Friday, November 18, 2016

Konni Burton's SB 242 Will Kill Children

For the last year and a half people have been asking me if I think someone in Texas will file a bill like North Carolina's notorious HB 2 to override nondiscrimination ordinances and set up the potty police - and for the last year and half I've been telling them that yes, that bill will be filed (probably a couple of versions of it) and yes, we'll have to work hard to defeat it, but that's not the bill that scares me. The bill that scares me, and it will be filed by someone out of Fort Worth, is a bill to force schools to out kids to their parents. It will be hard to fight, because it will be shrouded in a veil of parent's right to know about their kids, and, if passed, it will lead to children's deaths.

The bill I fear most has been filed by Sen. Konni Burton (R-Fort Worth). As John Wright reports over at the New Civil Rights Project, SB 242 would require "general knowledge regarding the parent's child possessed by an employee of a school district" to be given to the parent, failure to deliver the information would result in the firing or suspension of the employee.

SB 242 radically expands an existing provision that provides parents access to their children's school records, and makes it apply to every interaction a school employee has with a child. An on-the-face reading of the bill would require a teacher to contact a parent if they became aware that a student had a zit, or a crush on a classmate, or really wanted a certain pair of sneakers. If not the teacher would be fired.

While the poor drafting and wide scope of the bill make it risible. Burton's sinister intent in filing SB 242 is chilling. In a press release Burton says she filed the bill in response to a policy adopted by Fort Worth ISD on how to sensitively and reasonably accommodate transgender students. Her stated intent in filing the legislation is to out queer youth.

And that will get kids killed.
Teachers are there to teach our kids, not spy on them. Burton's vision of an Orwellian school environment where every move is reported is nightmarish - but worse, it's deadly.

Burton is taking a "Legislative Survey" to learn what people think of her legislation, you can find it HERE. You can comment on her press release HERE, visit her Facebook HERE, or find her on Twitter HERE.

Wednesday, November 16, 2016

HB 331 Equalization of Romeo and Juliet and Consent Education

Rep. Mary González (D-Clint) on Monday refiled her Romeo and Juliet legislation with some updates not included in her previous versions of the bill.

It is a felony in Texas to engage in sexual contact with a person under the age of 17. However the law creates an “out” in situations where the contact was consensual, the parties involved are over the age of 14, the parties are within three years of each other’s age and are of the opposite sex - called the "Romeo and Juliet defense." This is a logical approach to the reality that adolescents sometimes make sexual decisions that adults may wish they hadn’t made, but that adolescents have been making since the beginning of time. Those decisions should be the concern of parents, not a matter for the police. This “out” does not exist for teen sweethearts who are dating someone of the same sex creating a risk that a teenager may be sent to prison and forced to register as a sex offender for becoming physical with their sweetheart.

A similar inequity in the law in Kansas was found unconstitutional in 2005.

HB 331 equalizes the defense, places in statute the existing practice of not reporting teen relationships that fall under the defense to the police, and requires the Texas Education Agency to make curriculum on consent available to school districts. The bill would not require the school districts to use the curriculum. The provisions clarifying the duty to report and creating consent curriculum have not been included in previous versions of the bill.

González has filed Romeo and Juliet equalization legislation every session since she was first elected in 2012. Rep. Garnet Coleman (D-Houston) filed it prior to that. González successfully navigated the bill out of the House Criminal Jurisprudence Committee in both 2013 and in 2015 when it passed committee unanimously. It received a vote on the House floor in 2015 but was defeated 51 to 79.

When the bill went up for a vote last session Rep. Ken Sheets (R-Dallas) amended it to include a provision that removed the availability of the Romeo and Juliet Defense if the minor was given alcohol or other drugs that made them unable to physically resist sexual assault. That amendment is redundant because mental impairment already precludes the ability to consent (a component of the defense) whether or not the alleged victim physically resists, but one wonders why the amendment, which González accepted on the floor, was not included in this new draft.

HB 331 will likely be referred to the House Criminal Jurisprudence Committee which will likely be half first-term members who didn't vote on this the first time around. So there's no guarantee it will pass committee the way it has the two previous sessions. But González is an extraordinary adept member and has a real talent for navigating her agenda through the process so I am very hopeful.

Tuesday, November 15, 2016

HB 258: Boycott North Carolina and Arkansas

Rep. Rafael Anchia (D-Dallas) is one of my favorite people. His office is consistently one of the strongest and most vocal advocates for equality in the Texas Capitol and he's further proved his commitment by filing HB 258 which would prohibit the State of Texas from doing business with companies based in states that have passed legislation overriding local non-discrimination ordinances or legislation that allows or requires discrimination against same-sex married couples.

