LegalMatch: Government

Texas Bill Would Forbid Preventing Discrimination Against the LGBT Community

With the new year coming up, politicians across the country are busily introducing bills with the hope to create new laws promoting their agendas and fulfilling their many campaign promises.  In Texas, Republican Senator Bob Hall has proposed S.B. 92—a bill barring any county, municipality, or other group from adopting laws or rules which protect any class not already protected by Texas law.

On it's face, the law could be interpreted as fairly innocuous—at least much as any law forbidding others from preventing discrimination could be innocuous.  However, in effect, it is crafted to target laws protecting the LGBT community from discrimination.   Texas does not treat LGBT persons as protected from discrimination, thus no city, county or other group would be allowed to do so if the law passed.  The law will be voted on, along with dozens of other bills, in Texas' first legislative session of next year—January 2017.  A two-thirds vote will turn the initiative into law.  It will be voted on alongside bills to abolish the death penalty in Texas and a bill to finally remove from the books the Texas law making it a crime to engage in homosexual conduct, found unconstitutional by the Supreme Court over a decade ago.

S.B. 92 is not the first law of its type.  Arkansas, North Carolina and Texas have all passed similar laws.  North Carolina did so just this year, convening an emergency session of their general assembly to overturn a Charlotte ordinance barring discrimination against LGBT persons.

Senator Bob Hall has framed the bill as an issue of religious freedom, arguing that everybody should be free to express and practice their religious beliefs at all times regardless of how that impacts others.  Critics have argued that, besides preemptively stripping rights from the LGBT community, the law removes autonomy from local government.  What's more, they point to the business lost in North Carolina after they passed their version of the bill.  Experts have estimated that the law could cost Texas as much as $8.5B and lose as many as 185,000 jobs.

While S.B 92 is a scary prospect for the many LGBT persons living in Texas, the level of protection provided to members of the LGBT community across the U.S. has changed drastically over recent years, mostly in the direction of increasing protection.  States and the federal government have both taken steps to change the treatment of LGBT persons under the law.

LGBT Protections Throughout the Nation

Currently, there are 22 states with laws forbidding discrimination based on sexual orientation, gender identity, or both.  However, at a federal level no appeals court has ever explicitly extended such protection under Title VII, the federal statute forbidding discrimination by and employer based on a protected class such as race or gender.

The Equal Employment Opportunity Commission, however, has been taking steps of its own on this front over the last several years.  The EEOC, a federal agency tasked with enforcing Title VII and other federal workplace discrimination laws, ruled in July of 2013 that the entire agency would be treating sexual orientation as a protected class when it comes to discrimination.  Since this ruling, the EEOC has been investigating claims of discrimination based on gender identity or sexual orientation.   They have filed two separate amicus briefs (a memorandum of arguments made by a non-party to a lawsuit) arguing that federal courts should treat sexual orientation as a protected class in Title VII discrimination lawsuits.  They have also brought two separate federal lawsuits alleging discrimination against homosexual employees on the basis of their sexual orientation.

The EEOC's argument in favor of protection based on sexual orientation is that gender, already a protected class under federal law, includes discrimination against someone for not conforming to traditional gender stereotypes or norms.  Thus, because sexual orientation and gender identity buck the trends of gender norms, discrimination based on these traits would violate federal law.   This argument doesn't go so far as to describe LGBT as its own protected class but, if federal courts pick up on the position, does provide substantially more protection based on sexual orientation and gender identity.

Changing of the Guard Changing LGBT Protections?

Texas' new bill raises concerns for the LGBT community in the state.  However, the truth is that this concern is mirrored across the nation as President-Elect Trump prepares to take office alongside a conservative majority in the house and senate.  The question is, how will this changing of the guard impact LGBT protections across the nation?

The EEOC is an independent agency. While it reports to Congress it has quite a bit of discretion in determining its own policies, agendas, and pursuing its own lawsuits.  What Congress, and Trump, do have the ability to do is substantially limit the funding the the EEOC receives.  This makes it very difficult for them to pursue costly lawsuits which will likely curtail a good portion of the EEOC's recent efforts in filing lawsuits in federal court.  This means that it will be more difficult to create case law precedent on the issue of LGBT discrimination.  This being said, historically when the EEOC sees its budget cut it focuses its remaining budget on particularly visible and high impact cases.  This could mean we may see one big LGBT discrimination lawsuit coming out of the EEOC.

When looking at the states, the last few years have been a story of drawing lines.  While many states have moved towards expanding LGBT protections, North Carolina and now Texas show a trend of more conservative states going the opposite direction by outright forbidding such protections.  Another consequence of the incoming new administration is new appointments to the Supreme Court.  After nearly a year of refusing to even consider any of President Obama's nominees, an even more conservative Congress will have the opportunity to appoint at least one Supreme Court Justice.  This will likely leave the Supreme Court more conservative leaning than it has been in nearly a decade.  This will almost certainly have an impact on the development of LGBT rights nationwide.  However, only time will tell if the country will go the way of S.B. 92 or instead choose to protect the LGBT people all around us.

Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney At Law

Abortion Clinics Are Challenging Texas’s New Burial or Cremation Requirement for Fetal Remains in Court

Since 1973 when the Supreme Court of the United States legalized abortions through its decision for Roe v. Wade, state government and reproductive rights groups have battled over every aspect of the abortion process from at what pregnancy stage a woman can get an abortion to all of the steps she needs to take before she can actually have the abortion. The latest battle in Texas over abortion rights is regarding what happens to the fetal remains once the abortion is complete.

