Never Mind Indiana — The Legislative Assault on LGBT Texans Is Even Worse

Indiana’s anti-LGBT discrimination has been hot news since last week. But Texas is in a league of its own when it comes to anti-LGBT discrimination legislation this year. We just sent out this joint press release with Equality Texas and the ACLU of Texas:

While outrage grows over potential discrimination allowed by religious refusal laws in Indiana and other states, Texas lawmakers are considering at least 20 bills in the current legislative session that would subject lesbian, gay, bisexual and transgender (LGBT) people to discrimination and even criminal prosecution.

“As troubling as the laws in Indiana and elsewhere truly are, Texas is in a league of its own when it comes to legislative efforts to legitimize and in some cases even mandate discrimination against its LGBT residents,” said Kathy Miller, president of the Texas Freedom Network. “Supporters of this avalanche of cruel, mean-spirited bills cynically declare that they should have the freedom to discriminate while ignoring the real-life consequences for people who, simply because of who they are and whom they love, could lose their jobs or homes or be denied public services that others take for granted. I’m certain most Texans don’t define freedom that way.”

The 20 bills (click here) that would subject LGBT Texans to discrimination can be grouped into four broad categories:

• Six bills, including two proposed amendments to the Texas Constitution, would allow businesses, government workers and other individuals to use religion to justify discrimination.
• Five bills would sweep away nondiscrimination protections passed by municipal and other local governments.
• Six bills openly seek to subvert any court ruling that the state’s ban on same-sex marriage violates the U.S. Constitution.
• Three bills would turn transgender people into criminals if they use a restroom that is appropriate to their gender identity. They would also turn employers and building managers essentially into bathroom police who must — under threat of fines and criminal prosecution — verify the gender of individuals using their restrooms.

The claim by Indiana’s governor that his state’s religious refusal bill simply mirrors other bills around the country is misleading, Miller said. Passed by a large, bipartisan majority of legislators in 1999, the Texas Religious Freedom and Restoration Act, or RFRA, allows individuals to challenge laws that “substantially” burden their practice of religion. It also includes provisions to ensure that the law can’t be misused to disregard civil rights protections against discrimination. Texas and other states passed such laws in the 1990s in response to government actions that truly affected the practice of religion, such as bans or restrictions on religious clothing. But the major impetus behind this new generation of bills is religious-right groups and others who object to same-sex marriage and laws that protect LGBT people from discrimination in employment, housing and public services.

In fact, the two constitutional amendments proposed in Texas this year would replace the state’s existing RFRA with much broader language that allows challenges to laws that someone thinks will burden his or her religious beliefs or practice in any way, substantially or otherwise. That would open the door to individuals and businesses using religion to justify discrimination against LGBT people and others at work, in housing and in public services. In addition, the amendments don’t include provisions barring the use of religion as an exemption to civil rights laws that protect against discrimination, said Rebecca Robertson, legal and policy director for the ACLU of Texas.

“The current law in Texas has worked well for more than a decade precisely because it ensures people can practice their faith without sacrificing other laws meant for the common good, like civil rights protections,” Robertson said. “The ACLU of Texas regularly uses this law to protect the rights of people of faith, but calls to expand religious exemptions are utterly misguided. Nothing in our Constitution gives people of faith a special exemption from following laws meant to protect everyone.”

While enactment of the constitutional amendments would require a two-thirds vote in the Texas House and Senate as well as by Texas voters on a statewide ballot, passage of the 18 other bills requires just a simple majority vote in the two legislative chambers. Major U.S. companies have pushed back hard against such laws passed recently in Indiana, Arkansas and other states. A number of those companies as well as national organizations have even announced that they will reconsider plans to expand operations or hold events in those states. Business leaders in Texas — as well as an increasing number of clergy and other faith leaders — have also been expressing their concerns that the proposed legislation in Texas makes the Lone Star State appear intolerant and unwelcoming.

On the other hand, some lawmakers have proposed at least 35 bills that would protect LGBT Texans and their families from discrimination. (Click here for a listing of those bills.) Those bills would, among other things, provide statewide anti-discrimination protections for LGBT Texans and allow both same-gender parents to be listed on the supplementary birth certificate of their adopted child, said Chuck Smith, executive director of Equality Texas.

“Indiana’s legislators could have avoided the current economic backlash if they had passed a RFRA similar to the 1999 Texas law, which carefully balances religious liberty and nondiscrimination,” Smith said. “Texas has been a national leader in protecting individual liberty, and now the Lone Star State has the opportunity to continue that tradition of leadership by passing nondiscrimination laws that protect the individual right of all Texans to work hard and protect their families regardless of sexual orientation and gender identity.”