House panel hears bills to remove ‘homosexual conduct’ law, add trans hate crimes protections

Posted on 06 Apr 2011 at 8:39am

Daniel Williams

By DANIEL WILLIAMS | Legislative Queery

Four bills that would improve the lives of LGBT Texans were heard by the House Criminal Jurisprudence Committee on Tuesday. The Committee is responsible for making recommendations to the state House of Representatives on bills that effect the Texas Penal Code. The first step in that process is to hold a public hearing. Any member of the public may testify for, or against, a bill during the hearing.

The first bill, House Bill 1909 by Rep. Garnet Coleman, D-Houston, amends the state’s law against “indecency with a child” to provide LGBT teens with the same protections as straight teens. Currently, the law contains a provisions that allows consensual sexual contact between a person under the age of 17 and a person who is no more than three years older. Dubbed the “Romeo and Juliet” rule, the exception recognizes that teenagers engage in sexual behavior with their boyfriends/girlfriends and that prosecuting “heavy petting” by high school sweethearts serves no purpose.

However, there’s a catch! When the Romeo and Juliet rule was created in 1973, “homosexual conduct” was still an enforceable crime in Texas. The authors of the exception were very careful that it only apply to couples “of the opposite sex.” Coleman’s bill removes the opposite sex requirement to give “Juliet & Juliet” the same protections as their straight contemporaries. Dennis Coleman, executive director of Equality Texas, testified in favor of the bill. There was no opposition.

Next, the committee heard House Bill 2227, also by Coleman. Texas law allows prosecutors to seek tougher sentences for crimes committed due to the perpetrator’s bias against people with specific attributes, including “race, color, disability, religion, national origin or ancestry, age, gender, or sexual preference.” HB 2227 would add “gender identity and expression” to that list.

Coleman went to great lengths to educate the committee on the difference between “gays and lesbians” and “transgender people,” explaining that current hate crime law does not protect victims targeted due to their percieved gender non-conformity. “Transgender people have a one in 12 chance of being murdered in contrast to a one in 8,000 chance … for non-transgender people,” he further explained. “Crimes against transgender people tend to be under-reported because of how they are treated by state and local authorities.”

Dennis Coleman, of Equality Texas, testified that a 2010 survey found 67.3 percent of Texas voters said they support hate crime legislation protecting transgender people. Meghan Stabler, a Human Rights Campaign board member, highlighted the spate of recent high-profile crimes against trans-identified Texans, including the rape of a trans woman by on-duty San Antonio police officer Steve Nash and the violent murder of Houstonian Myra Ical. Stabler said that, as a transgender woman, she wanted to put a human face on the issue. No one testified against the bill.

Later, the committee heard House Bills 604 by Rep. Jessica Farrar, D-Houston, and 2156 by Coleman. The two identical bills would remove the crime of “homosexual conduct” from Texas Penal Code Sec. 22.06 as well as references to Sec. 22.06 in the Family Code. The U.S. Supreme Court declared the Texas “homosexual conduct” law unconstitutional in 2003. The law, though now unprosecutable, remains on the books.

“This is kind of simple,” said Garnet Coleman, “This should be simple.” He compared Sec. 22.06 to “restricted covenants” that once prevented African-Americans from owning homes in white neighborhoods. He reminded the committee that, even after such covenants were made illegal, it took the state Legislature decades to remove the laws that allowed them.

Dennis Coleman and Meghan Stabler both testified in favor of the bills, as did Charles Kanaak of the ACLU of Texas. Two representatives from the Texas Bar Association, Eduardo Juarez and Judge Charles Spain, attempted to provide the committee with legal reasons for supporting the legislation. Spain pointed out that last session the Legislature removed over 40 unconstitutional laws from the books. Juarez said the continued presence of Sec. 22.06 creates a liability for law enforcement agencies if they attempt to charge someone with “homosexual conduct.” No one testified against the bills.

Committee Member Jose Aliseda, R-Beeville, questioned why the bills remove provisions of the Family Code that require material on sexual health created by the Texas Department of Health and Human Services to teach that “homosexual conduct is not an acceptable lifestyle and homosexuality is illegal.” Aliseda asked if only the reference to illegality could be removed, and the statement that homosexuality is not an acceptable lifestyle kept.

Coleman responded that having language calling LGBT people unacceptable is “offensive to most people because that’s an orientation, not a lifestyle. Religion is the choice. Whether somebody is gay or transgender is not a choice,” but offered to compromise with Aliseda, and leave “Homosexual conduct is not an acceptable lifestyle” in the code. Coleman added that leaving the statement in was “just a temporary circumstance because all of our children and our grandchildren feel very differently about this than we do and in the final analysis these types of statements [calling homosexuality unacceptable] will be repealed.”

The committee did not vote on any of the four bills, leaving them “pending.”

UPDATE: Below is a press release from Rep. Coleman’s office on Tuesday’s hearings:

Equal Protection Under the Law

Today, I laid out legislation before the Committee on Criminal Jurisprudence that would remove unconstitutional language from statute.

A portion of Texas statute states, “homosexual conduct is not an acceptable lifestyle and is a criminal offense.” Besides being discriminatory, this statute is unconstitutional.

In 2003 the Supreme Court in Lawrence v. Texas ruled that the state couldn’t intrude on “the most private human conduct, sexual behavior, and in the most private of places, the home.” In the court’s decision, Justice Anthony Kennedy wrote that Texas wrongly sought “to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.”

Even so, this hurtful and unconstitutional language remains on our books.

My legislation – HB 2156 – would remove this unconstitutional provision from Texas statute. HB 2156 also removes the requirement that a state agency prepare educational materials stating that homosexual conduct is an unacceptable lifestyle and is a criminal offense.

Some of my colleagues have said that the time it will take to remove this language is not worth the outcome. I wholly disagree. To continue to have this language on our books, which our nation’s highest court has already declared unconstitutional, is embarrassing and hurtful. This must be changed.

The Fort Worth Star telegram wrote an editorial on the need to remove this language from Texas statute. You can read that editorial here.

Protecting Teenagers

I also laid out legislation today to protect GLBT teenagers. HB 1909 would extend the affirmative defense of age appropriate dating currently available to heterosexual couples to all young couples.

The age of consent in Texas is 17. A part of Texas statute known as “Romeo and Juliet” exceptions, added an affirmative defense to prosecution as an attempt to correct overly harsh penalties for consensual intimate relationships between minors, or between an adult and a minor no more than three years younger. However, the affirmative defense to prosecution applies only when the two people are of the opposite sex, making Texas the only state to create different penalties for GLBT teen relationships.

A gay teen in Texas may currently be forced to register as a sex offender for engaging in consensual intimate activity. In 2000, when Kansas had a law like Texas, an eighteen year old Kansas teen received a sentence thirteen times more severe than a straight teen would’ve received for having a consensual intimate relationship with another teen. The Kansas Supreme Court, in Limon v. Kansas, overturned the law ruling it violated the Equal Protection clause of the U.S. Constitution.

My legislation – House Bill 1909 – will treat all teens equally by striking the requirement that one must be of the opposite sex to be eligible for the affirmative defense.

Equal protection under the law is one of the most fundamental aspects of our system of government. All persons should be entitled to the same treatment before the law, regardless of who they are.

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