In 2013, the Texas legislature effectively shut down a number of abortion clinics in the state when it enacted House Bill 2 into law, which required for all abortion clinics to obtain the privilege to admit patients to a hospital within 30 miles of the clinic and become ambulatory surgical centers. The forced closure of abortion clinics based on their inability to obtain admission privileges and/or lack of funds needed to convert into ambulatory surgical centers, which are essentially emergency rooms with operating rooms that are larger than the rooms typically found in abortion clinics, prompted a number of abortion clinics to sue Texas on the premises that the new burdens placed on abortion clinics did not have any practical health benefits for women who are seeking abortions and only unnecessarily hindered their ability to seek an abortion by limiting their access to clinics. Finally, in June 2016, the Supreme Court of the United States struck down the two aforementioned requirements as constituting an undue burden to a woman’s right to seek an abortion.

Texas Responds with Passing More Abortion Regulations

Shortly after the Supreme Court of the United States invalidated the two provisions of House Bill 2 that caused several abortion clinics to close, the governor of Texas proposed, and the Texas legislature later approved, a new administrative regulation that would require for all embryonic and fetal remains to be disposed of in the same manner as human remains, either buried or cremated, instead of disposed of as medical waste, which was how many abortion clinics got rid of the aftermath of abortion procedures. Prior to this new regulation, burial or cremation of fetal remains was only required for fetuses that were lost as a result of a miscarriage happening after a pregnant woman’s fifth month of pregnancy. Although the state government of Texas claims that the cost of burying or cremating fetal remains will likely be covered by service providers, such as hospitals and abortion clinics, there is no provision to prevent the cost from being placed on the woman who has the miscarriage or abortion. Also, since the new regulation applies to all embryonic and fetal tissue, the tissue cannot be sent to crime labs or pathology, thereby putting women’s health and safety at risk.

Due to these flaws with the aforementioned regulation, a handful of abortion clinics, including clinics that had filed the lawsuit over House Bill 2, decided to file a lawsuit to block this new regulation on behalf of themselves and their patients. The clinics assert that the regulation appears to provide no real benefits for females that would outweigh the apparent problems and burdens that the regulation could cause to women who are seeking an abortion in Texas. These burdens include forcing women to endure funeral rituals even when they do not believe that their embryonic or fetal remains are deserving of such rituals, blocking women from being able to use abnormal embryonic and fetal tissue to determine the cause of the abnormality and the likelihood of a successful future pregnancy, and sacrificing evidence in the form of pregnancy tissue that could have been used to convict the perpetrator of a sex crime in which the woman was the victim. The plaintiffs also pointed out that the cost of cremation or burial services exceeds the cost of special waste disposal, which, as previously mentioned, is how most fetal and embryonic tissue is disposed of. Since there is no provision preventing the cost of the burial or cremation from being placed on the woman seeking treatment, this change in disposal may make abortion cost-prohibitive for women in the state of Texas.

Can Texas Exert Control Over the Abortion Process?

While states are allowed to enact laws and rules to protect women’s health and regulate the process of administering and supervising abortions, the laws and rules cannot unduly burden a woman’s right to choose to have an abortion before the fetus is viable. A law or a regulation creates an undue burden if it causes of is intended to cause a woman to encounter substantial obstacles when seeking an abortion before viability. The additional financial obligation of cremation or burial is likely to be seen by the court as an undue burden because it may make abortion financially prohibitive for women whose insurance will not cover the cost. Furthermore, the emotional burden and the intrusion upon one’s religious freedom with regard to what a termination of a pregnancy means and how an aborted fetus should be viewed in relation to a dead human that woman would be subjected to by being forced to bury or cremate their embryonic or fetal remain could be unnecessary deterrents intended to prevent women from obtaining abortions. Since these burdens may be seen as having a serious enough deterring effect in prohibiting women from otherwise obtaining abortions, the new regulation requiring that fetal remains be cremated or buried may be invalid by the court.

Although the prevention of sending the fetal or embryonic remains to pathology or a crime lab is a serious side effect of the regulation, it is unlikely that the prevention of sending the remains to a crime lab or pathology would be a strong enough reason by itself for a woman to not have an abortion. Thus, the simple prevention of sending the remains to a crime lab or pathology will qualify as an undue burden to a woman’s ability to obtain an abortion in Texas. If the court does invalidate the new regulation for placing an undue burden on a woman’s ability to get an abortion in Texas, it is unlikely going to be for the inability to send the remains to a location where they can be further examined.

It should be noted that the federal district judge that is currently hearing the case has granted a temporary injunction preventing the regulation from going into effect when it was scheduled to. Granting a temporary injunction against a law is something that judges are able to do to prevent the law from being enforceable and causing irreparable harm while a trial to determine if the law is valid is ongoing. However, as implied by the name, a temporary injunction is only a temporary answer to the issue that is being tried in court, and the question of whether the new regulation is valid and should be enforced will likely not be determined until next month when the trial resumes after the holidays.

Just because a law was enacted by a state government does not mean that it is valid and should be enforced. Legislators are capable of mistakes, just like any other person. It is up to the citizens who are affected by a flawed law to bring the flaws to the legislators’ attention through either notifying their local legislators or challenging it in court. If you are being affected by a law that you believe is unfair or unjust, contact a government lawyer to challenge the law in court.

Authored by Kristen Johnson, LegalMatch Legal Writer