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86th TX Lege

Pro-LGBTQ Bills Look Dead in the Texas House, but Advocates Say They’ve Still Made Progress This Year

“Having a hearing is sometimes a victory,” said state Rep. Celia Israel, D-Austin, whose conversion therapy ban was debated for the first time this year.

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State Rep. Julie Johnson, D-Carollton, announced the new LGBTQ Caucus on Feb. 5 in Austin. Photo credit: Emree Weaver / The Texas Tribune

This article originally appeared in The Texas Tribune

In every session since she was elected to the Texas House, state Rep. Celia Israel has taken aim at the controversial practice of conversion therapy for minors, proposing to penalize state-licensed counselors and therapists who attempt to change children’s sexuality or gender identity.

In 2015, Israel’s first session, her bill was referred to committee but never debated. In 2017, history repeated itself.

But last week, for the first time, the Austin Democrat’s proposal was debated in a public hearing, where she and other supporters exhorted lawmakers to put an end to a practice they said has proven harmful and sometimes led to abuse. Others spoke in favor of the practice, calling it healing and positive.

There was no vote; that historic hearing is as far as the bill will make it this session. Midnight Monday marked the Texas House’s effective deadline for advancing bills out of committee — without a favorable vote by then, House bills are all but dead.

Israel’s bill is just one on a slate of pro-LGBTQ rights legislation that has been perennially filed but not considered even at the earliest stage in Texas’ Republican-dominated Legislature. This year, a number of such bills were debated in House committees for the first time, but they look unlikely to progress further.

Still, committee debate marks more than a symbolic win, Israel said.

“The bill isn’t going to pass, but having a hearing is sometimes a victory,” she said. “I’m pragmatic, and I also recognize that if I had a good hearing, that I would do some good. You never know who’s watching.”

Two years ago, when state Rep. Garnet Coleman, D-Houston, filed a bill to add crimes against gay and transgender Texans to the state’s hate crimes statute, it never moved. This year, it was debated in committee. In 2017, a bill that would have smoothed the process for transgender Texans to change the gender markers on their official documentation never moved; this year, a similar measure got a hearing.

And a sweeping bill by state Rep. Jessica Farrar, D-Houston, that aims to prevent anti-LGBTQ discrimination in public accommodations — a measure that stalled last session — was debated in a late-night House State Affairs Committee hearing this year in April.

“Gosh, I love this bill. … It’s sort of sad because it’s actually hard for me to imagine that this will move beyond this committee, unfortunately,” Ash Hall, an advocate for LGBTQ issues, acknowledged at that hearing. “It’s really cool to finally be able to testify in favor of something at this committee. … Thank you for giving this bill some time.”

None of those bills was approved by Monday’s midnight deadline. But taken together, the hearings indicate that “these issues are finally being considered more mainstream in the Texas Legislature … [after] they became mainstream among the public quite some time ago,” said Samantha Smoot, interim director of Equality Texas.

“It does take persistence and movement building and changing hearts and minds to change public policy,” Smoot said. “We’re seeing this happen this session in a way that we haven’t seen it before.”

That progress has come in a Texas House run by a new speaker, Angleton Republican Dennis Bonnen, and in a chamber populated by a dozen more Democrats than in 2017. Looking back at a 2018 election that was punishing for Republicans and looking ahead to a 2020 cycle that could be equally perilous, the Legislature has spent more time this year on bread-and-butter issues like property taxes and school finance than on social issues. But when it has tackled them, the House has shown itself to be a somewhat more moderate chamber, advancing a bill that would decrease the penalties for marijuana possession and — so far — avoiding votes on many hardline conservative social priorities.

Perhaps most important, the Legislature now has its first-ever LGBTQ caucus, a group of five out women and allies.

“Our membership here in the caucus has made a huge impact,” said state Rep. Julie Johnson, a Dallas Democrat whose wife, Susan Moster, made history as the first same-sex spouse invited to join the Legislative Ladies Club, a social group for Texas House members’ spouses. “It’s hard to hate up close.”

