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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.<ref>[http://christielee.net/crtdec2.htm ''Littleton v. Prange''] 4th Texas Court of Appeals ruling</ref><ref name="pesquera2000">Pesquera, Adolfo (September 7, 2000). Lesbian couple get license to wed Transsexual ruling clears the way. ''[[San Antonio Express-News]]''</ref><ref name = abbot>{{Citation
In the 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.<ref>[http://christielee.net/crtdec2.htm ''Littleton v. Prange'', Texas Court of Appeals, San Antonio, October 27, 1999]</ref><ref name="pesquera2000">Pesquera, Adolfo (September 7, 2000). Lesbian couple get license to wed Transsexual ruling clears the way. ''[[San Antonio Express-News]]''</ref><ref name = abbot>{{Citation
| last = Lindell
| last = Lindell
| first = Chuck
| first = Chuck

Revision as of 10:32, 10 October 2012

LGBTQ rights in Texas
Texas (US)
StatusLegal since 2003
(Lawrence v. Texas)
Gender identityNo statewide anti-discrimination laws; sex-change recognized for purposes of marriage licenses
Discrimination protectionsNone (some communities do provide local protections)
Family rights
Recognition of relationshipsNone
RestrictionsTexas Constitutional Amendment (2005) limits marriage to man/woman, forbids non-marriage types of same-sex unions
AdoptionNo restrictions

Fewer[clarification needed] 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.

Laws regarding same-sex sexual activity

Further information: Sodomy laws in the United States#State laws prior to 2003 invalidation

"Deviate sexual intercourse"[Note 1] between persons of the same sex was a Class C misdemeanor, punishable by a fine not to exceed $500,[Note 2] until the U. S. Supreme Court in 2003 declared the state's sodomy law unconstitutional in the landmark case Lawrence v. Texas. The statute itself,[Note 3] however, has not yet been removed from the Texas Penal Code. Texas is one of three states (along with Oklahoma[Note 4] and Kansas[Note 5]) where unenforceable sodomy laws have not yet been repealed by legislative action.

Concerning the AIDS and HIV model education programs developed by the Texas Department of State Health Services and made available to the public, Texas law requires the "materials in the education programs intended for persons younger than 18 years of age ... [to] state that homosexual conduct is not an acceptable lifestyle and is a criminal offense under Section 21.06, Penal Code."[1] This law also has not been modified since Lawrence v. Texas.

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.[2]

Recognition of same-sex relationships

See also: Same-sex unions in the United States and Texas proposition 2 (2005)

On November 8, 2005, Texas voters amended the state constitution to outlaw both same-sex marriage and "any legal status identical or similar to marriage."[Note 6]

In 1997, the Texas legislature expressly prohibited the issuance of marriage licenses to same-sex couples.[Note 7] In 2003, the legislature enacted a statute that made void in Texas any same-sex marriage or civil union.[Note 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.[Note 9] The constitutionality of refusing to recognize a lawful marriage performed in another state remains in dispute.[citation needed] 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,[citation needed] but some discretion has also been given to states in certain matters.[citation needed] 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."

On October 2, 2009, a Texas district court judge ruled the state's same-sex marriage ban unconstitutional while presiding over the divorce proceedings for two Texans married in Massachusetts, clearing the way for both Texas' first same-sex divorce and a legal challenge to the same-sex marriage ban.[3] The state attorney general intervened in the case. On August 31, 2010, the Texas 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 Texas district courts do not have subject-matter jurisdiction to hear a same-sex divorce case.[4] The case is cited as In Re: Marriage of J.B. and H.B. In Re State of Texas (No. 05-09-01170-CV) and is pending before the Texas Supreme Court.[5]

On January 7, 2011, the Texas Court of Appeals in Austin ruled that the state attorney general does not have standing to appeal a district court judge's granting of a divorce to a same-sex couple who were married in Massachusetts.[6] The case is cited as State of Texas v. Angelique S. Naylor and Sabina Daly (No. 03-10-00237-CV) and is pending before the Texas Supreme Court.[7]

Adoption of children

In Texas, any adult may adopt a child without regard to the adult's sexual orientation or gender identity.[8]

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.[9] The primary purpose of the certificate is to prove the parent / child relationship with outside entities, such as schools, insurance companies, and passport offices.[citation needed]

Discrimination protection

Texas state law does not protect employees from discrimination based on sexual orientation or gender identity.[10] 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.[11]

Similarly, Texas state law does not protect persons from housing discrimination based on sexual orientation or gender identity.[12]

Five of the six most populous Texas cities (Houston,[13] Dallas, Austin,[14] Fort Worth,[15][16] and El Paso) have local laws prohibiting discrimination on the basis of sexual orientation or gender identity. The second largest city, San Antonio, does not.

