"OutLaw: A Half-Century Criminalizing LGBTQ+ Texans"
STORYTELLING CATEGORY — SHOWCASE CERTIFICATE OF MErIT
KXAN
Contributors: Josh Hinkle, David Barer, Richie Bowes, Arezow Doost, Eric Henrikson
11/13/2023
In 2023, Texas lawmakers crafted and considered a historic amount of bills primarily impacting the state’s LGBTQ+ community. Policies passed to prevent some medical treatments for transgender children, ban books mentioning LGBTQ+ topics in public schools and criminalize certain performances critics worry could include drag shows. Repeatedly referenced regarding such legislation was a measure passed 50 years earlier, outlawing “homosexual conduct” in the state. Though the U.S. Supreme Court declared it unconstitutional in 2003, that law still exists in Texas – one of only a few states yet to repeal it. Through extensive case analysis and vast video, audio and newspaper archive research spanning 160 years, KXAN investigators explored why the statute remains, its lasting impact and the fight over its possible removal. We looked closely at its supporters and opponents, the legal challenges standing in the way and related efforts unfolding now and in the near future.
INNOVATIVE APPROACH
In 2023, a fifth of all state-level bills filed in the U.S. impacting the LGBTQ+ community came from Texas, according to a Human Rights Campaign analysis. Equality Texas tracked a record 141 such bills this year up from just 12 in 2015. For LGBTQ+ journalists at KXAN, that mounting legislation restricting their community brought concerns – and presented an opportunity. We decided to lean into the informed, well-sourced reporting those journalists could offer, launching our “OutLaw” project. Knowing the topic was already highly-politicized and often emotional in legislative hearings and beyond, we wanted to take a multi-platform, extensive look – and produce it in a way our audience would know we are striving to maintain objectivity and fairness. It started with a broad look at the legislation proposed and analyzing the background, influence and outcome of each bill we focused our reporting around. Some measures passed, others progressed further than ever before. As our investigators tried to track down details on the players behind these policies, we also worked with our LGBTQ+ journalists – reporters, data analysts, photographers – to ensure complete, accurate reporting. We wanted to show how our closeness to the subject was actually a benefit – one we could maintain with an approach that addressed any perceived bias.
Nearly 30 journalists and KXAN staff members took part in the project in some way. Our reporting took us thousands of miles across Texas far beyond the State Capitol – from Dallas-Fort Worth and Houston to San Antonio and even El Paso. Over six months, we researched financial records, requested decades of criminal and court documents and reviewed scores of media archives. We interviewed dozens of people – on all sides of these issues – and worked collaboratively to be transparent and scrutinize the content we collected and the stories we would eventually share. Each story in this project was reviewed by multiple newsroom leaders and part of constant conversations about fairness. We sought the truth. We provided the facts. And we showed our work. As an added form of transparency, we released an “inside the investigation” letter for readers, and some of our team members – LGBTQ+ and allies – even discussed their process and experience in a companion podcast. That accompanied a docuseries, digital stories – showcased online with flipping topic tiles – with interactive data components and a dozen on-air reports to break down these issues in the most comprehensive way we could.
INVESTIGATIVE METHOD
Tracking the misuse of Texas’ unconstitutional ban on homosexual conduct proved to be the most challenging aspect of this project due to the state’s transparency rules. KXAN submitted more than three dozen public information requests to city police departments, county sheriff’s offices and municipal court clerks in Texas’ 10 most populous counties, seeking records of arrests or charges filed for that offense since 1973, when the law banning it was created. Several municipal courts said they only retain Class C misdemeanor records for five years, a retention period prescribed by the Texas State Library and Archives Commission. However, we did learn of a handful of instances following the Supreme Court ruling where the outdated law was misapplied – including a high-profile case out of El Paso often referenced in legislative efforts to repeal the law from Texas’ Penal Code.
Since 1983, state lawmakers have held at least 14 public hearings on such legislation, according to a KXAN analysis. At least nine bills that would repeal the law were filed in 2023 – a single-session record in Texas. The staunchest public opponent of repealing the law has been a conservative activist group, Texas Values, which has registered or testified 17 times against eight of the bills since 2015 – far more than any other group. Its nonprofit arm has existed since about 2013, steadily increasing its revenues in that time, according to IRS 990 forms reviewed by KXAN. In total, Texas Values’ nonprofits brought in $10 million in revenue between 2013 and 2021. Aside from lobbying and political spending, Texas Values clearly defines its stance on certain politicians. If lawmakers support conservative causes that align with Texas Values’ mission, they earn endorsements before elections and high marks on legislative scorecards available on the group’s website. Texas Values has provided such support to nearly every Republican lawmaker who has sat on a committee that considered a bill to repeal the homosexual conduct law over the past eight years, according to a KXAN analysis. None of those bills has passed. Its endorsements were directly mentioned in the most recent legislative hearing where the group aimed to kill repeal efforts.
PROJECT IMPACT
Today, Texas, Kansas and Kentucky are the only remaining states with a measure outlawing homosexual conduct on the books. Looking at the future, some constitutional scholars have suggested the Supreme Court could overrule Lawrence v. Texas – its 2003 decision striking down the law in Texas and a dozen other states – in the same manner it recently overturned Roe v. Wade, leaving states to decide whether to allow or outlaw abortion. During KXAN’s reporting on this topic, state lawmakers who supported the latest efforts to repeal Texas’ law indicated their intent to re-file the bill – which progressed further than ever before this year – next legislative session in 2025.
Links Related to Content
Main Project / 'Homosexual Conduct' Docuseries
Companion Podcast
Policies & Proposals / Explore the Stories Page
Inside the Investigation
Helping or hurting trans kids? Health care fight continues after law
Lawmaker efforts foreshadow challenges for Texas drag future
How new Texas law restricting some books stacks up nationwide
From bathroom bills to trans health care, how Texas lawmakers shifted LGBTQ+ focus since 2015
Submitted by Josh Hinkle.