LGBTQ in the State of Texas: Rights and Protections

By Trent Hale*

Sarah Goodfriend and Suzanne Bryant quickly became the focus of news stories across the nation last month as they are, as of today, the first and only same sex couple to be issued a marriage license by the State of Texas. On February 19th, the couple and their attorney quickly seized a window of opportunity for the couple to be married in Travis County after Judge Guy Herman of Travis County declared Texas’ ban on same sex marriage unconstitutional. Shortly after being issued the license, Texas Attorney General, Ken Paxton, was granted a stay from the Texas Supreme Court ordering the halt of any further same sex marriages in Travis County.

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Sarah Goodfriend and Suzanne Bryant holding up their Texas Marriage License from Travis County. Photo from AustinChronicle.com

In addition to stories such as Goodfriend and Bryant’s legal victory in Texas, anticipation has been mounting as the Supreme Court of the United States has alluded that it will deliver a ruling as to whether or not states can constitutionally uphold their bans on same-sex marriage. Currently, same-sex marriage is legal in 36 states and the District of Columbia, and LGBTQ rights activists are hoping that the Supreme Court’s ruling (expected to be returned in June) will effectively make same-sex marriage legal throughout the nation.

Even with the rapid legal activity surrounding same-sex marriage on both the state and federal level, marriage is not the only legal issue that impacts the LGBTQ community. Here at Student Legal & Mediation Services, we have a commitment to serve all of our SHSU students, and to provide quality legal education and resources to help students make informed legal choices. For our LGBTQ students in the State of Texas, there are several areas of daily life that require special consideration and an understanding and knowledge of how the law may protect them or may not protect them.

Partnership

Even with the current judicial activity in Texas, the State of Texas still does not recognize same-sex marriages or civil unions. One viable option to make one’s same-sex partnership legally binding in the State of Texas is through a Domestic Partnership Agreement. This form of agreement, while it does not give “family” status to the partnership, serves as a kind of contract between two people who are living together. A Domestic Partnership Agreement is helpful for outlining property and financial assets shared between two individuals and how those are to be managed within the contractual relationship.

Health Decisions

A matter of concern for many same-sex couples in Texas is what their legal rights are when one partner becomes incapacitated. If one partner becomes incapacitated, by default, the power to make decisions on behalf of the incapacitated individual falls to his/her relatives, and, of course, under Texas law, a same-sex partner would not be considered the family of the incapacitated partner. Even if a same-sex couple is legally married in another state, under Texas law the marriage would not be recognize as valid. If the incapacitated partner’s relatives are hostile towards the partnership, the family has the legal right to bar the partner from visitation or any voice in the decision making process for the incapacitated individual.

There are several ways that partners can ensure that, in the case of incapacitation, the other partner has legal right to visitation and decision-making. The first is a Designation of Agent or Hospital Visitation Directive that an individual can sign that gives advanced permission for his/her partner to have visitation rights. A Medical Power of Attorney also allows for an individual to specifically designate his or her partner as the agent who has the legal power to make medical decisions on behalf of the incapacitated individual. Lastly, a HIPPA release can be used by an individual to ensure that his/her partner has legal access to his/her medical records to further allow the partner’s participation in medical decisions in the case of incapacitation.

Financial Decisions

In a similar way, in the case that a partner becomes incapacitated or dies, there are legal measures that can be taken to ensure that the surviving partner has legal right to make decisions concerning financial assets or even funeral arrangements. A Will is a broad document that can make particular specifications of an individual’s desires and wishes, including his/her desire to honor or leave decisions and even property and assets to a partner.

Secondly, in the case of incapacitation a Power of Attorney can be signed to give a partner legal authority over the partner’s particular finances. A Power of Attorney can become effective immediately or upon incapacity.

Housing

As it stands, the current federal Fair Housing Act protects individuals from housing discrimination on the basis of national origin, sex, religion, disability, familial status, race, and color, but it does not specifically include sexual orientation or gender identity within this list. The United States Department of Housing and Urban Development has, however, explicitly stated its commitment to ensuring LGBTQ individuals protection form housing discrimination, and has pointed out that there are particular scenarios where the Fair Housing Act and HUD regulations may protect an LGBTQ person from housing discrimination. For example, if a transgender person is denied housing because of a perceived gender non-conformity, this action may be considered illegal discrimination based on sex. Another example given by the HUD is if an underwriter for a Fair Housing Act loan denies a loan request in which two male incomes are being factored in to the application’s credit worthiness because the underwriter assumes the two men are a gay couple; this action may violate HUD regulations that prohibit a lender from considering perceived or actual sexual orientation.

Lastly, there are several states and local governments that have created legislation and policy that specifically safeguard LGBTQ individuals from housing discrimination. Texas does not currently have such legislation in place.

Employment

In the State of Texas, LGBTQ individuals are not protected against workplace discrimination (in both the private and public sector) on the basis of sexual orientation or gender identity. Individual companies and employers, however, may have their own policies protecting LGBTQ employees from discrimination, and therefore it may be wise for LGBTQ individuals to research the non-discrimination policies of his/her employer or prospective employer. Additionally, the United States Equal Employment Opportunity Commission has interpreted Title VII of the federal code to extend protection against discrimination on the basis of gender identity and sexual orientation for employees of the federal government.

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The issues presented in this blog, by no means, fully cover the many legal issues that uniquely impact LGBTQ individuals. For LGBTQ individuals, as for all individuals, understanding one’s legal rights and protections (or lack thereof) is critically important. Here at Student Legal & Mediation Services, we want to ensure that all of our students have the information and legal education that they need to make informed decisions. If you have further questions on these issues, schedule an appointment with our attorney by visiting us in LSC 330, calling us at 936-294-1717, or visiting us online at www.shsu.edu/legalservice.

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