Texas advances bill allowing discrimination against LGBTQ kids and families

It’s the broadest “license to discriminate” legislation any state has ever considered.

Rep. James Frank (R) introducing HB 3859 to the State Affairs Committee back in March. CREDIT: Facebook/James Frank
Rep. James Frank (R) introducing HB 3859 to the State Affairs Committee back in March. CREDIT: Facebook/James Frank

Texas House lawmakers voted early Wednesday morning to approve a broad “license to discriminate” bill for child placement and protection agencies. Among other things, the bill would allow foster and adoption agencies to discriminate against same-sex families and allow agencies to subject LGBTQ children under their care to “religious education.”

The legislation passed by a 94–51 vote — which was mostly among party lines, except for three Democrats who supported the bill — after several hours of debate, many proposed amendments design to weaken the bill, and multiple procedural attempts to kill the bill.

Mirroring other “religious freedom” bills introduced across the country, HB 3859 stipulates that the government cannot take any “adverse action” against any “child welfare services” provider for acting in accordance with its “sincerely held religious beliefs.” Such actions include denying funding, canceling contracts, and declining licensure, for example.

Because the state does not offer nondiscrimination protections on the basis of sexual orientation, this would guarantee that adoption agencies can refuse to serve same-sex families — or any family with LGBTQ members — and continue to receive taxpayer funding from the state.

South Dakota passed a similar law earlier this year that allows state-funded adoption agencies to refuse to serve same-sex couples. Alabama followed suit with a watered-down bill that only applied to organizations that do not receive state funding.

But Texas’ bill is far more expansive than both of its predecessors because HB 3859 offers a broad definition of “child welfare services.” Whereas South Dakota and Alabama’s bills focused on child placement services, the Texas bill additionally includes many other social services, such as assisting abused or neglected children; counseling children or parents; providing foster homes, general residential operations, residential care, adoptive homes, group homes, or temporary group shelters for children; and providing family support services. This means the legislation could have severe consequences not only for same-sex couples who would be denied services, but also for LGBTQ children in the care of these organizations.

This is particularly troubling given the bill also protects providers that subject these children to “religious education, including through placing the children in a private or parochial school or otherwise providing a religious education in accordance with the laws of this state.” Given that many conservative religious belief systems reject LGBTQ identities, this bill essentially authorizes and encourages providers to subject LGBTQ children to potentially harmful psychological trauma.

The legislation could have far-reaching effects beyond discriminating against LGBTQ identities. The bill also notes that providers can’t be penalized for actions taken with regard to their opposition to providing or referring for “abortions, contraceptives, or drugs, devices, or services that are potentially abortion-inducing.”

HB 3859’s sponsor, Rep. James Frank (R), has repeatedly distorted the opposition to his legislation. Tuesday evening, he described it as a “defensive bill” because “it only allows you to decline services.”

According to Frank, about a quarter of the state’s providers are religiously affiliated.

During the floor debate, Rep. Donna Howard (D) grilled Frank on different forms of discrimination the bill could allow. For example, could an agency refuse family reunification services on the basis that the parents are not regular church attendees or because they’re divorced? Frank avoided entertaining the hypotheticals, claiming that the intent was more important than the text of the bill and that it wouldn’t implicate child placements.

Rep. Gina Hinojosa (D) introduced an amendment to keep the bill from allowing funding for discrimination, referencing Alabama’s new law. She pointed out that HB 3859 could be used to discriminate on the basis of religion, such as a Christian agency refusing to provide services to a Jewish family. Her efforts failed.

A report from KXAN notes that the “Bill of Rights” for youth in Texas Foster Care used to include a guarantee of “fair treatment” according to a variety of different identities, including sexual orientation and gender identity. Earlier this year, the state’s Department of Family and Protective Services removed “sexual orientation” and “gender identity” as the clause was shortened to simply, “I have the right to ‘be treated fairly.’”

The bill requires a final vote Wednesday before it can advance to the Senate. HB 3859 is only one of many anti-LGBTQ bills the Texas legislature is considering this session. Its attempts to legislate bathroom discrimination against transgender and other gender non-conforming people, however, appear to have stalled or died.