Last edited: January 04, 2005

AR 20. Calling for the State of Texas to Repeal the Homosexual Conduct Law (Section 21.06)

Passed by the assembly January 14, 2002, 33-1
University of Texas - Austin

WHEREAS: The Texas sodomy statute has been in effect in some form since 1860;

WHEREAS: In 1974 acts of anal and oral sex ('deviate sexual intercourse') were decriminalized for opposite sex ('heterosexual') partners but remain illegal for same sex ('homosexual') partners, constituting gender-based discrimination which is unconstitutional under the Texas Equal Rights Amendment and the 14th Amendment of the United States Constitution;

WHEREAS: Texas is one of only 4 states in the United States (including Kansas, Missouri, and Oklahoma) where sodomy statutes apply to homosexual acts and not to heterosexual acts;

WHEREAS: 35 U.S. states and the District of Columbia have repealed their sodomy laws altogether;

WHEREAS: The 'Homosexual Conduct' law (Statute 21.06) was struck down by U.S. District Judge Jerry Buchmeyer in 1979 and later reinstated on appeal by the 5th U.S. Circuit Court of Appeals the U.S. Supreme Court subsequently refused to hear an appeal on the case;

WHEREAS: The Texas Third Court of Appeals voted 3-0 to strike down the law in 1992, but the law remained after the Texas Supreme Court refused to hear an appeal in 1994;

WHEREAS: On September 17, 1998 John Lawrence and Tyron Garner were arrested in their home for consensual sex, jailed for 24 hours, convicted of a Class C Misdemeanor and fined; in June 2000 a three-judge panel on the 14th Court of Appeals (Houston) overturned the verdict and struck down the law in that district, but the full appellate court overturned that decision in March 2001;

WHEREAS: In April 2002 the Texas Court of Criminal Appeals refused to hear the appeal of the case of Lawrence and Garner v. Texas despite a 1998 ruling by the Texas Supreme Court that the Court of Criminal Appeals has jurisdiction over cases involving Section 21.06;

WHEREAS: The appeal of Lawrence and Garner v. Texas was granted certiorari by the U.S. Supreme Court in December 2002;

WHEREAS: Every bill filed in attempt to repeal Section 21.06 has died in legislative committee, House or Senate due to opposition based on 'moral' grounds;

WHEREAS: Prohibiting private, consensual homosexual behavior and not prohibiting private heterosexual behavior is used as justification to deny gay, lesbian, bisexual and transgender individuals equal access to housing, adoption, employment, health care, and education, including housing and health care benefits at the University of Texas at Austin;

WHEREAS: Section 21.06 has been used to block a nondiscrimination policy in Houston, screen applications for jobs in Dallas, and remove a child from his foster parents in Garland;

WHEREAS: The 'Homosexual Conduct' Law violates the Equal Protection Clause of the 14th Amendment of the United States Constitution by granting a particular class of individuals the right to engage in certain activity while denying other individuals that same right;

WHEREAS: The 1974 amendments to Section 21.06 included the removal of a revision detailing criminal penalties for bestiality, making a sex act with an animal legal in the state of Texas; a sex act with one's life partner remains illegal and punishable by a fine up to $500;

WHEREAS: The Texas prison system refuses to issue condoms and dental dams to inmates who request them in an effort to discourage sex acts that are currently illegal (be they consensual or not), thus contributing to the spread of HIV and other sexually transmitted diseases among the largest prison population in the United States (146,000 inmates);

WHEREAS: From 1991 to 2001 AIDS was the number one cause of death among Texas inmates, followed by cancer, heart failure, lethal injection and suicide;

WHEREAS: The HIV/AIDS epidemic in Texas prisons adversely affects the University of Texas System by placing a financial burden on the Medical Branch in Galveston (UTMB) that treats roughly 80% of Texas prisoners;

WHEREAS: A study by the UTMB found that the prison system is releasing Texans who often have a drug-resistant form of HIV;

WHEREAS: State law mandates that sexual education programs for minors must state that homosexual conduct is "'not an acceptable lifestyle and is a criminal offense under Section 21.06, Penal Code'"; state-funded sexual education programs can not legally teach safe sex practices to adults or minors who might engage in sex acts with members of the same sex, thus increasing the chance of unsafe sex in certain communities and ultimately leading to increased health care costs at the expense of the taxpayer;

WHEREAS: Students, faculty and staff at UT-Austin have repeatedly expressed concern that Section 21.06 criminalizes them without arrest or conviction and tests their day-to-day relationship with UT officials, the Austin Police Department, and the UT Police Department;

THEREFORE BE IT RESOLVED: The student body of the University of Texas at Austin recommends that the Texas legislature repeal Section 21.06 of the state Penal Code on grounds that the law is unconstitutional and discriminatory;

THEREFORE BE IT FURTHER RESOLVED: The student body of the University of Texas at Austin denounces the use of Section 21.06 as means of discriminating against Texans in any aspect of life, including but not limited to housing, health care, public education, sex education, employment, court proceedings, and police or prison policy;

THEREFORE BE IT FURTHER RESOLVED: The University of Texas at Austin recommends that the UT Medical Branch in Galveston not deny condoms and dental dams to inmates who request them, and instruct inmates in their proper use;

THEREFORE BE IT FURTHER RESOLVED: The student body of the University of Texas at Austin urges UT-Austin administration, faculty and staff to continue to refrain from using Section 21.06 to discriminate against students and other faculty and staff who have not been arrested and convicted under said law.

Authored by: Bobby Apperson (GLBTA Director)

Sponsored by: Jordan Buckley (Two Year at Large)
Ben Durham (Liberal Arts)
Paul Navratil (Graduate)
Jillian Bissar (Social Work)
Chris Vaca (Two Year at Large)
Sheima Mojtahedi (Engineering)

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