Austin,[17] El Paso,[18] and San Antonio[19] provide health insurance to domestic partners of city workers.

Hate crimes law

On May 12, 2001, Governor Rick Perry signed House Bill 587,[20] known unofficially as the James Byrd, Jr. Hate Crimes Act,[21] which strengthened penalties for certain crimes motivated by a victim's race, color, disability, religion, national origin or ancestry, age, gender, or sexual preference.[Note 10] Gender identity was not covered by this legislation.

Since the bill took effect September 1, 2001, less than one case a year on average has been successfully prosecuted in Texas as a hate crime. This is despite the fact that local law enforcement agencies have reported about 200 crimes per year as hate crimes.[22]

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.[23][24]

In the 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.[25][26][27] 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.[26][27]

Texas Republican Party

The Texas Republican Party holds all statewide offices in Texas and controls both houses of the Texas legislature,[28] majorities that were increased in the 2010 election.[29] Its 2010 party platform contained numerous statements dismissive of LGBT rights.[30][Note 11]

The Governor of Texas, Republican Rick Perry, is known for his socially conservative views on homosexuality. He has opposed gay marriage and dismissed the Lawrence v. Texas U. S. Supreme Court decision as the product of "nine oligarchs in robes".[31]

Public opinion

A June 2009 Texas Politics survey found that 29 percent of Texans believed that gay and lesbians should have the right to marriage, 32 percent believed that gays and lesbians should have the right to civil unions but not to marriage, 32 percent believed that gays and lesbians should not have the right to civil unions or marriage, and 8 percent did not know. The margin of error was 3.22 percent.[32]

A February 2010 Texas Politics survey found that 28 percent of Texas registered voters believed that gay and lesbians should have the right to marry, 35 percent believed that gays and lesbians should have the right to civil unions but not marriage, 30 percent believed that gays and lesbians should not have the right to civil unions or marriage, and 7 percent did not know. The margin of error was 3.46 percent.[33]

A May 2011 Texas Politics survey found that 30 percent of Texas registered voters believed that gay and lesbians should have the right to marry, 31 percent believed that gays and lesbians should have the right to civil unions but not marriage, 33 percent believed that gays and lesbians should not have the right to civil unions or marriage, and 6 percent did not know. The margin of error was 3.46 percent.[34]

A September 2011 Public Policy Polling survey found that 24 percent of respondents supported same-sex marriage, 35 percent believed that gays should be allowed to form civil unions but not marry, 40 percent believed that there should be no recognition of a gay couple's relationship, and 1 percent were not sure.[35]

A February 2012 Texas Politics survey found that 31 percent of Texas registered voters believed that gay and lesbians should have the right to marry, 29 percent believed that gays and lesbians should have the right to civil unions but not marriage, 33 percent believed that gays and lesbians should not have the right to civil unions or marriage, and 7 percent did not know. The margin of error was 3.46 percent.[36]

Summary table

Homosexuality legal Yes (since 2003)
Gays allowed to serve in the military Yes (Nationally since 2011)
Equal age of consent No[37]
Anti-discrimination state laws for sexual orientation No
Anti-discrimination state laws for gender identity or expression No
Hate crime laws include sexual orientation 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[38]
Joint adoption by same-sex couples Yes[39]
Access to IVF for lesbians Yes [clarification needed]
Same-sex marriages No[40]
MSMs allowed to donate blood No (national prohibition)[41]

See also

Notes

  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. ^ 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."
  7. ^ Texas Family Code sec. 2.001(b)
  8. ^ Texas Family Code sec. 6.204
  9. ^ Texas Family Code sec. 6.204(c)
  10. ^ 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."
  11. ^
    • 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 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."
    • 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 would prevent any homosexual person who had never been convicted of any crime not only from adopting but from even visiting a minor child.