By my count three states have passed laws that fit that description:
  • Arkansas 90R SB 202 - which attempted to override local non-discrimination ordinances but is now tied up in court.
  • Tennessee 107R SB 632 - which overrode local non-discrimination ordinances and defined gender in all laws as being the gender on a birth certificate.
  • North Carolina 2016(2) HB2 - which overrode local non-discrimination ordinances and required the use of restrooms based on Gender assigned at birth.
HB 258 only applies to state's where the law in question went into effect after June 26th, 2016 (the date of the Supreme Court's ruling in Obergerfell). So Tennessee would not be included because their bill went into effect in 2011, but Arkansas (whose bill went into effect on July 22, 2015) and North Carolina (March 23, 2016) would.

Ironically, on the same day Anchia filed his bill Sen. Hall filed his own versions of North Carolina's legislation. In the unlikely event both were to pass the State of Texas would be prohibited from doing business with itself.

It's been estimated that North Carolina's bill has cost the state more than "1750 jobs and more than $77 million of investments and visitor spending." Gov. Pat McCrory's defeat in his re-election bid last week has largely been credited to voter dissatisfaction with his defense of the bill.

HB 258 will likely be referred to the House Committee on State Affairs, along with most of the other LGBT-related bills (pro and con). I would be surprised if it received a hearing, but by merely filing the bill Anchia has contributed to the conversation about the negative fiscal impact of discriminatory laws.

HB 225: Employment Non-Discrimination

Rep. Eric Johnson (D-Dallas) refiled his inclusive employment non-discrimination bill on the first day of early filing. Identical legislation has been filed in the House every session since 2007 (78R HB 1136, 79R HB 1515, 80R HB 900, 81R HB 538, 82R HB 665, 83R HB 238 & HB 1146, 84 HB 672) and by Johnson for the last two sessions.

Under current law it is illegal in Texas to discriminate in employment based on a person’s race, religion, gender, national origin, age, or disability. It remains legal to discriminate based on a person’s sexual orientation or gender identity or expression. There is no federal law prohibiting employment discrimination against the LGBT community (although, according to  a poll by the Center for American Progress, 9 out of 10 American voters erroneously believe that federal law does provide LGBT people employment protections).

HB 238 would allow the Texas Workforce Commission's Civil Rights Division (TWC CRD) to investigate claims of employment discrimination based on sexual orientation or gender identity or expression in the same way that it investigates claims of discrimination based on the other protected attributes. The TWC CRD allows individuals who believe they have experienced prohibited employment discrimination to file a complaint in person in Austin, over the phone, or via notarized form. If the complaint warrants investigation the TWC CRD pursues it further. The Legislative Budget Board (an agency of the State of Texas) estimates that if employment discrimination based on sexual orientation or gender identity or expression was prohibited that the TWC CRD would need to investigate 474 credible cases a year.

There is a great deal of evidence that employment discrimination is pervasive and widespread in Texas:

  • Men in same-sex relationships in Texas make 9% less on average than their straight married counterparts according to information from the Census Bureau,
  • Households in Texas headed by two women make one average 11% less than households headed by a man and a woman according to information from the Census Bureau,
  • In a 2010 survey 26% of transgender Texans reported losing a job because of their gender identity or expression.
Prohibiting employment discrimination based on sexual orientation or gender identity or expression has overwhelming public support. In a poll conducted by Equality Texas,
  • 76% of registered voters in Texas said they support ending employment and housing discrimination based on sexual orientation,
  • 70% said they supported ending employment and housing discrimination for transgender citizens.
With the reality of employment discrimination clear, a mechanism already in place for investigating it and strong public support for addressing the issue why has the decade long effort to pass legislation thus far been fruitless? Because there is a disconnect between the people of the state of Texas and the 183 elected officials who create laws in Texas. If HB 225 is to become law we must bridge that disconnect, and the only way to do it is by contacting your members of the legislature and telling them that you expect their support for HB 225.

SB 165: Comprehensive Non-Discrimination

Sen. Jose Rodriguez (D-El Paso) refiled his comprehensive non-discrimination bill on the first day of early filing. The bill is identical to his SB 856 from last session and has already picked up 3 coauthors: John Whitmire (D-Houston),  Kirk Watson (D-Austin) and Sylvia Garcia (D-Houston), all of whom coauthored the same legislation last session.

SB 165 prohibits discrimination on the basis of sexual orientation and gender identity or expression in housing, employment, public accommodations and state employment and contracting. The companions to the housing sections and the employment sections have already been filed in the House by Rep. Diego Bernal (D-San Antonio) and Rep. Eric Johnson (D-Dallas), respectively as HB 192 and HB 225.

