That’s a Wrap! Texas’ Fourth Special Session Winds Down as Legal Challenges Mount
Capping a long legislative year, both chambers of the Texas Legislature adjourned sine die last Tuesday, with some key priorities on school choice and education left unaddressed. That’s not to say 2023 has been a legislative bust, however. The lackluster finish was preceded by a series of victories during the regular and first three special sessions on women’s sports issues, protecting children from harmful gender transition procedures and drag shows, and keeping pornographic books out of public school libraries.
Governor Abbott’s intent to call a 5th special session is currently uncertain as he has promised to “continue to work with Texas legislators and at the ballot box to get school choice.”
Meanwhile, legal challenges ramp up against legislation passed in 2023, and with over 700 new laws taking effect this year, the focus and strategy for many organizations shifts to the courts. With a comprehensive approach to advocacy, Texas Values is working in the court system to defend the strong laws passed this year. We’ve summarized some of the challenges already being fought on our issues:
Protecting Kids from Hypersexualized Drag Shows (Senate Bill 12)
In The Woodlands Pride, Inc, et al. v. Colmenero et al., a coalition of LGBT pride groups and drag queens filed a lawsuit to stop enforcement of Senate Bill 12 on the grounds that that drag is a form of art, and claiming SB 12 violated their constitutional freedom of speech and expression.
Texas Values wrote a legal amicus brief in support of the SB 12 enforcement. The brief went into depth underscoring the content-neutral intent of the legislation and its House and Senate authors.
Ultimately, a liberal U.S. District Judge ruled in September of this year that SB 12 “impermissibly infringes on the First Amendment.” Only a week before this ruling, another Texas federal judge issued an opinion supporting drag show restrictions. Judge Matthew Kacsmaryk wrote that it was “not clearly established that all ‘drag shows’ are categorically ‘expressive conduct.’” The SB 12 decision is likely to be appealed as this area of law continues to evolve.
Ban on Gender Transition Procedures and Treatments for Children (Senate Bill 14)
Senate Bill 14 was passed to protect Texas kids from damaging, unproven gender transition interventions. It was able to take effect on schedule because of Texas’ permissive rules on appeals, however, it is still being litigated by critics of the law.
The case, known officially as Loe et al. v. State of Texas was filed by a coalition of parents who claim to have minor children needing these interventions, and pro-LGBT doctors and organizations. A district judge initially ruled in favor of the pro-LGBT coalition, imposing a temporary restraining order, however the Texas Attorney General utilized an appeal mechanism in Texas law to stop the court’s order while proceedings play out at the Texas Supreme Court.
Texas Values was intimately involved in the passage of SB 14 and is preparing to support the law through amicus filings as well. It appears a final decision in this case will take well in 2024.
Banning Explicit Books and Materials in Public School Libraries (HB 900)
HB 900 was passed to keep sexually explicit books off library shelves in the State of Texas’ more than 1,200 school districts. A coalition of book groups and seller, including two Texas bookstores sued over the new law in July 2023 in a case called Book People, Inc. et al. v. Wong. In late August, a federal judge barred Texas from enforcing the law, but a panel of 5th Circuit judges blocked that order. Now the full 5th Circuit court is considering the legal challenge.
A hearing was held in November with the discussion centering on the bill’s definition of sexual content and community standards (known in the legal world as the Miller test). It is not clear when the 5th Circuit will issue a ruling on this case.
Obscene Materials Age Verification Law (HB 1181)
HB 1181 is a simple bill to require pornography sites to verify whether a user is 18 years or older and to describe the harmful medical and societal effects of pornography consumption. Texas Values supported this legislation earlier this year in public committee hearings.
While pornography distributors initially sued to stop this law from being enforced, the State of Texas notched a significant victory just a few weeks ago when the U.S. 5th Circuit Court of Appeals overruled a lower court to allow the law to go into effect.
Challenges to Pro-Life Laws
While pro-life protections such as the Human Life Protection Act (HB 1280) and the Texas Heartbeat Act (SB 8) were passed during the 2021 regular Texas legislative session, legal challenges that were slow to start are now starting to come into focus. Since Roe v. Wade was overturned in 2022, opponents have sought to weaken abortion bans such in states such as Texas by suing on aspects of the law for women with pregnancy complications.
This month, a pregnant woman in Texas with a Trisomy 18 diagnosis filed suit to abort her baby. Although she did not show evidence that her life was at risk, a district judge still gave her permission to have an abortion because she claimed to have bodily and “mental health” risks associated with continuing her pregnancy. The Texas Attorney General’s office pushed back against the judge’s order and reminded hospitals and doctors that they could still be sued civilly under SB 8, the Texas Heartbeat Law. Ultimately, the Texas Supreme Court blocked the lower court’s ruling, upholding life. However, litigation on other pro-life cases are ongoing.
Fairness in Women’s Sports Legislation (Senate Bill 15)
SB 15 was the top-supported priority of Texas Values during the 2023 legislative session. Due to a solid legal foundation, the law has thus far avoided legal challenge from LGBT groups within the state. However, the Biden administration and federal agency counterparts in the U.S. Department of Education have been at work for more than a year re-writing rules on how schools should follow Title IX, the federal law that bans sex discrimination at K-12 colleges and schools that receive federal funds. They want to prohibit schools from allowing males to compete in female athletic competitions.
The proposed rule was initially delayed until October 2023, but with the help of Texas Values and other organizations, a vast amount of public comments were generated on the proposed rule changes, and overwhelmed department officials missed the October deadline as well. It now appears that the rule will not be ready until well into 2024. But the fight is far from over. As with other controversial federal
rulemaking, litigation is sure to be brought against enforcement of any new federal rules. Texas Values will not stop fighting for fairness in women’s sports.
Conclusion
We have our hands full! Other legal challenges could drop at any moment, school choice is still incomplete, and the Biden administration is laser-focused on destroying conservatives nationwide. The fight isn’t over just because session has ended.
We will, continue our work in the courts, legislature, and media for issues affecting Texans’ faith and freedom. Your prayers and support are indispensable to our efforts.