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Although the US Supreme Court has held that the federal government cannot discriminate against gay and lesbian couples legally married and living in a state that recognizes that marriage, lesbian, gay, bisexual, and transgender (LGBT) couples living in Texas are not legally recognized as spouses even if they were married in a marriage equality state or country.
Here is a run-down on Texas law affecting the LGBTQ community:
1 Recognition of Same-Sex Relationships: On November 8, 2005, Texas voters approved a proposition that amended the state constitution to define marriage as consisting “only of the union of one man and one woman” and prohibiting the state or any political subdivision of the state from creating or recognizing “any legal status identical or similar to marriage.”[n 8] The Save Texas Marriage political action committee, which opposed the amendment, argued before the vote that the poorly drafted amendment would ban all forms of marriage, a view the Texas attorney general rejected when the language was considered by the Texas senate. Kelly Shackleford, the president of the Free Market Foundation and a supporter of the amendment, said, “The words clearly recognize marriage in Texas as between a man and a woman….” and do not ban marriage in general.
During the legislature’s 2013 regular session, House Joint Resolution 77 by Representative Rafael Anchia, House Joint Resolution 78 by Representative Garnet Coleman, and Senate Joint Resolution 29 by Senator José R. Rodríguez would have repealed the constitutional definition of marriage; however, all these resolutions died in their respective committees.
The constitutionality of refusing to recognize a lawful marriage performed in another state remains in dispute. Generally, the Full Faith and Credit Clause found in Article IV, Section 1 of the U. S. Constitution would prohibit a state from doing this, but some discretion has also been given to states in certain matters. The clause also gives Congress the power to “prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”
There are two same-sex divorce cases where couples married in Massachusetts filed, and were denied a divorce, pending before the Texas Supreme Court. Oral arguments were heard on November 5, 2013.
2 Adoption Law: In Texas, any adult may adopt a child without regard to the adult’s sexual orientation or gender identity. Additionally, lesbian couples can get access to IVF and assisted insemination treatment.
Although same-sex second-parent adoption is legal in Texas, a court may not issue a supplemental birth certificate for a child adopted by two men or two women.n The primary purpose of the certificate is to prove the parent / child relationship with outside entities, such as schools, insurance companies, and passport offices.
3 Anti-Discrimination Law:Texas state law does not protect employees from discrimination based on their sexual orientation or gender identity, nor does it protect persons from housing or public accommodations discrimination based on their sexual orientation or gender identity or expression. The following Texas municipalities have ordinances prohibiting discrimination on the basis of sexual orientation or gender identity: Austin, Brownsville, Houston, Dallas, Dallas County, Fort Worth, and El Paso, San Antonio, and Walker County. The cities of Grand Prairie and Lubbock have ordinances prohibiting discrimination on the basis of sexual orientation only.
On May 11, 2001, Governor Rick Perry signed House Bill 587,popularly but unofficially known as the James Byrd, Jr. Hate Crimes Act, which strengthened penalties for certain crimes motivated by a victim’s race, color, disability, religion, national origin or ancestry, age, gender, or sexual preference. This legislation did not cover gender identity.
4 Sodomy Law: Until the U. S. Supreme Court in 2003 declared the applicable law unconstitutional in Lawrence v. Texas, certain sexual acts between persons of the same sex were a criminal offense. Termed “deviate sexual intercourse”, the offense was a Class C misdemeanor, punishable by a fine not to exceed $500. Despite the U. S. Supreme Court ruling, the statute has not been removed from the Texas Penal Code.
5Gender Identity: In 2009, the Texas legislature authorized a court order relating to a person’s sex change to be acceptable proof of identity for a marriage license. For geographical areas under the jurisdiction of the Texas Court of Appeals in San Antonio, the 1999 case Littleton v. Prange defined that, for purposes of determining the validity of a marriage, a person’s sex is determined at birth and is not changed by surgery or drug therapy. This ruling allowed a person born male who transitioned to female to marry a woman in that court’s jurisdiction.
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