The public accommodation section would be an entirely new part of the code. It prohibits discrimination by a " business or other entity that offers to the general public food, shelter, recreation, or amusement, or any other goods, service, privilege, facility, or accommodation." An exception exists for religious organizations unless the activity engaged in by the religious organization is for profit. This is a standard exception that needs to be in the bill. Without it the law, if passed, would likely be struck down as violating the first amendment. The section also contains an exception for counseling and out-reach services that are designed to support people dealing with coming out, gender transition or the general stresses of living as a queer person in a straight world (so, for instance, a nonprofit that had a support group for gay men, or transgender women, or lesbians over 50 could not be sued for discriminating in the group membership).

The state contractor section would require the state to only do business with companies that have a nondiscrimination policy that's inclusive of sexual orientation and gender identity or expression.

The employment section would allow the Texas Workforce Commission's Civil Rights Division (TWC CRD) to investigate claims of employment discrimination based on sexual orientation or gender identity or expression in the same way that it investigates claims of discrimination based on the other protected attributes. The TWC CRD allows individuals who believe they have experienced prohibited employment discrimination to file a complaint in person in Austin, over the phone, or via notarized form. If the complaint warrants investigation the TWC CRD pursues it further. The Legislative Budget Board (an agency of the State of Texas) estimates that if employment discrimination based on sexual orientation or gender identity or expression was prohibited that the TWC CRD would need to investigate 474 credible cases a year.

Likewise the housing section doesn't create any new legal mechanisms but adds gender identity and expression and sexual orientation to the existing protections against housing discrimination on the basis of race, color, religion, sex, disability, familial status and national origin. SB 165 also removes existing language in the protections against housing discrimination based on "disability" that explicitly states that the protections do not apply to sexual orientation to a person who is "a transvestite."

So what chance does SB 165 have of passing? Slim to none. Lt. Gov Patrick has made it clear that permitting discrimination is a priority for him this session ( literally, he made a list of priorities and permitting discrimination is one of them) and frankly the votes aren't there. But this is only the second time a Texas lawmaker has filed comprehensive nondiscrimination legislation and these things take time. Progress, any progress, particularly in a session that's shaping up to be the most anti-LGBT in a decade, is success.

Monday, November 14, 2016

SB 89: Void the Federal Enforcement of the Freedom To Marry

Every once in awhile a bill comes along that's designed to do one horrible thing that winds up doing some other horrible thing. I suspect that's what's going on with Sen. Bob Hall's (R-Canton) SB 89.

The bill would allow the State of Texas to void any federal law that conflicts with the Texas Bill of Rights. I suspect that what Sen. Hall is getting at is Sec. 23 of the Texas Bill of Rights, the "Right to Bear Arms." This would be in keeping with his assertions that the federal government under Pres. Obama is out to take away everyone's guns (no telling how he feels about whether President-Elect Trump will attempt the same). I've reached out to his office for clarity on his motivations for this bill,

Regardless of his motivation, the affect of the bill (were it to pass (unlikely) and not be immediately struck down by the courts (even less likely)) would be to nullify the affect of the Supreme Court's ruling in Obergerfell, which made the freedom to marry the law of the land.

One of the truly nasty things about the passage of Texas' anti-marriage constitutional amendment in 2005 is that the amendment was put into the state bill of rights. That's right, right there in Article I, sec 32 of the constitution, between the rights of crime victims and the right to hunt is the rather torturous inclusion of a negative right: the right to not have the right to marry. SB 89 would elevate that amendment above the law of the land, allowing Texas to ignore the freedom to marry.

In legal terms this is called 'state nullification' and it's utter hokum thoroughly discredited in case law. For example, in Cooper v. Aaron the Supreme Court rejected an attempt by the State of Arkansas to nullify the court's decision in Brown v. the Board of Education (recognizing segregation as unconstitutional). State's simply can not ignore federal law whenever they want - which is exactly what Sen. Hall's bill is attempting to do.

In Cooper the court said

"Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison, 1 Cranch 137, 5 U. S. 177, that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3 "to support this Constitution." Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers'"
 Obergerfell, similarly, is a fourteenth amendment case. Sen. Hall is pulling at the threads of civil rights law in America. His bill threatens to unravel the advances of the last half century.

HB 92: Repeal of the crime of "Homosexual Conduct"

Rep. Joe Moody (D-El Paso) today filed HB 92 to repeal the crime of "homosexual conduct.

