From bathroom bills to trans health care, how Texas lawmakers shifted LGBTQ+ focus since 2015

AUSTIN (KXAN) — “There was this escalation in 2021 that we had never seen,” Ricardo Martinez said. “But I don’t think any of us could have predicted that we would be ending (the 2023 legislative) regular session with 140 bills.”

Martinez is CEO of Equality Texas, a non-profit that describes itself as Texas’ “largest nonpartisan statewide political advocacy organization working for the elimination of discrimination targeting the LGBTQ+ community.”

He’s talking about the number of bills Texas lawmakers filed that would implement bans or restrictions related to the LGBTQ+ community, from drag performances to transgender health care.

The number of bills has surged over the past several legislative sessions, according to data that Equality Texas collects. We’re using its data because legislation that impacts the LGBTQ+ community is not readily tracked by the government or by lawmakers. Instead, advocacy groups, such as Equality Texas, monitor these issues regularly and compile the data themselves.

The nonprofit’s numbers are based directly on an analysis of bills from Texas Legislature Online, the online portal for state government in Texas.

“The number of issues that [lawmakers] were focused on, I think, narrowed, and we were probably, for the first time, kind of front and center.”

Ricardo Martinez, CEO/Equality Texas

The Human Rights Campaign, a similar advocacy group that operates nationwide, reports the increase isn’t isolated to Texas.

A report from the group in June found more than 525 bills that “attack the LGBTQ+ community” had been filed across the country in the first half of the year, more than quadruple the number in 2015. The increase prompted the organization to issue a “National State of Emergency” for LGBTQ+ Americans.

“This is absolutely a moment of crisis,” said Cathryn Oakley, HRC’s senior director. “We need people to get off the sidelines. We need not only the LGBTQ community, but our allies, to understand the moment that we are in, how scary this is and that it is time to step up and fight back.”

The increase in bills is especially prevalent in the Lone Star State. HRC reports one-fifth of all “anti-LGBTQ+” legislation filed in the country through June this year was filed in Texas. The HRC defines anti-LGBTQ+ legislation as bills that aim to restrict the lives of those in the community, and their families.

In 2015, Equality Texas recorded 12 such bills. That “escalated,” to use Martinez’s term, to 76 in the 2021 session, before almost doubling to 141 this year by the end of the second special session.

A shifting focus from session to session

Martinez’s team not only tracks the number of bills but also breaks them down into categories based on each piece of legislation’s main intent. The chart above shows the number of bills filed in each category over the past several legislative sessions.

The data show a shifting narrative. The focus one session may not be the focus the next session. For example, bathroom bills, which require people to use bathrooms that match their sex assigned at birth, were a hot topic at the Capitol in 2017, but not a single bathroom bill-type piece of legislation has been filed since.

Similarly, prior to 2023, there had not been a single bill focused on “education censorship,” as Equality Texas describes it, such as removing books that reference LGBTQ+ people from school libraries. But this year, 67 bills fell into that category.

“There is this formula that has been used time and time again, decade after decade, with recycled talking points associated with it,” Martinez said. “It is this thing about our opposition, anti-LGBTQ extremists, finding or latching onto parts of our lives that they don’t understand, like drag for instance, and that most Americans or most Texans wouldn’t understand. And then they are filling that knowledge void, that knowledge gap, with disinformation and misinformation in the hopes that, in turn, it outrages people and it gets folks to express this collective outrage, so that they can use that collective outrage as an excuse to legislate against us.”

Marriage bills

When Texas lawmakers gaveled out of the 84th Legislative Session on June 1, 2015, the Supreme Court had not yet handed down its ruling in Obergefell v. Hodges, the case that would legalize same-sex marriage nationwide. The historic ruling came a few weeks later, on June 26.

Ahead of that ruling, state lawmakers filed a handful of bills related to same-sex marriage. Texas law had limited marriage to between “a man and a woman” since House Bill 103 was passed in 1973. But lawmakers proposed further restrictions.

House Bill 4105 would have barred state or local funds from being used to issue same-sex marriage licenses. “The ability to define and regulate marriage is a matter of state sovereignty with each state reversing the power to establish marriage laws that reflect the values of their citizens,” the bill’s author, Rep. Cecil Bell, R-Magnolia, said while laying out the bill in a committee hearing.

Bell referenced a statewide referendum in 2005, 10 years prior, to demonstrate the “values” of Texans. Voters were asked to consider an amendment to the state constitution to say, “Marriage in this state shall consist only of the union of one man and one woman.” The amendment was overwhelmingly passed, by 76.25% of voters, but turnout was less than 20%.

A Texas Politics Project poll of 1,000 registered voters in April 2023 shows a higher proportion of support for same-sex marriage in Texas, although it’s still split, with 44% in support and 42% opposed.

HB 4105 passed out of a House committee but died on the House floor.