For advocates, though, there’s lots of progress still to be made. Texas has no law explicitly protecting LGBTQ communities from being fired or denied housing based on their identities. Various proposals to address that — either in a sweeping nondiscrimination bill or in a more piecemeal approach, like Dallas Democrat Eric Johnson’s repeated efforts to ban employment discrimination — look to be stuck in the legislative gears again this year. With less than a month to go before session ends, those measures are unlikely to make it to the governor’s desk — or even the floor of either chamber.

And, of course, some bills this session — mostly out of the Texas Senate — have put gay rights advocacy groups on defense. There is always the concern, too, that even bills advocates consider inoffensive could be amended on the floor.

Perhaps the biggest fight so far has been over what began as a relatively straightforward bill to override cities’ ordinances requiring businesses to offer employees paid sick leave. The original bill protected local nondiscrimination ordinances — which could have been threatened by a state law overriding local measures governing employment policies — but a Senate committee substitute stripped the protection out, stoking fear among advocates. The Senate ultimately passed a suite of paid sick leave bills without any explicit protections for those nondiscrimination protections — language advocates said leaves gay communities vulnerable, though the bills’ author insisted they do not threaten nondiscrimination ordinances.

But even the progress of that legislation seems to bode well for advocates. The House State Affairs Committee restored the nondiscrimination language. State Rep. Dade Phelan, the Republican who chairs the powerful panel, said in an interview that he’s “done talking about bashing on the gay community.”

“It’s completely unacceptable,” said Phelan, who represents Beaumont. “This is 2019.”

The Senate also passed what many LGBTQ advocates consider the session’s biggest threat to their community: a sweeping religious refusals bill that would allow occupational license holders like attorneys and social workers to cite “sincerely held religious beliefs” when their licenses are threatened over professional speech or conduct. Advocates, concerned that the bill would embolden workers to deny service to gay and transgender clients, call that bill a “license to discriminate.” Lubbock Republican Charles Perry, its author, insisted during a floor debate that “this bill does nothing to promote any illegal or discriminatory activity.”

That bill has been referred to Phelan’s House committee, but he has not scheduled it for a hearing.

In the meantime, Senate bills to advance LGBTQ rights have gone nowhere.

State Sen. José Menéndez, a San Antonio Democrat who filed many of those, said he has requested hearings for his anti-discrimination bills, but so far none have been scheduled.

“We are very aggressively trying to get our bills heard,” he said. “I will keep pushing. … Right now, with the politics of the membership of the Senate, it’s very hard to get progressive legislation through.”

Advocates and House Democrats said that discrepancy can be explained with one word: leadership.

“It all comes down to Dan Patrick,” Smoot said. “Our observation is that Speaker Bonnen is viewing these issues from a political lens and what he feels is best for his members, whereas Dan Patrick is motivated by his animus toward LGBTQ people.”

The lieutenant governor’s office did not return a request for comment.

In 2017, the more moderate House was a bulwark against the divisive policies of the more conservative Senate. Perhaps most notably, a “bathroom bill” that would have restricted the rights of transgender Texans to use certain public facilities passed the Senate but never made it to the House floor.

This year, the House seems to have maintained that role, watering down or stalling altogether measures that cause LGBTQ advocates to worry. But the chamber seems to be going further, in part because Bonnen, the new speaker, has installed Democrats at the helm of important committees — and, lawmakers said, given them freedom on how to run their panels.

“He didn’t clamp down on everybody and say, ‘You can’t have hearings on this stuff,’” Israel said.

Israel’s conversion therapy ban was heard in the House’s powerful Public Health Committee, which this year is chaired by a powerful Democrat in veteran lawmaker Rep. Senfronia Thompson. That’s the first step of many over many years, advocates said, toward making it law.

“You take two steps, and then next session, you take two more steps, and you continue to build the road of full equality,” Johnson said. “But it has to start somewhere.”

The Texas Tribune is a nonpartisan, nonprofit media organization that informs Texans — and engages with them – about public policy, politics, government and statewide issues.

