Texas employers would no longer be able to discriminate against employees based on sexual orientation or gender identity, according to a bill filed by state Rep. Mike Villarreal (D-San Antonio). No federal law is in place to protect gay and transgender employees, though as of July 2009, 21 states have nondiscrimination laws, according to the National Gay and Lesbian Task Force.

“In effect any employer in Texas who learns about an employee’s sexual orientation can basically say, ‘Pack your bags. You’re out of here.’ Just on that fact. And there’s no recourse for that employee,” said former state legislator and gay rights activist Glen Maxey.

Maxey, who founded the LGBT rights group now known as Equality Texas, did not think Villarreal’s bill has much of a chance of becoming law, even though many major private companies already have anti-discrimination policies in place for gay and transgender employees.

“We are talking about the Texas Legislature. The Texas Legislature is not known for being progressive on many issues at all. It was a huge uphill climb for the Texas Legislature to even pass a hate crimes act, which was trying to get at issues where people were being brutally murdered on a regular basis across Texas,” said Maxey, who served in the Texas House as an Austin Democrat from 1991-2003. “So employment discrimination legislation is an even harder thing to do in the Legislature. Unfortunately the Legislature has become much more conservative and anti-gay in the last number of years.”

Under Villarreal’s House Bill 665, sexual orientation and gender identity or expression of employees would be protected, along with race, color, disability, religion, sex, national origin and age. Employers would not be able to factor in sexual orientation and gender identity when hiring, firing, segregating or classifying employees. The legislation also applies to employment agencies and labor organizations.

Villarreal has filed similar legislation each Regular Session since 2003, and Maxey pushed for similar protections before that. Complaints of workplace discrimination based on sexual orientation were fairly routine in the ’80s, Maxey said, and have declined as the gay/lesbian community has become more accepted in general society. Nowadays, complaints typically involve rural areas, small businesses and low-wage employees.

The City of Austin has had an anti-discrimination ordinance in place since the ’80s, Maxey said. While activists in progressive areas of the country, such as the East and West coasts, fought and won fights for employment nondiscrimination years ago, and then moved on to bigger battles such as gay marriage — more conservative areas in the Midwest and South, like Texas, never instituted employment nondiscrimination laws, he said.

The result is that no major gay/transgender employment discrimination lawsuits are moving up through the federal court system, while gay marriage cases are, so that if reform is enacted from the federal level on down, it will most likely involve gay marriage before addressing employment discrimination, he said. Recently, U.S. Supreme Court Justice Antonin Scalia said in an interview with California Lawyer Magazine that the 14th Amendment does not give equal protection to women and gay individuals.

“Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box,” Scalia said.

Since at least 1999, no bill prohibiting discrimination by employers based on sexual orientation or gender identity has made it out of the committee stage in the Texas Legislature.

“Private business and society in general are moving faster than the laws are, actually,” Maxey said.