House Bill 623 — known as the Preservation of Sovereignty and Marriage Act — went a step further, seeking to prevent government employees from recognizing, granting or enforcing same-sex marriage licenses. If an employee were to violate the law, “the employee may not continue to receive a salary, pension or other employee benefit at the expense of the taxpayers.”

The bill failed to make it out of a House committee.

Lawmakers did pass Senate Bill 2065, known as the Pastor Protection Act. The law allows clergy members to refuse performing same-sex marriages that violate their beliefs.

“Freedom of religion is the most sacred of our rights and our freedom to worship is secured by the Constitution,” Gov. Greg Abbott said at the time of the bill signing. “Religious leaders in the state of Texas must be absolutely secure in the knowledge that religious freedom is beyond the reach of government or coercion by the courts.”

The bill received bipartisan support in the legislature, as Democrats saw it as a way to defend churches that do conduct same-sex marriages.

The number of “marriage refusal bills,” as Equality Texas calls them, has dwindled in recent sessions. The group hasn’t tracked a single bill in this category since 2019. But Martinez said he is worried Republicans are “playing the long game” — focusing on other issues first before returning to marriage equality later.

“I remember being in the hallway when a legislator asked another legislator, ‘Hey, is your ultimate goal to go after marriage equality?'” Martinez said. “And this anti-LGBTQ lawmaker paused, looked at the other lawmaker who had asked, and said, ‘Eventually, yes.'”

Bathroom bills

Bathroom bills were a huge point of contention in the 85th Legislative Session in 2017. The premise behind this type of bill is that people must use the public restroom that matches the sex they were assigned at birth. This means transgender people must use a restroom that doesn’t match their gender identity.

Senate Bill 6 was the main bathroom bill-type legislation and would have affected locker rooms, changing rooms and shower rooms as well as bathrooms. Author Rep. Lois Kolkhorst, R-Brenham, said it was about safety, particularly in schools.

“We must look at, for all people, the safety, privacy and dignity of our students and give schools clear guidance in this matter,” Kolkhorst said when presenting her bill to a Senate committee.

But the measure was met with significant opposition, particularly from the business community, who feared such a law would put Texas at an economic disadvantage compared to other states.

Dallas Mavericks owner Mark Cuban echoed some of those concerns in a public hearing.

“It’s just like, ‘Why would I want to deal with that?'” Cuban asked. “If you get to a good company that’s large enough, there’s going to be somebody who is transgender as an example of who is really good — really, really, really good and the company depends on that person.”

Lawmakers failed to pass the bill in regular session, prompting Gov. Abbott to include the item on his agenda for a special session, citing the need to “establish a single statewide rule protecting the privacy of women and children.”

But again, the bill died. Senate Bill 3, the special session version, passed the Senate but failed to pass the House. Not a single bathroom bill has been filed by a state lawmaker since.

“In 2017, you saw that they had a lot of pushback here in Texas as a result of a bathroom bill, and so in 2019, you see them regroup, because that kind of blew up in their face to a certain degree,” Martinez said. “And so then, you see them start trying something new and latch onto something very specific, which is anti-trans legislation.”

Transgender sports and health care bans

In the past couple legislative sessions, Equality Texas has documented an increase in the number of bills specifically addressing the transgender community.

In 2021 and 2023 combined, lawmakers filed 56 bills focused on banning gender-affirming care in the state, as well as 29 bills restricting which teams transgender students can compete on. That compares to just one bill filed in the three sessions prior to 2021.

Martinez said as the transgender community has come more into the public light in recent years, a campaign of disinformation has taken hold.

“Taking things about our community, taking people that folks maybe don’t have familiarity with, don’t have an understanding with, and filling that void with disinformation, in hopes of creating outrage and hysteria,” Martinez said.

Republicans who supported the bills said they were about fairness and safety. In 2021, Senate Bill 29 would have restricted student participation in University Interscholastic League competitions to those that align with the sex “as determined at the student’s birth and correctly stated on the student’s official birth certificate.”

“Many students, parents, coaches and school administrators have raised concerns for the safety of female athletes that are required to compete against biological males,” Sen. Charles Perry, R-Lubbock, said in a Senate committee hearing while laying out his bill. “Additionally, biologically-born males often have significant physical advantage over their female opponents, and the inclusion of biological males in female sports may deny female athletes the recognition of their hard work.”

Democrats pushed back on that argument, claiming the bill would harm transgender students rather than helping anyone.

“Every witness during this hearing, including the bill author, could not name a single documented case of a trans athlete causing a problem on a sports team in Texas — not a single one,” Rep. James Talarico, D-Austin, said in a House committee hearing on the bill. “This is a manufactured problem.”

The bill passed the Senate, but not the House. Subsequent bills were introduced in special sessions, before House Bill 25 was finally passed in the third special session. Lawmakers followed that up in the next legislative session, earlier this year, with Senate Bill 15, which expands the law to cover collegiate-level athletes.