Disclosure: Equality Texas has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

Emma Platoff is a breaking news and civil courts reporter at The Texas Tribune, where she started as a fellow in 2017. She is the first to fill either role. A recent graduate of Yale University, Emma is the former managing editor of the Yale Daily News and a former intern at The Philadelphia Inquirer and the Hartford Courant.

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86th TX Lege

New Texas Law Will Outlaw Unsolicited Nudes

The law will make the electronic transmission of unwanted sexually explicit material a class C misdemeanor. But legal experts worry it could be written too broadly under the First Amendment to be effective.

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Only 36% of adolescent boys in Texas were up to date on HPV immunization in 2016, according to federal data. Photo credit: Cooper Neill / The Texas Tribune

This article originally appeared in The Texas Tribune

A few years ago, Dallas resident and mother Brandy Davis was reentering the online dating scene. After matching with a “seemingly nice” man, the two exchanged phone numbers. Then, one afternoon while Davis was at work, the man sent her an unrequested nude photo of himself.

“I remember thinking, ‘If this is going to come unexpected like this, it could come at a time when my son has my phone,'” Davis testified during a May Senate hearing. “I was appalled … because nobody should be subjected to that.”

House Bill 2789, signed by Texas Gov. Greg Abbott in May, aims to put an end to experiences like Davis’. The law goes into effect Sept. 1 and makes the electronic transmission of sexually explicit material a Class C misdemeanor, with a maximum $500 fine, when the recipient hasn’t provided consent. The law will make Texas one of the first states to take a stand against sending sexually explicit images, which about 40% of women report receiving without consent.

The law won’t apply just to texts, but also to what’s sent over other platforms like email, dating apps and social media.

Rep. Morgan Meyer, R-Dallas, who authored the legislation, said as a father of three, he wanted to prevent a form of sexual harassment that previously went unchecked. The bill, he said, aims to close a gap in state law — indecent exposure is a crime in person, but not online.

“Quite frankly, the thought of someone doing that to one of my children scared me,” Meyer said. “There had to be some sort of deterrent to stop this from happening — and now there is.”

Meyer said representatives from Bumble, the mobile dating app headquartered in Austin, initially brought the idea of crafting legislation to him. During a May 13 Senate committee hearing, Bumble CEO Whitney Wolfe Herd testified in support of the legislation.

“Lately, it feels like men and women are being told that this increasingly common problem is really no big deal. Women in particular are expected to laugh this sort of thing off,” Herd testified. “But there’s nothing funny about it.”

But with a “staggering volume” of people affected, Dallas employment law attorney Michelle MacLeod, whose firm represents clients in sexual harassment cases, said enforcement could be challenging with limited resources.

J.T. Morris, an Austin-based attorney whose firm specializes in First Amendment rights, said difficulties may also arise if an accused sender claims he or she wasn’t the one who sent a lewd message.

That situation played out in the Texas Senate last year when state Sen. Charles Schwertner was accused of texting sexually explicit messages to a University of Texas at Austin graduate student. Schwertner denied the allegations, saying he hadn’t sent the texts, and a UT investigation found it was “plausible” a third party had sent them.

Morris said even emailing a doctor an image for medical purposes or posting a photo taken while breastfeeding could be considered criminal acts under the law, which he said is overly broad and vague.

That’s why David Anderson, a former UT Austin law professor who focuses on free speech, expects legal challenges to the law.

Four years ago, the Texas Legislature passed a similar law criminalizing revenge porn. The law was declared unconstitutional in April 2018 after a state appeals court said its broad restrictions infringed on free speech. It’s awaiting a final decision in the Texas Court of Criminal Appeals, and Anderson believes a similar constitutional challenge could mark the end for HB 2789.

“I don’t think it could survive,” Anderson said, “and even if it could, it probably won’t ever get to that stage. Who are they going to prosecute?”

Still, Meyer said the law isn’t aimed solely at punishing offenders.

