Tuesday, November 15, 2016

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.

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