Know Your Rights: Gay and Transgender Discrimination

In Texas 

Same-sex sexual activity was decriminalized in Texas in 2003 in Lawrence v. Texas. But this has yet to be codified as law. 

Texas has a hate crime statute that strengthens penalties for certain crimes motivated by a victim’ssexual orientation, although crimes are rarely prosecuted under the statute. The law does not cover gender identity.  

Recent Developments

Earlier this year, the state legislature passed HB 229, defining a woman as “an individual whose biological reproductive system is developed to produce ova,” and a man as “an individual whose biological reproductive system is developed to fertilize the ova of a female.”

From The Texas Tribune: “Most immediately, the bill will bolster an already existing block from state agencies on changes to gender markers on state documents, which was backed by a nonbinding opinion from Attorney General Ken Paxton in March. 

“The bill may also force those who have already switched their documents to match their identified gender to have changes reverted when they are renewed.

“Senate Bill 1188 creates a new section on all state medical records listing patients’ assigned sex at birth and any physical sexual development disorders. 

“It also bans changes to those gender markers for any reason other than clerical errors, and creates civil penalties for medical professionals who do change them.

“Senate Bill 12 bans Texas schools from teaching about sexual orientation or gender identity and forbids student clubs “based on” those subjects.

“The bill would prevent clubs like Gay-Straight Alliances and pride clubs, which are often tailored toward anti-bullying initiatives in schools.” 

These recommendations are from the ACLU, you can find the full collection of Know Your Rights articles here

Can an employer discriminate against me because of my sexual orientation or gender identity?

• Employers with 15 or more employees are prohibited by Title VII of the 1964 Civil Rights Act from discriminating based on sex, and the U.S. Supreme Court held in 2020 (Bostock v. Clayton County), that firing someone on the basis of sexual orientation and gender identity is sex discrimination.

• In addition, many states and cities have laws banning this kind of discrimination, and some of those laws apply to smaller employers.

• If you think that you have experienced discrimination at work, you can file a complaint with the U.S. Equal Employment Opportunity Commission (EEOC), or with your state human rights enforcement agency where applicable. Try to document everything like emails or HR papers that might be relevant.

Can a landlord refuse to rent to me?

• The federal Fair Housing Act prohibits sex discrimination by most landlords. Under this reasoning, the Fair Housing Act also should be read to prohibit discrimination on the basis of sexual orientation or gender identity.?

• State and local laws where you live may also bar this discrimination. Housing discrimination against people with HIV/AIDS, or people perceived to have HIV/AIDS, is also illegal under the federal protections against disability discrimination.

• If you believe your rights have been violated, what you can do depends largely on where the discrimination took place, whether any state or local laws there might apply to your situation, and where things stand under the current administration. It helps immensely if you document every interaction and exchange that could show what happened.

Am I protected from discrimination in public accommodations, like shops and restaurants?

• There is no federal law that bans discrimination based on sexual orientation or gender identity in public accommodations, like restaurants, theaters and other businesses. 

Are LGBTQ students protected from discrimination in schools?

• Title IX of the Education Amendments of 1972 bans discrimination on the basis of sex by public schools. Thus,?Title IX should be interpreted to prohibit students from discrimination on the basis of sexual orientation or gender identity.?

• Many federal courts have held that Title IX requires public schools to respond to harassment based on appearance or behavior that doesn’t conform to gender stereotypes: boys who wear makeup, girls who wear pants, or students who are transgender or non-binary.

• The Supreme Court has taken up two cases presenting the questions whether it violates Title IX and the Constitution to bar transgender girls from participating in sports at school. While the law in this area is still evolving, a number of courts have found that Title IX and the Constitution protect transgender students’ right to access sex-separated programs and facilities like restrooms consistent with their gender identity. Some state and local laws also explicitly protect transgender students from discrimination in schools.

• Your constitutional right to privacy makes it illegal for your school to “out” you to anyone without your permission, even if you’re out to other people at school. The First Amendment protects your right to express yourself in public schools. That includes bringing a same-sex date to prom or any school event and talking about LGBTQ topics. Your right to be yourself in school includes the right to be transgender or non-binary, and to transition at school.

• If your rights are violated: Document everything. Take notes and keep copies of any emails with school administrators, relevant school forms, etc.

Can I still lawfully access gender affirming healthcare? 

• If you’re over age 19, there are no legal restrictions on accessing care. Some states, however, have made it more difficult to access care by restricting coverage under Medicaid and other government health insurance programs. For transgender adolescents under age 19, many states have made it impermissible to access this care within the state, either by criminalizing or otherwise banning the care.