“We understand that enforcement will be a challenge,” Meyer said, “but this bill is intended to serve as a deterrent as well. It’s keeping people aware that sending unsolicited lewd photos will not be tolerated … and stopping them from doing it in the first place.”

The Texas Tribune is a nonpartisan, nonprofit media organization that informs Texans — and engages with them – about public policy, politics, government and statewide issues.

Disclosure: Bumble and the University of Texas at Austin have been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

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86th TX Lege

Texas House Passes Religious Liberty Bill Amid LGBTQ Caucus’ Objections

What started as a sweeping religious refusals bill has been significantly watered down as it moves through the Texas Legislature. But LGBTQ advocates still fiercely oppose it, saying it perpetuates hateful rhetoric.

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State Rep. Julie Johnson, D-Carrollton, spoke against Senate Bill 1978 on the House floor Monday. Photo credit: Miguel Gutierrez Jr./The Texas Tribune

This article originally appeared in The Texas Tribune

Over the tearful opposition of the Legislature’s first-ever LGBTQ Caucus and several failed attempts at a procedural block, the Texas House passed a religious liberty bill Monday that LGBTQ advocates fear would license discrimination against their communities. 

When the lower chamber first considered the bill just over a week ago, the LGBTQ Caucus torpedoed it with a procedural move. This time, an attempt to do the same failed, as did emotional exhortations from the five women who make up the caucus.

After two hours of debate, Senate Bill 1978 — which prohibits government entities from punishing individuals or organizations for their “membership in, affiliation with, or contribution … to a religious organization” — passed on a nearly party-line preliminary vote, 79-62. If the House grants formal approval and the Senate agrees to a change made on the lower chamber’s floor Monday, the bill will head to the governor.

“This bill is going to pass; let’s face it,” state Rep. Celia Israel, D-Austin, said from the front of the chamber minutes before her colleagues cast their votes. “It’s been cloaked in religious freedom, but the genesis, the nexus of this bill, is in hatred.”

When the bill was first filed, it contained sweeping religious refusals language that had the potential to gut the few existing protections for gay communities, hailing from a national sweep of anti-LGBTQ model legislation. As it’s made its way through the Legislature, the bill has been progressively stripped of its most controversial provisions, leaving a version that largely codifies existing legal protections: freedom of religion and freedom of association.

On Monday, House sponsor Rep. Matt Krause, R-Fort Worth, weakened the measure further, removing a provision that would have empowered the Texas attorney general to bring lawsuits against governmental entities accused of religious discrimination.

Krause said removing the provision was a show of “good faith,” as it had proved a “big sticking point” with opponents of the bill. Given the changes he described as efforts to compromise, Krause said he was surprised at the level of opposition to the measure.

“Look at the language in this bill,” Krause said. “There is nothing discriminatory in the language. … There is nothing discriminatory in the intent.”

But despite the revisions, the bill “perpetuates the rhetoric that leads to discrimination, to hate and ultimately bullying that leads to the consequence of people dying,” said state Rep. Mary González, D-Clint, who chairs the LGBTQ Caucus.

State Rep. Rafael Anchia, D-Dallas, who lobbed an unsuccessful point of order aimed at killing the bill, questioned Krause for some 30 minutes about how the bill might spark discrimination. And each member of the newly formed LGBTQ Caucus spoke against the bill, several of them emotionally, just before the House voted.

One member of the caucus, state Rep. Jessica González, D-Dallas, tried and failed to amend the bill with language that would have protected LGBTQ communities against discrimination from employers and the government. Currently, there is no state law that explicitly prohibits employers from firing workers based on their sexual orientation or gender identity, but some cities have codified those protections at the local level.

Her amendment failed 65-76.

With emotional appeals looking unlikely to change minds, several LGBTQ Caucus members tried to persuade their colleagues to oppose the bill out of practicality — telling them, sometimes subtly and at times directly, that a vote for this bill could hurt their reelection chances in 2020.

