Houston’s Equal Rights Ordinance is Down, But Not Out

In order to bring equality to Houston, we need more education, more pressure, and a fresh push by the new city council.

On Tuesday, November 3, Houston’s Equal Rights Ordinance (HERO) succumbed to its opponents’ distortions and fear-mongering tactics, which managed to sway just enough voters to defeat the ballot measure. This leaves Houston as the only major city in Texas—indeed, in these United States—that does not extend equal rights protections to all its citizens.

In the most diverse city in America, that this happened is inexcusable. But we must understand how it happened if we hope to turn the tables.

The Campaign for Houston that opposed HERO was bankrolled by Steve Hotze, an unapologetic, sword-brandishing anti-LGBT crusader who is on record stating that he wants to “drive [gays] out of our city [and] send them back to San Francisco.” The opposition wisely kept Dr. Hotze away from the microphones during the campaign, but their tactics were no less reprehensible. The Campaign for Houston brandished a lie, playing on peoples’ misunderstanding of what it means to live life as a transgender person who simply wants to use the restroom to do his or her business. It was the only card they had to play, and they played it incessantly.

Unfortunately, it was enough.

We need to change the conversation about our transgender neighbors if we hope to turn the tide in Houston and elsewhere. Theirs is not an easy life. Transgender Americans are twice as likely to be unemployed or living on less than $10,000 a year. Nearly half have been fired or denied promotions, and a full 90% have been harassed or mistreated in the workplace. They are routinely evicted or denied housing and health care. Transgender folks—young people especially—are at a staggeringly high risk for bullying and suicide. And tragically, they’re also considerably more likely to be assaulted or murdered. And some of their murderers have even attempted to turn their own feelings of deceit into a legal defense. It’s called the “trans panic defense,” and it’s based on the theory that discovering someone is transgender can render you temporarily insane, if you can believe such nonsense.

And when it comes to America’s restrooms, 70% of transgender men and women report having been verbally or physically attacked while using one. Where our public bathrooms are concerned, transgender Americans aren’t the predators—they are the prey.

We also need to revisit our understanding of sexual assault. Contrary to the Campaign for Houston’s nightmare scenario—which has literally never happened—sexual predators aren’t hiding in the bushes or lurking in bathroom stalls. In fact, 90% of sexual assault victims know their attacker, and about half of all sexual assaults happen within a mile of the home. To suggest that predators are waiting for a city ordinance to pass so they can freely victimize strangers in public restrooms grossly distorts the nature of sexual assault itself and therefore endangers women.

Voters also need to be made aware of what an equal rights ordinance actually accomplishes. It’s not just an LGBT issue. In fact, HERO protects 15 distinct categories of people, and over half of the discrimination claims filed in Houston involve race. And yes, racial discrimination is federally prohibited, but making that case requires thousands of dollars and years in federal court. HERO achieves the same goal in months, for free.

Here at home, we will continue the fight. It’s too early to tell if Houston can expect the same backlash that swept Indiana when it tried to legalize discrimination last year, and we won’t wait to find out. Our next mayor and our newly elected city council members must make equality a priority the moment they are sworn into office. Our partners and volunteers who have worked to bring equality to Houston won’t back down until everyone can live fairly and equally under the law.

In the most diverse city in America, nothing could be more important.

If you’d like to help, click here to send a letter to the editor of your local paper demanding equality in Houston.

Terri Burke is the executive director of the ACLU of Texas.

President Obama and Texas Are Colluding to Detain Refugee Children in Private Prisons

The State of Texas has issued an emergency rule that transforms private prisons into “licensed child care facilities.”
By Terri Burke

Update Feb. 5, 2016: At a hearing on Thursday, Feb. 4th, the Department of Family and Protective Services (DFPS) has decided to push ahead with the rule change. The proposal has now gone to the Health and Human Services Commission (HHSC) for consideration.

At a time when both left and right have begun to agree on the needless financial and human costs of mass incarceration, the State of Texas is conspiring with the Obama administration to undermine a federal court order so they can keep innocent children in prison. If they succeed, it will be the latest in a litany of miseries wrought upon desperate kids and their mothers fleeing Central and South American countries where many had been kidnapped, raped, beaten, and tortured.

