] Possible advantages of concern are stated, for example, as a competitor having biological male sex, with likely increased muscle mass and strength, compared to the average competitor of female sex, but competing as a female. In this way—proponents of the bill believe—the transgender individual would have an unfair advantage. Against this, the higher production of testosterone that promotes greater muscle and bone mass does not commence until adolescence, before which there is negligible sex-based group differences between boys and girls, in terms of speed, strength, stamina and other sports-related traits. Post adolescence, biological males as a group will, on average, have certain physical advantages over females as a group. Such secondary sex characteristics do not necessarily confer advantages in all sports. Additionally, while feminizing hormone therapy itself dramatically reduces testosterone, anti-androgen medication is often used in conjunction with estrogen to suppress masculinizing effects, which leads to decreases in muscle mass.^[206][207]

The HB25 bill is more extensive than existing University Interscholastic League (UIL) rules which has the similar requirement of students only being allowed to participate in athletic competitions with the same group of assigned sex. However, the UIL rule accepts amended birth certificates, which allows transgender people to participate with the opposite sex if in their official certificate it has changed.^[208] HB25 has no written guidance on how schools are to carry out and enforce the bill, but language in the bill directs to the UIL to create said process.^[209] UIL's language upholds Title IX, the federal law that prohibits any discrimination based on sex.^[210]

Hate crime law

On May 11, 2001, Governor Rick Perry signed House Bill 587,^[211] popularly but unofficially known as the James Byrd Jr. Hate Crimes Act,^[212] 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.^{[upper-alpha 1]}

In the first decade after the law took effect on September 1, 2001, local law enforcement agencies had reported about 200 crimes per year as hate crimes. However, fewer than one case a year on average had been successfully prosecuted in Texas as a hate crime.^[4] This is among the states with the lowest percentage of prosecuted hate crimes.^[4]

Sex education

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...."^[213] In practice, few school districts include that language about homosexual conduct in their sex education materials.^[214]

In November 2020, the Texas Board of Education updated the sex education materials policy, ^[215] and voted in favor of changing the anti-bullying definition to include “sexual bullying". There was an effort by 5 Democratic board members to expand the policy to include “bullying and harassment because of sexual orientation and gender identity or expression,” but was blocked by 10 Republican members of the board.

As of December 2020^[update], the Texas "no promo homo law" still remains on the statute books.

Transgender Education Network of Texas

The Transgender Education Network of Texas (TENT) works to further gender diversity equity in the U.S. state of Texas.^[234] As of 2016, the organization was registered as a 501(c)(3) not-for-profit organization in the United States.^[234]

TENT was founded in 2002 as the Austin Transgender Ordinance Initiative.^[235] TENT's main work is in education, advocacy, and empowerment,^[234] and it works in both public and private forums to prevent discrimination against transgender, non-binary, and intersex people in Texas. It also supports pro-transgender legislation in Texas.^[236]

TENT is a member of the Austin GLBT Chamber of Commerce.^[237] In community advocacy, it partners with other organizations such as the American Civil Liberties Union (ACLU) of Texas, Anti-Defamation League of Central Texas, Equality Texas, Human Rights Campaign and the Texas Freedom Network.^[238]

In addition to offering "cultural competency" seminars, workshops and presentations itself to a variety of organizations,^[234] TENT has also collaborated with other research and education initiatives. One such research collaboration aimed to understand and improve the education of transgender-related health topics within Texas nursing programs' curricula.^[239]

One of the organization's primary focuses has been collecting the testimonies of transgender, non-binary, and intersex people and their allies in Texas.^[234] Many of these testimonies were collected specifically in reaction to the proposal of Texas SB6, a "bathroom bill" intending to limit bathroom access based on the sex listed on one's birth certificate. The organization maintains a record of testimony provided to the Texas State Senate's committee of State Affairs regarding SB6 by transgender, non-binary, and intersex people and their allies on its website.^[240][241]

In March 2018, as part of a coalition with ACLU of Texas, Equality Texas, and Lambda Legal, TENT created TxTransKids.org, a support network and resource center for elementary and high school transgender students and their families.^[242]