“Members, this bill is here, being debated on the floor today, to make LGBTQ Texans feel less than, to make us feel attacked by our government,” said state Rep. Erin Zwiener, a Driftwood Democrat and freshman member of the LGBTQ Caucus. “We are living in history, members. Attitudes toward the LGBTQ community have changed rapidly over the past few decades. Young Texans in particular are overwhelmingly accepting of people of all sexual orientations and gender identities.”

Then she put a finer point on it. “You don’t need this vote,” Zwiener said.

Minutes later, the bill passed, with just one Republican, state Rep. Sarah Davis of Houston, voting against it. House Speaker Dennis Bonnen, who has said he supports the bill, did not cast a vote, as is customary.

The bill was revived in the Texas Senate last week after the LGBTQ Caucus effectively kept it from passing earlier this month.

Proponents have said it is necessary to reaffirm protections based on religion, citing incidents like the San Antonio City Council’s decision earlier this year to prohibit Chick-fil-A from opening in the city’s airport, with one council member citing the franchise’s “anti-LGBTQ behavior.” Some supporters of the bill labeled it the “Save Chick-fil-A Bill.” Krause said no business should be discriminated against based on its donations to religious organizations. Texas Attorney General Ken Paxton, who has long cast himself as a crusader for religious liberty, launched an investigation into the city’s actions.

Proponents and detractors acknowledged that the bill is likely to spark activity in the courts. Krause said that even without a provision empowering the attorney general to sue, individuals and organizations have a private cause of action under the bill — and can always look to groups like the First Liberty Institute, a law firm that crusades for religious liberty.

Opponents, meanwhile, emphasized that challenges to the law would mean major costs to the state.

“I have no doubt that if passed, SB 1978 will be fought in the courts at every level and at great expense to the taxpayers. To vote yes today is to put your signature on that invoice,” said state Rep. Julie Johnson, the Dallas Democrat who successfully sank the bill in its first appearance on the House floor earlier this month. “The underlying message remains the same — and that message poisons this state. It sends the message that Texas is not open and welcoming to all.”

The Texas Tribune is a nonpartisan, nonprofit media organization that informs Texans — and engages with them – about public policy, politics, government and statewide issues.

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86th TX Lege

Texas Senate Passes Religious Liberty Bill That LGBTQ Advocates Fear Licenses Discrimination

The measure moved quickly through the Senate after the LGBTQ Caucus killed a near-identical proposal on a procedural motion last week in the Texas House.

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State Sen. Bryan Hughes, R-Mineola, on the Senate floor on May 15, 2019. Photo credit: Juan Figueroa / The Texas Tribune

This article originally appeared in The Texas Tribune

Over the fierce opposition of Democrats, the Texas Senate on Wednesday advanced a significantly watered-down version of a religious liberty bill whose original form some LGBTQ advocates labeled the most discriminatory piece of legislation filed this session.

The bill requires one more vote from the Senate before it can return to the Texas House, whose LGBTQ Caucus killed a nearly-identical proposal on a procedural motion last week. But the House is likely to advance the measure if given a second pass, at least according to the lower chamber’s leadership.

As filed, Sen. Bryan HughesSenate Bill 1978 contained sweeping religious refusals language that brought LGBTQ rights advocates out against it in force. Proponents, for their part, have labeled the Mineola Republican’s proposal the “Save Chick-fil-A Bill,” in reference to a provision that would empower the Texas attorney general to sue San Antonio for excluding the Christian-owned chicken franchise from its airport.

Senate Democrats used every means they had — long lines of questioning, a slew of proposed amendments and a procedural point of order — to fight the bill, or at least tweak it as it was debated. But ultimately, after three hours of discussion, the measure passed on a 19-12 vote, with Brownsville Democrat Eddie Lucio Jr. voting for it and Amarillo Republican Kel Seliger voting against it.

Still, the messy floor fight many advocates feared would load up the bill with discriminatory amendments did not materialize.