You may recall that in 2004 the Supreme Court of the United States declared the Texas law against "homosexual conduct" (which is Penal Code 21.06) unconstitutional in Lawrence v. Texas. The law, although now unenforceable, is still on the books. While it might seem a simple matter of housekeeping to remove it thus far most state lawmakers have seemed too afraid to do anything about it.

In 2009 Rep. Garnet Coleman (D-Houston) filed this exact bill (word for word) (HB 3028). It was sent to the Criminal Jurisprudence Committee which referred it to a sub committee. When a committee has a large number of bills to consider the chair may, at their discretion, appoint sub committees - which usually look at groups of bills on similar topics and then make recommendations to the whole committee.

In 2011 the bill similarly was filed by both Coleman and Rep. Jessica Farrar (D-Houston), was not sent to a subcommittee, but died in committee anyway. In 2013 both again filed the bill and again it died in committee, but Coleman's bill received a hearing.

In 2015 Moody, for the first time, filed a version of the bill - as did Coleman and Farrar. This is significant because Moody had served on Criminal jurisprudence longer than any other member that session. With Moody's support Coleman's bill was heard again and had some support in the committee. Unfortunately the hearing didn't occur until May of last session - much too deep into the session to have sufficient time to pass the legislature, even if the committee had passed the bill (indeed, it seems the hearing was designed specifically for bills the committee wanted to pass, but which were considered politically volatile as a marijuana legalization bill was heard in the same hearing).

The late scheduling of the hearing can be sat squarely at the feet of the committee chair, Rep. Abel Herrero (D-Corpus Christi). Chairs have almost complete discretion about when to schedule bills referred to their committees and the late scheduling of this bill is a black mark on Rep. Herrero's otherwise stellar record as chair.

Criminal Jurisprudence is an interesting committee. It's jurisdiction over criminal law is not particularly important to a lot of movers and shakers and most of what it considers is not particularly high profile. That's why it has one of the most volatile rosters in the House with almost the entire membership of the committee shifting every session. Last session only Herrero and Moody returned from the previous session. That means that the makeup of the committee next session is very likely to have mostly new members and that most of the new members are likely to be in their first term. Many of those membersmay not know that 21.06 is still on the books and may be shocked to learn that it is. Here's hoping that enough new eyes on the issue, and perhaps a stronger backbone on the part of the chair, may finally lead to 21.06's repeal.

First Pro-LGBT bill of the session filed: HB 192 - Housing Non-Discrimination

And we're off! The first pro-LGBT bill of the session was filed by Rep. Diego Bernal (D-San Antonio)' and it's HB 192. The bill would prohibit discrimination in housing on the basis of gender identity or expression and sexual orientation. HB 192 is identical to Rep. Bernal's HB 2860 filed last session and tracks the housing sections of Sen. Rodriguez's omnibus nondiscrimination bill from last session.

HB 192 doesn't create any new legal mechanisms but adds gender identity and expression and sexual orientation to the existing protections against housing discrimination on the basis of race, color, religion, sex, disability, familial status and national origin. The definitions in the bill are the standard ones that have been used in LGBT non-discirmination bills in Texas for the last decade:

"Gender identity or expression" means having or being perceived as having a gender-related identity, appearance, expression, or behavior, regardless of whether that identity, appearance, expression, or behavior is different from that commonly associated with the person's actual or perceived sex.
"Sexual orientation" means the actual or perceived status of a person with respect to the person's sexuality."
The bill also removes existing language in the protections against housing discrimination based on "disability" that explicitly states that the protections do not apply to sexual orientation to a person who is "a transvestite."

Last session the bill was referred to the House State Affairs Committee where it languished along with the employment and public accommodations non-discrimination bills.

It will be interesting to see how this bill is received given the recent national conversation preferring legislation that covers all three areas (employment, housing and public accommodation) and the growing tendency by some to perceive this kind of directed approach as "throwing people under the bus." It would be a real shame if Rep. Bernal, who was the driving force behind the passage of San Antonio's nondiscrimination ordinance, and who has a deep commitment to the transgender community, was painted with such a brush. I would encourage anyone who has any questions about this bill (or would just like to say thank you) to contact Rep. Bernal before jumping to conclusions. His e-mail is

It's the First Day of Early Filing

Today is the first day of early filing in the Texas Legislature. Lawmakers in both the House and Senate may begin filing the bills that will be discussed when the legislature convenes in January 10, 2017. So how does that work and what does it mean?

For the most part bills are numbered in the order they are filed. However House Bill 1 and Senate Bill 1 are reserved for the Appropriations Bill (the state's budget) and the first several bills in each chamber are reserved for the Speaker's priorities and the Lt. Governor's priorities, respectively. Last session it was the first 40 bills in the House, so the first bill filed on early filing day was HB 41, and the first 20 bills in the Senate, so the first bill filed was SB 21.