References

  1. ^ Texas Health and Safety Code sec. 85.007(b)
  2. ^ Texas Penal Code sec. 21.11(b)
  3. ^ Dallas Morning News, October 2, 2009.
  4. ^ Appleton, Roy (August 31, 2010). "Dallas judge's ruling saying gay couple could divorce in Texas rejected on appeal". The Dallas Morning News. Retrieved 2010-08-31.
  5. ^ the Supreme Court of Texas Blog, last updated July 26, 2012
  6. ^ Kreytak, Steven (January 7), "Same-sex divorce stands under appellate ruling: Attorney general did not have standing to intervene in case, court declares", Austin American-Statesman, retrieved March 13, 2011 {{citation}}: Check date values in: |date= and |year= / |date= mismatch (help)
  7. ^ the Supreme Court of Texas Blog, last updated July 26, 2012
  8. ^ Texas Family Code sec. 162.001
  9. ^ 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."
  10. ^ Texas Labor Code sec. 21.051
  11. ^ Brendel, Patrick (January 14, 2011), Bill would stop Texas employers' discrimination based on sexual orientation, gender identity, The Texas Independent, retrieved October 7, 2012
  12. ^ Texas Property Code sec. 301.021(a)-(b)
  13. ^ Lambda Legal (2003–2011), Texas, retrieved October 7, 2012{{citation}}: CS1 maint: date format (link)
  14. ^ Chapters 5.1, 5.2, 5.3, and 5.4 of the Austin City Code
  15. ^ Fort Worth City Council Ordinance 14344, adopted September 26, 2000
  16. ^ Fort Worth City Council Ordinance 18909-11-2009, adopted November 10, 2009
  17. ^ "Governments Offering Benefits: Texas", Partners Task Force for Gay & Lesbian Couples
  18. ^ Grissom, Brandi (October 1, 2011). "In El Paso, a Storm Over Benefits for Gay Partners". The New York Times.
  19. ^ "What You Need to Know", Civilian Employees, Human Resources Department, City of San Antonio
  20. ^ Enrolled version of House Bill 587, 77th Texas Legislature, Regular Session, 2001
  21. ^ Associated Press (May 12, 2001). "Texas Governor Signs Hate Crimes Bill". Ross Institute Internet Archives. Retrieved October 7, 2012.
  22. ^ "Texas hate crime law has little effect", Austin American-Statesman, reported by Eric Dexheimer, January 21, 2012
  23. ^ "Gender Reassignment Surgery (GRS) Texas (TX)". LocateADoc.com. Retrieved 19 January 2011.
  24. ^ "FTM SRS Surgeons". The Transitional Male. Retrieved 19 January 2011.
  25. ^ Littleton v. Prange, Texas Court of Appeals, San Antonio, October 27, 1999
  26. ^ a b Pesquera, Adolfo (September 7, 2000). Lesbian couple get license to wed Transsexual ruling clears the way. San Antonio Express-News
  27. ^ 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, retrieved March 13, 2011 {{citation}}: Check date values in: |date= and |year= / |date= mismatch (help)
  28. ^ "History of the Republican Party of Texas". Republican Party of Texas. 2011. Retrieved 19 January 2011.
  29. ^ Schwartz, John. "Election Results: Texas - State Highlights". Election 2010. New York Times. Retrieved 24 January 2011.
  30. ^ "2010 State Republican Party Platform" (PDF). Tarrant County Republican Party. 2010. Retrieved 19 January 2011.
  31. ^ "MAP: Has Your State Banned Sodomy?", Mother Jones, authored by Tim Murphy, April 19, 2011
  32. ^ University of Texas, Government Department, Texas Statewide Survey, Field Dates: June 11-22, 2009, Question 38, page 12
  33. ^ University of Texas / Texas Tribune, Texas Statewide Survey, Field Dates: February 1-7, 2010, Question 41, page 11
  34. ^ University of Texas / Texas Tribune, Texas Statewide Survey, Field Dates: May 11-18, 2011, Question 24, page 7
  35. ^ Texas Survey Results, Public Policy Polling, Question 2, September 15-18, 2011
  36. ^ University of Texas / Texas Tribune, Texas Statewide Survey, Field Dates: February 8-15, 2012, Question 43, page 14
  37. ^ Texas Penal Code sec. 21.11(b)
  38. ^ Texas Family Code sec. 162.001
  39. ^ Texas Family Code sec. 162.001
  40. ^ Texas Family Code sec. 6.204
  41. ^ "Blood Donations from Men Who Have Sex with Other Men Questions and Answers", U.S. Food and Drug Administration, June 18, 2009

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