SAN ANTONIO — Laws in Texas requiring sex education courses to emphasize that being gay is “not acceptable” and that homosexual conduct is a criminal offense represent an anti-gay culture in the Legislature that could be changing, two openly gay lawmakers said.

The laws, ruled unconstitutional by a 2003 Supreme Court decision, have remained in the Health and Safety and Penal codes despite efforts to remove them.

“I hope with every fiber of my being that this does get removed because it encourages people and students not to accept each other, but to actually discriminate against each other,” said state Rep. Mary Gonzalez, D-El Paso, who is bisexual.

One law, enacted in 1991, requires sex education courses developed by the state health department to emphasize “that homosexuality is not a lifestyle acceptable to the general public” and that “homosexual conduct is a criminal offense.” Another law, passed in 1974, classifies “intercourse with another individual of the same sex” as a Class C misdemeanor, punishable by a fine up to $500.

El Paso police in 2009 cited the so-called anti-sodomy law to remove a gay couple from a restaurant for kissing, resulting in a lawsuit settlement requiring diversity training for police.

“I hold a lot of optimism for (these) issues because things have changed so quickly; it's only a matter of time before Texas realizes it's part of the United States and is in the 21st century,” said newly elected state Rep. Celia Israel, D-Austin, who is a lesbian. “I think lawmakers like Mary (Gonzalez) and I and our straight allies will be able to change those attitudes (in the Legislature) member by member.”

Israel's special election victory last month marks the first time in history that the Texas House has two openly gay members, said Chuck Smith, executive director of Equality Texas, a group that advocates for lesbian, gay, bisexual and transgender rights.

Bills to repeal the language have faced opposition, primarily from Republicans, who have cited the state's majority vote on a same-sex marriage ban in 2005 as proof that Texans do not want the language removed.

A federal judge in San Antonio heard arguments Wednesday for a case that could temporarily block the state's ban on same-sex marriage and likely set the case on a path toward the U.S. Supreme Court.

“State Rep. Mary Gonzalez identified herself as a 'pansexual' after she was elected so it should be no surprise that she wants the state to ban students from learning that homosexual conduct is not safe for school-age children, and it's sexual conduct that should be discouraged and not promoted in public school.” said Jonathan Saenz, president of Texas Values, a conservative group.

But straight Democrats and Republicans have said they oppose the law. State Rep. Sarah Davis, R-West University Place, said in October that the laws should be removed because they've been deemed invalid.

State Sen. Jose Rodriguez, D-El Paso, last year filed Senate Bill 538, which would have removed both laws. The bill was passed through committee for the first time but was left pending in the Senate by Lt. Gov. David Dewhurst.

“An illegal law has no place in Texas books. It's ridiculous that state lawmakers would not support repealing an illegal law simply to appease the intolerance of their voting base,” Rodriguez said.

The sex education guideline applies to a program developed by the state health department for “school-aged children” used by school districts, community and church groups, and others, said Chris Van Deusen, a spokesman for the Department of State Health Services.

Van Deusen said the agency's sex education program has not included any information on homosexuality other than a simple definition since 2003 because of the Supreme Court decision and a nondiscrimination requirement to secure federal funds for the program.

“The voters didn't care I was running as an openly gay candidate,” said Israel, 49. “Public education funding was the No. 1 issue in the campaign, and that will be the same moving forward.”

kparker@express-news.net

Twitter: @KoltenParker