Texas House approves repealing ban on 'homosexual conduct'

Texas lawmakers voted Thursday to repeal the state’s longstanding ban on gay sex, sending legislation to do so to the state Senate in a historic and bipartisan vote. 

Texas’s defunct ban on “homosexual conduct,” defined in the state’s penal code as “deviate sexual intercourse with another individual of the same sex,” has not been enforceable since 2003, when the Supreme Court ruled it and other state laws criminalizing sodomy between consenting adults were unconstitutional. 

But language classifying gay sex as a Class C misdemeanor, while unenforceable, remains enshrined in Texas law. 

Democrats in the state Legislature, which meets only in odd-numbered years, have pushed to repeal the ban for years but have struggled to secure sufficient bipartisan support.  

Republicans hold majorities in the state House and Senate and had never brought the proposal up for a vote before 2023. Lawmakers that year failed to clear the bill before the end of the House session. 

The Texas Republican Party’s platform calls homosexuality “an abnormal lifestyle choice,” though prominent party leaders like Sen. Ted Cruz (R-Texas) have said they believe the state should rescind the law, which the state adopted in 1973. 

Twelve Republicans ultimately voted with 60 House Democrats Thursday to remove the law from state statute, sending the measure to the Senate for consideration. It isn’t clear whether the bill will be taken up in the state’s upper chamber, which is looking to pass several other measures before the session ends June 2. 

Texas Rep. Brian Harrison, a Republican who earlier this year threatened to defund a state university over its gender and LGBTQ studies programs, signed onto the bill as a co-author.

“Criminalizing homosexuality is not the role of government,” he said in a statement. 

In his closing remarks Thursday, Harrison pointed to support for the law’s repeal from Republicans like Cruz and Supreme Court Justice Clarence Thomas, who called Texas’s law against sodomy “uncommonly silly” in an opinion that also dissented to the court’s majority ruling in Lawrence v. Texas, which struck down the law. 

“If I were a member of the Texas legislature, I would vote to repeal it,” Thomas, one of the court’s leading conservatives, wrote at the time. 

Texas Gov. Greg Abbott (R) has not said whether he would sign the bill if it reached his desk. A spokesperson for the governor did not immediately return a request for comment. 

Speaking on the House floor Thursday, Democratic state Rep. Venton Jones, who is gay, said he was not asking lawmakers to vote on whether they agree with the court’s ruling in Lawrence. 

“Instead, I’m asking you to vote on a law that strengthens the fundamental civil liberties and individual freedoms that all Texans deserve,” said Jones, the bill’s author. “I’m asking you to vote for a law that upholds the principles that Texans should have the freedom and ability to make their own private decisions without unwarranted government interference.” 

Including Texas, 12 states still have “zombie laws” — unenforceable because of the Supreme Court’s ruling — against sodomy on the books.