There's no real particular legislative advantage to filing on the first day. Once the session gets going and bills sent to committees they are typically referred in batches of a couple hundred. The House and Senate will send the few hundred bills filed today to committee in the first couple of days of referral and the dozen or so bills filed tomorrow will follow them the same day or the next. Since the chairs of committees have almost complete discretion about when to schedule bills for hearings, a bill filed today could easily be heard in committee after a bill filed tomorrow or three months from now - or not at all.

So why bother to traipse up to Austin to file a bill the first day?

The bills filed today aren't an indication of what's most likely to pass next session, but they are an indication of what will be the major topics of conversation. Today's bills represent the top priorities for lawmakers - and, since every media outlet that covers the lege will run a "what got filed on the first day of early filing" article they are more so the top priorities of the lawmakers who really know how to capture the media's attention.

We're likely to see several bills addressing school finance, for instance, but the school finance bills that really have grease under them won't be filed until after the committee reports from the committees that have spent the last 18 months studying the issue come in and their findings can be incorporated into bills - and those bills will likely get those extra-special, reserved early numbers.

We're likely to see a couple of marriage bills, both pro- and anti- filed (last session (the first to see both statutory and constitutional marriage bills filed in both chambers) the pro-marriage bills were all filed on the first day).

I also wouldn't be surprised to see a couple of potty police bills filed today. Lt. Gov. Patrick has made it a major policy position and some people will be rushing to curry favor by filing their versions (despite the fact that everyone who filed one last session lost their re-election bid). But again the ones filed today aren't likely to be the ones that eventually pass Patrick's Senate, as I suspect he's got one of those special "Lt. Governor's priorities" spots in the top 20 reserved and I bet he waits until a day the bill is all alone in the news cycle to have it filed.

So pay attention to what gets filed today because it's a good indication of what we're going to be spending the 140 days of session talking about - but don't get too attached to any of the specific bills filed today, they aren't likely to be the ones we're worried about in May.

Wednesday, November 9, 2016

Looking for Silver Linings

Well, it looks like we have a President Trump, and a Republican House and Senate, and will soon have a Republican Supreme Court.

Before you break out the hemlock or start booking your Canadian "vacation" here's some rays of light, particularly as we head into Texas' next legislative session:

  • In Texas House District 144 Mary Ann Perez trounced incumbent Gilbert Pe‎ña 60% to 40%. Pe‎ña was one of two members of the legislature who filed anti-trans "bathroom bills" last session. The other, Debbie Riddle, lost her primary. That means that every member of the lege who filed a bathroom bill last session lost their reelection. That's not going to keep a dozen bathroom bills from being filed next Monday (the first day of filing), but it does mean that no one "owns" the issue in the House and all of the various authors will have to coalesce around a single vision to proceed with a bill - which is an additional hurdle, and we need all the hurdles we can get.
  • In North Carolina Gov. Pat McCrory lost even though Trump won. There was always a risk that if McCrory lost and Clinton won the loss could be written off as being on Clinton's coattails. The way this played out there's no doubt that the unpopularity of NC's HB 2 (which overturned local nondiscrimination ordinances and instituted the state's potty police) was the major contributing factor to his loss. While the die-hard Texas politicians obsessed with other people's bathroom habits (like Lt. Gov. Patrick) won't be swayed by that, it will give their more level-headed colleagues pause.
  • Texas Dems picked up 3 House seats (technically 4). In addition to Perez, Victoria Neave beat incumbent Ken Sheets in HD #107 and Philip Cortez beat incumbent Rick Galindo in 117 (technically the victory by Democrat Tomas Uresti in HD 118 is a pick up as well, but incumbent John Lujan won the seat in a bizarre special election and has never served while the legislature was in session, so the victory doesn't change the session calculus). Three seats isn't much, but a lot of victories in the lege, particularly when you're playing defense, happen because of one person. So this counts as a silver lining.
  • The 2020 election will elect the state legislatures that decide redistricting. Those down ballot races will have the coattails of a Democratic presidential candidate running either against a polarizing incumbent or someone trying to escape his legacy. In 2008 Barack Obama's coattails almost flipped the Texas House and the 76 to 74 partisan divide they created was enough to unseat Speaker Craddick. Then the "Tea-Party wave" of 2010 swept out a third of those Democrats and the legislature that drew the lines for redistricting made sure they favored Republicans. There's a decade of progress at stake in the 2020 election and Clinton's defeat may have set up good conditions for a favorable outcome.