Beginning in the summer of 2014, U.S. Immigration and Customs Enforcement ramped up its incarceration of refugee families seeking asylum, contracting with private prison companies to build massive detention centers to contain them.

These tired, poor, and huddled masses yearned to breathe free and found that they could not. Instead, they were shepherded through freezing, overcrowded holding cells with inadequate facilities, nutrition, and medical care, then transferred to private prisons in Dilley and Karnes — towns south of San Antonio — where they are locked up in compounds that resemble internment camps.

And despite their very credible fear that deportation was tantamount to a death sentence, many of these mothers and children were denied access to attorneys. Some of the women went on a hunger strike to protest their inhumane treatment — and the children continue to suffer from poor health, weight loss, diarrhea, bed-wetting, and nightmares as a result of their incarceration.

It appalls me that such injustices can happen in America.

It also appalled Dolly M. Gee, the federal district court judge who ruled last July that the Obama administration’s incarceration of children and their mothers violated a long-standing settlement agreement from a case known as Flores. Judge Gee decried the Department of Homeland Security’s “dubious” attempts to circumvent Flores and found that DHS “wholly failed” to ensure that detention facilities were “safe and sanitary.”

Most importantly, Gee noted that Flores requires that minors be released either to (or with) family members, or that they be remanded to “licensed, non-secure child care facilities.”

Let’s be clear: Prisons are not licensed child care facilities.

But come October 23, the State of Texas and the Obama administration plan to argue that they are.

In Texas, the responsibility for licensing child care facilities falls to the Department of Family and Protective Services, which publishes and updates 350-page manual of minimum standards for such facilities. It’s pretty thorough.

However, recently the DFPS issued emergency rule 748.7, which specifically exempts these private prisons — referred to with a certain Orwellian flair as “family residential centers”— from having to comply with the minimum standards it requires of everyone else.

In other words, with the stroke of a pen the DFPS can officially turn prisons into licensed child care facilities, though they do not meet the standards to which every other such facility is required to adhere.

This may seem insane and cruel and cynical because it absolutely is, but it’s also unnecessary.

The U.S. spends $2 billion a year on immigration detention solely to ensure people show up to their court hearings. Setting aside the needless financial waste — and it’s hard to believe I have to say this — imprisoning innocent children is wrong.

These are families fleeing unspeakable circumstances, and there isn’t a mother alive who wouldn’t make the sacrifice to protect her children from danger and try to give them a better life. It’s heartbreaking that our own federal and state governments won’t respect their suffering and their bravery. Instead they engage in these craven bureaucratic antics just so they can keep kids behind bars.

DHS must comply with Judge Gee’s order by this Friday. We fully expect them to argue that DFPS’s sham licenses keep them from having to set these families free. We can only hope that the court will demonstrate the wisdom it has in the past and reject this inhumane and brazen deception.

Let’s Assume the Kids (and Ahmed) Are Alright, Not Criminals

Last Sunday night in Irving, Texas, a 14-year-old boy named Ahmed Mohamed got bored. But instead of firing up his X-Box for a few rounds of Counterstrike or checking up on his fantasy football progress, Ahmed decided to build a digital clock from scratch. He likes to tinker.

By now you’ve probably heard what happened next: When Ahmed took his masterpiece to school the next day to impress his teachers, the clock was confiscated and Ahmed was pulled out of class. He was interrogated by five different police officers. His belongings were searched. He was threatened with expulsion. He was accused over and over and over again of wanting to build a bomb, or wanting people to think he’d built a bomb. He repeatedly requested to contact his parents, and those requests were denied.

Instead, law enforcement agents handcuffed the frightened high school freshman wearing a NASA t-shirt, frog-marched him out of school, and remanded him to a juvenile detention center where they snapped mug shots and took his fingerprints. The school suspended Ahmed for three days, and until the story went viral, police were considering charges.

How could this have happened?