The original version of Hughes’ proposal prevented government retaliation against an individual based on that “person’s belief or action in accordance with the person’s sincerely held religious belief or moral conviction, including beliefs or convictions regarding marriage” — language advocates feared would embolden businesses to discriminate against gay Texans. The revision, which Hughes made on the floor, outlaws government retaliation against someone based on their association with or support of a religious organization. That revised language is largely duplicative of existing protections for freedom of religion and freedom of association.

But advocates — pointing to the bill’s origins, and to its roots as model legislation from anti-gay efforts across the nation — adamantly opposed the bill, lobbying lawmakers to do so as well. Samantha Smoot, interim director of the advocacy group Equality Texas, said this week the measure is “part of an insidious, coordinated strategy to advance anti-LGBTQ messages and discriminatory public policies.”

Democrats, questioning whether Hughes’ bill would protect organizations like the Westboro Baptist Church — called “arguably the most obnoxious and rabid hate group in America” by the civil rights group Southern Poverty Law Center — worked to amend the bill to clarify that it does not protect discriminatory groups hiding behind the cover of religion. Pointing to the law’s definition of “religious organization,” Hughes asserted such language was unnecessary, and said some amendments could “confuse” the bill.

State Sen. José Menéndez, a San Antonio Democrat who has filed a number of bills to outlaw discrimination against LGBTQ communities, questioned why the upper chamber is debating a measure that worries gay communities instead of a measure that protects their rights.

“Session after session, we end up entertaining legislation that sends a message to my LGBT staff members…They feel they’re coming under attack for who they are. So the question I have is: What do you say to them?” Menendez asked. “Do you think Chick-fil-A needs more protection from us than our constituents who have a history of being discriminated against?”

Throughout the lengthy floor debate, Hughes maintained that his bill does not sanction discrimination.

“I would only ask you to look at the language in this amendment we’ll be offering and show us where there’s discrimination,” Hughes said. In the new version of the measure, he said, “folks will be hard pressed to find discrimination.”

The bill will need to move quickly if it is to make it to the governor’s desk. The deadline for the House to pass it is Tuesday; before then, it must receive a committee hearing and approval, and also move through the lower chamber’s calendars committee.

Its chances look good in the lower chamber, though it died there on a procedural motion last week. House Speaker Dennis Bonnen told Spectrum News this week he personally supports the bill, adding, “I think it would pass the House.” A House companion bill has 70 co-authors, nearly half the chamber.

Hughes’ bill, which he amended on the floor, is near-identical to the House proposal that died last week — but with one notable difference.

Hughes’ bill says it does not apply to a 2017 law that made it illegal for the state to contract with companies unless they pledge not to boycott Israel; Gov. Greg Abbott recently signed a bill to narrow that law, excluding state contractors with very few employees, after a federal judge temporarily blocked the law’s enforcement, citing free speech concerns.

As senators slogged through the debate, one recurring theme from Democratic opposition was: Why spend time on a controversial measure when there are so many other priorities to complete? And, some added, if the bill is largely just a codification of existing protections, why bring it forward at all?

“Can you identify the shortcomings of the Constitution in protecting religious freedom?” asked Sen. Carol Alvarado, D-Houston.

“This is covered under the First Amendment, so I’m not sure what your angle is,” she added, after reading from it.

Responding to such questions, Hughes called the measure an important “vehicle for protecting those First Amendment rights.”

That vehicle could come in the form of a lawsuit from the Texas attorney general, who under Hughes’ legislation would be empowered to sue governmental entities accused of discriminating based on religious affiliations. One likely candidate for such a lawsuit is the fast food franchise Chick-fil-A, which was recently blocked from opening a restaurant in the San Antonio Airport after a member of the city council said he could not support a company with “a legacy of anti-LGBTQ behavior.”

Texas Attorney General Ken Paxton, who has billed himself as a crusader for religious liberty, leapt into the ensuing culture war, launching an investigation into the city’s actions in that case and asking the U.S. Department of Transportation to probe the situation as well.

The Texas Tribune is a nonpartisan, nonprofit media organization that informs Texans — and engages with them – about public policy, politics, government and statewide issues.

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