HealthcareJudicialState Board Cannot Punish Discrimination for Gender Identity or Sexual Orientation, Paxton Writes

The board added gender identity, sexual orientation, and disability to the list of traits protected from discrimination by social workers.
June 15, 2021
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Texas Attorney General Ken Paxton said yesterday that the state board in charge of licensing social workers cannot punish them for gender identity or sexual orientation discrimination.

The Behavioral Health Executive Council (BHEC) licenses counselors, family therapists, psychologists, and social workers. A young agency, the legislature created the BHEC in 2019 and authorized it to punish license holders that refuse to serve recipients “solely because of the recipient’s age, sex, race, religion, national origin, color, or political affiliation.”

However, the BHEC slightly changed this rule when adopting it.

The council added disability, sexual orientation, and “gender identity and expression” to the list of traits protected from discrimination, though only for social workers. If social workers “refuse to perform any act or service” on the basis of these traits, the board can punish them.

In an opinion, Paxton claimed that the BHEC overstepped its authority when it made this change.

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“The Council lacks authority to discipline licensees for discrimination beyond what the Legislature authorized it to address,” Paxton wrote.

“Thus, the Council’s attempt to rewrite the Legislature’s chosen language by changing the term ‘sex’ to ‘gender’ and to prohibit discrimination on the basis of disability, sexual orientation, or gender identity and expression… exceeds the authority granted to it by the Legislature.”

The bulk of Paxton’s letter focuses on gender and sexual orientation due to the prominence of law and legal cases that deal with them.

In Bostock v. Clayton County, the U.S. Supreme Court ruled that federal law forbids discrimination for gender or sexual orientation in employment. Paxton argued that this decision does not support the BHEC’s rule change.

“The factual scenarios at issue in that case involved employers firing employees on the basis of their sexual orientation, as distinguished from the scenarios at issue here, where the Council seeks to compel its licensees to affirmatively provide services to individuals without consideration of sexual orientation or gender identity,” Paxton wrote.

He also cites as support the Masterpiece Cakeshop case, in which the Supreme Court sided with the Colorado bakery whose owner refused to bake cakes for gay weddings.

As the opinion notes, no Texas statute prohibits discrimination based on sexual orientation or gender identity and expression.

Opinions of the attorney general are not binding. They are interpretations meant to foretell how a court would likely rule on a legal question.

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Isaiah Mitchell

Isaiah Mitchell is a reporter for The Texan, a Texas native, and a huge Allman Brothers fan. He graduated cum laude from Trinity University in 2020 with a degree in English. Isaiah loves playing music and football with his family.