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On March 5, state representative Tom Oliverson of Texas introduced a bill that would make being transgender a felony. Since then, Reps. Keresa Richardson, Janis Holt, Shelley Luther, Brent Money, and Wesley Virdell have all added their names. Texas HB 3817 is a fairly short bill that amends Subsection D, Chapter 32 of the Penal Code to add Section 32.515 (the proposed bill), whose text reads “A person commits an offense if the person knowingly makes a false or misleading verbal or written statement to a governmental entity or the person’s employer by identifying the person’s biological sex as the opposite of the biological sex assigned to the person at birth.” It adds that an offense under this section would be considered a state jail felony, which according to Zak Wellerman of CBS19, carries a jail sentence of 180 days to two years, and a fine of up to $10,000 (“State lawmaker authors bill that could charge transgender Texans with crime”).
According to Gwen Howerton of Chron, this bill is unlikely to pass. Its number, HB3817, indicates a low order of priority, and (as of writing this article) it hasn’t even been scheduled for a committee meeting. Callie Butcher of Butcher Legal Group, a Dallas law firm who advocates for LGBTQ+ rights, was also cited as saying the bill is unlikely to pass (“Houston lawmaker proposes bill that could charge transgender Texans with fraud”).
I’ll note that Howerton — along with every other source I found that commented on the likelihood of passage — also cited its solo authorship as a reason it was unlikely to pass. I don’t want to imply these sources lied, as all were written prior to the others adding their names. Its low priority and lack of a scheduled committee hearing still make it unlikely to pass, so I don’t think their points are fully negated, but this may make it more likely. It shows a much broader audience who are willing to engage with this bill than immediately apparent.
I do question the enforceability of this bill. Can a non-binary person or an intersex person be properly understood to have an “opposite biological sex?” Given that sex and gender are different, and gender does not necessarily reflect biological sex (“What is gender? What is sex?” Canadian Institutes of Health Research), does someone identifying as a different gender necessarily mean they are representing themselves as a different biological sex? As a trans person myself who knows a lot of trans people, it’s not like we deny our biological sex. “Transgender” literally says “gender” – not “sex.” I’m not trying to represent myself as biologically male, I’m trying to say my gender is male. This is being criminalized as a form of fraud, and fraud has prerequisite mental intent, so can I even have that intent, if I’m not attempting to claim that I have an “opposite biological sex?”
I have so many questions about how this bill would even be applied if it became law, which in and of itself raises concerns that it might be unconstitutionally vague. According to Cornell Law School’s Legal Information Institue (LII), “the vagueness doctrine is a Constitutional requirement criminal laws must explicitly state and define what conduct is prohibited and punishable.” Full disclaimer: I am not a lawyer, and the law class I’m enrolled in focuses on civil rather than criminal law, so take everything with a grain of salt. That said, the lack of definition of things like sex and gender might be too vague. As a trans person who would be impacted by it if it passes and I went to Texas, I’m not sure what I could or could not do, and that’s the exact situation the vagueness doctrine seeks to prevent.
And even if it clears these hurdles, this bill is probably unconstitutional as a form of de jure (that is, “by the law”) discrimination. In the landmark case Brown v. Board of Education, Justice Earl Warren writing on behalf of a unanimous Supreme Court wrote that the “separate but equal” doctrine was unconstitutional because “such segregation is a denial of the equal protection of the laws,” because the laws themselves were unequal. While Brown only applied to race, later precedent expanded this to sex as well, most notable among these likely being Justice Ruth Bader Ginsburg’s opinion on behalf of the majority of the Supreme Court in United States v. Virginia, where she found “sex classifications […] may not be used, as they once were […] to create or perpetuate the legal, social, and economic inferiority of women.” Additionally, in Bostock v. Clayton County, Georgia, Justice Neil Gorsuch writing on behalf of the Supreme Court majority extended this to sexuality and gender identity, holding that “an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision.” Brown prohibited de jure segregation on the basis of race, United States expanded this to sex, and Bostock clarified sex included transgender identities. Criminalizing certain forms of identification is definitional de jure discrimination, and there is a string of precedent that would affirm the unconstitutionality of this bill.
I’ve heard people compare this to actions from the Florida’s Department of Highway Safety and Motor Vehicles (FDHSMV, DHSMV), but there are some key differences here. Most notably, this applies to a much wider variety of documentation, and that it’s criminal. In the FDHSMV case, the only impacted documents were those they had the authority to produce – which is just drivers’ licenses. Additionally, no DHSMV has the authority to declare a new policy has criminal consequences, because that requires a law to be passed. At most, they could impose civil penalties such as fines (“Trans people in Florida can no longer update their driver’s licenses,” Orion Rummler, The 19th*).
All that being said, this is an incredibly concerning step. Texas lawmakers are proposing a bill that is likely unconstitutional but would criminalize many of the basic things needed for trans people to exist and be recognized as their true selves. If this passes – and given the increased interest shown by the lawmakers signing on as co-authors post-introduction, this is more and more likely – I cannot understate how dangerous of a precedent this would set for the legality of trans identities in other parts of the country.
