A lot has been made of the fact that this past state legislative session saw the filing of a historic number of bills impacting LGBTQ+ Texans. But a new investigation pulls the lens back quite a bit to assert that 2023 was just the latest effort in what’s been a half-century of criminalizing these communities.
Josh Hinkle, director of investigations at KXAN TV in Austin, joined the Standard to share more about the investigation’s findings.
This transcript has been edited lightly for clarity:
Texas Standard: Your team’s reporting centers in large part on a statute in Texas’ Penal Code. Tell us about it.
Josh Hinkle: Ever since 1860, Texas has had some sort of sodomy law. But in 1973, they actually changed the penal code to get rid of the sodomy law that really applied to everyone and just singled out homosexual conduct, essentially gay sex.
And this law has been on the books for 50 years, even though in 2003, a Texas case went before the U.S. Supreme Court and the court struck the law down as unconstitutional, so it could no longer be enforced after that. But Texas lawmakers have yet to repeal it from the penal code in the last 20 years.
So it still comes back up in conversations when you have testimony at the Legislature about some other bills that might be related to the LGBTQ+ community. It’s still used to discriminate. And we’ve also found that police are sometimes still misapplying it, even though it’s not supposed to be enforced in Texas.
You know, it’s not that unusual for laws to be on the books that are no longer relevant or enforced. But this one has been. And I the guess question is, why? You’ve explained why that would matter to LGBTQ+ communities. But why is it still on the books?
Well, I think that there just hasn’t been a very strong will to remove it from many members of the Legislature. You know, many of our legislative body are Republicans, and there has been a conservative effort to – sometimes the thought is, “keep it on the books.”
There are some conservative groups, namely Texas Values, who’s a faith and family organization that has testified numerous times, session after session, on bills that would have repealed this to try to keep it there, because essentially they want it to stay on the books.
» GET MORE NEWS FROM AROUND THE STATE: Sign up for Texas Standard’s weekly newsletters
In fact, I understand you’ve been sort of looking into Texas Values. What more do you know about this organization?
Since 2003, when the U.S. Supreme Court declared the law unconstitutional – for not just Texas, but several other states that had similar laws – this organization, which was really coming to fruition in around 2013, 2014, has testified or registered against bills that would have repealed this from the penal code more than any other person or entity in the history of any kind of bills to repeal it. I believe 17 times.
And that’s a lot when you consider how many times this bill has also come back up before the Legislature. We found, you know, nearly 50 times that the bill has really been introduced to repeal it off the books, and most of those have been since the Supreme Court struck it down.
Like the so-called trigger law that banned most abortions in Texas after the Supreme Court overturned Roe vs. Wade, I think a lot of folks have wondered if another Supreme Court decision could mean that at some point Texas’ homosexual conduct law could, in fact, be revived, go back into effect?
Yeah, I think that that’s the fear from many people who are supporters of the LGBTQ community. There has been discussion about whether Lawrence v. Texas, which was the Supreme Court case out of Houston, would be revisited at some point, like some of the other cases, you know, you alluded to earlier, because the law is still on the books.
If the Supreme Court decided to revisit that case and reversed course on it, then it would be retroactive. It would go right back into effect. And whereas many states have taken this law off their books, they would have to create a new law in those states. But Texas is one of three states in the nation that still has it on the books, and it would become retroactive and go right back into place.
