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Crime of ‘homosexual conduct’ still on the books in Texas

Image has not been found. URL: http://images.americanindependent.com/2010/08/MahurinLaw_Thumb1.jpgMore than seven years after the U.S. Supreme Court struck down a state law criminalizing “homosexual conduct,” the unconstitutional provision remains on the books.

“The law is unconstitutional. It needs to be deleted from the statute,” said Chuck Smith, deputy executive director of LGBT advocacy group Equality Texas.

After having little success in the past few legislative sessions, state Rep. Garnet Coleman (D-Houston) will again attempt to expunge the unconstitutional section of the Penal Code, as well as a section of the Health and Safety Code that states sexual education materials, developed by the Department of State Health and Human Services, should include information that “homosexuality is not a lifestyle acceptable to the general public and that homosexual conduct is a criminal offense” under the archaic law.

State Rep. Jessica Farrar (D-Houston), who joint authored the legislation with Coleman in 2009, has already filed House Bill 604 to correct the law.

When asked why the unconstitutional law has not been excised, Smith said, “That’s a good question. I believe it’s there to hold over people’s heads.”

In June 2009 in El Paso, security guards kicked a group of men out of a restaurant after two of the men kissed. (The men were being unruly, according to the guards.) The guards were backed by local police officers, one who allegedly cited the unconstitutional provision of the law against homosexual conduct. The City of El Paso had already passed an anti-discrimination law in 2003, the same year of the U.S. Supreme Court decision in Lawrence vs. Texas, which struck down the state law.

(Read the El Paso Times for coverage, here, here, here and here.)

In June 2010, the men filed a civil lawsuit against the city and security guards. The discrimination suit is currently in an El Paso county court, where the judge has issued a gag order preventing any of the parties from discussing the case. The men are being represented by Paso del Norte Civil Rights Project, the El Paso branch of the Texas Civil Rights Project.

Regarding the section of the Health and Safety Code that refers to the unconstitutional provision, at least one Texas school district still incorporates that language into its official policy. According to Edinburg CISD policy:

“Instruction shall not represent homosexuality as a normal or acceptable lifestyle. Homosexuality shall be discussed in conjunction with education about sexually transmitted diseases. Teachers shall provide information of a factual nature only, and shall not explicitly discuss homosexual practices. Students should be informed that homosexual acts are illegal in Texas and highly correlated with the transmission of AIDS. Students shall be directed to seek value-oriented information regarding homosexuality from their parents/ guardians.”

Texas Education Agency spokeswoman DeEtta Culberson said that section of the Health and Safety Code does not apply to TEA policies. The code instructs the Texas Department of State Health Services to create a “model public health education curriculum” and make it publicly available upon request. Control over sexual education in individual districts is held by local school health advisory councils, which can select the DSHS curriculum, curriculum from other entities such as Scott & White Healthcare, alter other curricula or write their own.

A staffer for Rep. Coleman said no Texas textbook publishers include the language against homosexual conduct in instructional materials.

In a comprehensive 2009 report on sexual education in the state, Texas Freedom Network noted districts’ references to that section of the Health and Safety Code.

TFN Deputy Director Ryan Valentine said only a very small number of districts’ included the reference in their policies, which individual teachers may or may not pay close attention to when preparing for classes, and that it doesn’t necessarily mean that students are actually taught that homosexual conduct is unacceptable and still illegal. Districts may not review their policies carefully and often enough to remove outdated language.

“That doesn’t change the fact it essentially has the force of policy,” he said, adding that having the policy on the books could give teachers cover if they wanted to criticize homosexuality as being wrong.

“I would think that if a teacher wanted to include discriminatory comments on gay and lesbian students or families, they could easily point to district policy, and say their actions are covered by the written policy currently in effect in their district,” Valentine said.

The State Board of Education is set to discuss sexual education curricula in 2012, but it does not have binding authority over statute, he said.

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