Can Bostock do the Texas Two-Step? The Need for LGBTQ Legal Protections in the Lone Star State

Abstract

LGBTQ Texans are offered zero protections from discrimination under Texas law. Texas is one of only five states with no laws to prevent discrimination in public accommodations despite the majority of Texans supporting legal protections for this community. Public accommodation laws ensure that individuals are able to engage in commerce at businesses generally open to the public without being discriminated against based on their membership in a protected class. When the Supreme Court decided Bostock v. Clayton County, it held that Title VII’s “because of sex” analysis inextricably includes the derivatives of sexual orientation and gender identity (SOGI). While the majority limited the holding to Title VII, even the dissent understood that the holding would have implications far beyond employment, referencing the hundreds of other federal statutes that would be affected. This ever-developing precedent was recently expanded by an Executive Order from President Biden, applying Bostock to all federal statutes that prohibit discrimination on the basis of sex. Multiple states are already applying this holding to laws prohibiting discrimination in other contexts like housing, education, and public accommodation under the logic that the holding applies equally to state laws that are modeled after federal counterparts. Further expansion of the Bostock holding is inevitable. Unlike other LGBTQ rights cases that were decided under the Equal Protection Clause or Due Process Clause, Bostock is a statutory interpretation decision whose effects will seamlessly bleed into other areas of law. Texas has multiple interests in joining the growing number of states expanding LGBTQ protections: safeguarding the monetary interests that business transplants and tourism bring to the state, avoiding needless litigation from advocate groups, and a shifting state electoral map that is trending evermore purple as Texas is further diversified. The holding in Bostock is the writing on the wall for Texas; now is the time to pass substantive legislation that has stalled in the legislature for the past two decades. Texas should pass legislation that closes the gaps in federal law and balances state interests to afford protections to LGBTQ individuals in places of public accommodation. Passing this legislation is the first step in righting the wrongs of decades of discrimination and would set Texas on a path for progress.