Meanwhile, bills to limit gender-affirming care, such as hormone therapy, puberty blockers and gender-reassignment surgery, have been gaining steam over the past couple of sessions, particularly when it comes to minors.

Several bills were filed in 2021, including Senate Bill 1646, which would have classified puberty suppression drugs, cross-sex hormones and gender reassignment surgery as child abuse. That bill passed the Senate, but not the House.

Earlier this year, Senate Bill 14 had more success. While it didn’t include the classification of child abuse, it did ban medical services “that are intended to transition a child’s biological sex as determined by the child’s sex organs, chromosomes and endogenous profiles.”

The House Republican Caucus called it a “common-sense prohibition on medically unnecessary, irreversible gender modification therapies and medical producers to alter a child’s gender before they are of legal adult age.”

Democrats, on the other hand, called the bill a “tragedy” in a press release, saying, “A decade of research shows (gender-affirming care) reduces depression, suicidality and other devastating consequences of trans preteens and teens being forced to undergo puberty in the sex they were assigned at birth.”

Gov. Abbott signed the bill into law in June.

A new focus in 2023

This year, Texas lawmakers filed two types of bills that had not been seen in the past several legislative cycles: “education censorship,” as categorized by Equality Texas, and bans on drag performances.

Not a single bill was filed between 2015 and 2021 aimed at restricting discussion of LGBTQ+ topics in schools. This year alone, almost 70 bills were filed. Some were successful, like House Bill 900, which bans “sexually explicit material” in school libraries, and Senate Bill 17, which abolishes Diversity, Equity and Inclusion offices and programs at public universities. Both of those bills were signed into law.

“The DEI legislation was not intended to be harmful or partisan,” said Rep. Carl Tepper, R-Lubbock, who authored a House companion bill to SB 17. “It is intended to refocus the university systems on higher education and free thought and free speech. The universities are no place for partisan indoctrination or ideological purity.”

But Martinez said these new kinds of laws put Texas children at a disadvantage when it comes to preparing them for the real world.

“I believe wholeheartedly that understanding the richness in the differences that people have and how it contributes to the richness of our community, both in the workplace and outside of it, really helps us have the ability to innovate,” Martinez said. “If you are an LGBTQ person and you can’t be fully yourself at work and you have someone who has no familiarity with you or how to talk about you, connection cannot be established, vulnerability cannot be practiced and innovation will not happen.”

Other bills, like House Bill 631, which would have banned classroom instruction about sexual orientation and gender identity through 5th grade — or the similar House Bill 1155 which would have banned instruction through 8th grade — made no headway.

Equality Texas tracked another new type of bill this year: those aimed at banning drag performances in the state. Senate Bill 12 was successful at banning “sexually oriented performances” on the “premises of a commercial enterprise,” although direct mentions of “drag” were removed before it passed.

The new law is facing litigation after taking effect Sept. 1, and a federal judge issued a permanent injunction on Sept. 26, calling SB 12 “an unconstitutional restriction on speech.” Bill author Sen. Bryan Hughes, R-Mineola, had previously said his intention was to protect children.

“Surely we can agree that children should be protected from sexually explicit performances,” Hughes said. “Senate Bill 12 provides that protection, and I am confident that this common sense law will be upheld.”

Still, Martinez said the bill was written in a “very manipulative and cunning way,” following the same formula of attacking something that a lot of people don’t fully understand.

“Drag is something that, until recently, wasn’t mainstream. It was this act of defiance,” Martinez said. “And now that it’s had some notoriety, now that people have awareness of it, it can be sensationalized because there’s still so many people that don’t know much about it.”

Focus on the future

Each session, there are several bills filed with the intention of expanding LGBTQ+ equality in Texas, from banning conversion therapy to prohibiting discrimination on the basis of sexual orientation and gender identity. Equality Texas tracked more than 140 “pro-LGBTQ bills” in 2023, by the end of the second special session. None of them passed.

“What that signals to me, and what this should signal to other Texans, is that there are lawmakers in that building who actually want to do a tremendous amount of good on behalf of our community,” Martinez said.

As the number of bills escalates from session to session, Martinez thinks things will eventually hit a breaking point as more people recognize the “coordinated effort to target” the LGBTQ+ community. In the meantime, he said Equality Texas won’t stop fighting until LGBTQ+ Texans are treated equally under state law.

“I want to remind all LGBTQ young people out there who are listening or are acutely aware of what’s happening all around you, there are thousands of people across this state, millions of people across this country, who fully support you, who fully see you, who fully believe you in your claiming of your own identity,” Martinez said. “And that’s not going to stop, and neither will we. We’re going to keep fighting. Always.”

Creative Producer Eric Henrikson, Director of Investigations & Innovation Josh Hinkle, Lead Editor Eric Lefenfeld Digital Executive Producer Andrew Schnitker, Digital Special Projects Developer Robert Sims and Digital Director Kate Winkle contributed to this report.

 [#item_full_content]