The legislature has again spurned an opportunity to end its ban on ‘homosexual conduct’ and 15 other states retain similar laws

The Texas legislature has ended another busy session, sending bills to the governor that would ban red-light traffic cameras, end regulation of the plumbing industry, make it easier to dine outdoors with a dog, carry brass knuckles, and possess a gun inside a rented apartment and a place of worship.

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But as usual, politicians did not manage to repeal a homophobic law that has been unenforceable since 2003, meaning that a ban on “homosexual conduct” remains part of the Texas penal code.

This states that it is a Class C misdemeanor offense, punishable with up to a $500 fine, if a person “engages in deviate sexual intercourse with another individual of the same sex”.

It is 16 years since the US supreme court struck down Texas’s anti-sodomy law. The case, Lawrence v Texas, arose after sheriff’s deputies charged two men with a misdemeanor for having sex in a Houston-area apartment in 1998.

Yet Texas’s biennial legislature recently concluded its 2019 session without passing any of seven Democrat-led bills that would have excised the “homosexual conduct” prohibition, which was enacted in 1973.

It would not be complex or time-consuming to strike out a brief section from the code, and Democrats have tried at every regular session since the supreme court ruling. None of this year’s bills made it beyond the committee stage.

Attempts to update the Texas Family Code to comply with the 2015 supreme court decision that legalised same-sex marriage nationwide also went nowhere. The code insists, in language introduced in 2003: “A marriage between persons of the same sex or a civil union is contrary to the public policy of this state and is void in this state.”

Texas is “by definition an anti-homosexual state”, said Garnet Coleman, a Democratic state representative from Harris county who has filed a bill to repeal the “homosexual conduct” ban in each of the past eight regular sessions. Another of his proposals, to simplify the process of gender changes on official documents, was also spurned this year.

“It’s sort of a given,” he said. “The anti-LGBTQ sentiments in the Republican party are so strong that even an evidence-based circumstance can’t be voted for.”

Republicans on the Texas house criminal jurisprudence committee did not respond to requests for comment.

The 2003 ruling invalidated similar bans in other states, but Texas is not alone in its reticence to delete unconstitutional laws.

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Utah repealed its bar of sodomy (and adultery) in March, joining Montana and Virginia, which repealed laws in 2013 and 2014 respectively.

But anti-sodomy laws technically remain in Alabama, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, North Carolina, Oklahoma and South Carolina, as well as Texas.

Some mention anal or oral sex in the same breath as bestiality, such as Michigan, where the penal code declares: “Any person who shall commit the abominable and detestable crime against nature either with mankind or with any animal shall be guilty of a felony.”

According to Louisiana law, the attorney general has the power to institute civil proceedings against businesses that engage in “unlawful activity aimed at organized homosexuality”. The law cites homosexuality in the same sentence as prostitution, narcotics, extortion and embezzlement.

Critics of the laws argue they are not merely archaic and irrelevant quirks but reflections of current discriminatory attitudes that send a hostile message to LGBT people and occasionally have a direct impact.

A police officer in El Paso, for example, threatened to arrest a group of gay men for violating Texas’s homosexual conduct law after two kissed in a restaurant in 2009.

An investigation by the Advocate in 2013 found that a sheriff’s office in Baton Rouge, Louisiana, had arrested at least a dozen gay men using an invalid sodomy law. That prompted an apology from the sheriff, but two men having sex in a car were arrested for “crimes against nature” in the same city in 2015.

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Florida’s prohibition of “unnatural and lascivious acts” has led to gay men being arrested for consensual sexual activity.

And outmoded American statutes were cited by the Russian president, Vladimir Putin, to defend his own country’s anti-gay law in 2014.

In a Texas legislature dominated by conservatives, changing or making laws requires Republican support. But gay rights advocates are forced to devote much of their energy to stopping lawmakers from passing new anti-LGBT bills. One group, Equality Texas, said its lobbying helped kill 19 bills in this year’s session.

The Texas Republican party’s platform stated until 2014 that “the practice of homosexuality tears at the fabric of society and contributes to the breakdown of the family unit”. Its current manifesto still opposes same-sex marriage and says “homosexual behavior” is against “God’s biblical design”.

“The party’s elected officeholders are terrified of doing anything that would anger the most extreme anti-LGBTQ activists and pressure groups who remain so influential in their party,” said Dan Quinn of the Texas Freedom Network, a progressive advocacy group.

“While national public opinion has shifted substantially in support of treating LGBTQ Americans and their families equally under the law, too many Texas Republicans continue to see opposition to that as almost a litmus test for conservatives.”

Republicans who do anything that could be construed as supportive of LGBT issues fear being challenged by far-right voters in primary elections, said Mary González, a Democratic state representative from El Paso who identifies as pansexual and is the chair of the Texas house’s recently formed LGBTQ caucus. But she is optimistic that attitudes are changing.

“I think what this session taught me is to be much more optimistic when it comes to LGBT justice and advances than in the past. Granted, while we didn’t get anything across the finish line you could see the shift,” she said. “Six years ago I was the only [out LGBT female legislator in Texas] and it was a big deal and people were just really uncomfortable with it. Now there’s five-plus openly out allies, it’s just such a different reality in a short period of time.”

Were the supreme court to reverse course one day – no longer unthinkable given conservatives are now in the majority and the Trump administration has set about rolling back some protections – the statutes would be in effect once more.

“Of course we’re afraid [of that],” Coleman said. But he intends to be back in 2021 for a fresh attempt to repeal the “homosexual conduct” law.

“I believe what you do is you continue to advocate for what you believe is right and at some point something will happen,” he said. “Things don’t happen right away but you keep chipping away. In Texas the LGBTQ community has made tons of progress,” he said. “We keep fighting.”