The first and most obvious answer is racism and Islamophobia. Ahmed is Muslim, and Irving has something of a checkered history with the Muslim community. In 2012, the Irving Independent School District commissioned a 72-page report to determine if its curriculum was too pro-Islam. (It wasn’t.) In a response to a local mosque setting up a mediation panel for its worshippers, earlier this year the Irving city council voted to support an anti-Islamic bill that would forbid Texas judges from applying Shariah law in their decisions (This was, of course, already the law.)

Islamophobia, and probably racism, certainly played a role in Ahmed’s ordeal, but the fact is overzealous administrators, zero-tolerance policies, and law enforcement officers ill-equipped to deal with schoolchildren have compromised educational environments throughout the country.

If we’re handcuffing autistic children at the elbows or throwing them in jail overnight, then we’re failing them. If we’re hitting kids with felony weapons charges for bringing fishing tackle to school, then we’re failing them. And if we’re using suspensions (which absolutely do not work) against students who build clocks, or twirl pencils, or write about pot, or chew their Pop-Tarts into the shape of a gun, then we’re failing them.

The Texas Commission on Law Enforcement is currently developing a specialized police-training program for officers who work in our schools. The sooner, the better. Officers need to understand that they’re dealing with children rather than criminals. They need to ensure that a child’s right to contact their parents is as sacrosanct as any other individual’s right to speak to an attorney. And above all, they need to undertake a comprehensive review of their racial-profiling practices and cultural-sensitivity training — oh yeah, and their use of handcuffs.

Ahmed suffered through a terrifying, traumatizing, and unjust ordeal. Yet because of the mass exposure of what he endured, he’s received invitations to the White House, Facebook headquarters, and the Google science fair. I’m fairly certain that Ahmed is going to come out of this just fine. He’s called it the American dream come true and for him it seems to be so.

For too many others — the ones whose stories won’t go viral — the possibility of the American nightmare remains too real.

Terri Burke on Free Speech Zone with @AlyonaMink

Watch Terri Burke, ACLU of Texas Executive Director, on @HuffPostLive “Free Speech Zone” discussing the school police tasing incident contributing to a student’s fall and hospitalization.

Originally aired on December 9, 2013

Please note that by playing this clip YouTube and Google will place a long-term cookie on your computer. Please see YouTube’s privacy statement on their website and Google’s privacy statement on theirs to learn more. View the ACLU of Texas’ privacy statement.

You Found Your Voices and You Have Been Heard

By Terri Burke
Executive Director

State Sen. Wendy Davis may be doing the heavy lifting – standing and talking for 13 hours without a break and without food or bathroom breaks – but she is merely an extension of you.

As I have traveled the state since taking this position five and half years ago, whether I was speaking to a group of 20, 50 or even 150 people, over and over I’ve heard you say, “I didn’t know there was anyone else in Texas who thinks like me.”

The extremist minority has always been louder. Until now.

I’ve always believed there are more of us than we knew, and this past week you’ve shown that to be true. It started when we released statewide poll results last Wednesday afternoon showing that 80 percent of Texans’ don’t think legislators ought to be making these deeply personal decisions for women, that what registered voters really want is for their Legislators to focus on jobs, the economy and education.

Every time you showed up, every time you spoke up – whether it was the 700 plus women and men who waited more than 12 hours to speak at the House hearing last Thursday, or the 1300 who filled the Capitol on Sunday as the House took up the anti-reproductive freedom measures – you emboldened so many more to speak up.

Whether you said no to the arrogance of the majority or no to those whose actions are driven merely for short-term political game, you emboldened so many more.

You were heard across the nation and around the world – really.

It appears victory is in sight. We know this is only one battle in a much bigger war against women and poor people. We can bask in the win tonight and then we have to start again.

Our poll showed clearly that supporting the sanctity of the doctor-patient relationship isn’t a Democratic or liberal position. In fact, 50 percent of the respondents to our poll said they are Republicans or tend to vote Republican, while 37 percent said they are Democrats or tend to vote Democratic.

We must encourage all Texans to join us in this fight; we will start now to educate the public about what their legislature tried to do to them in the name of politics and we will remind them over and over through the 2014 elections and as we prepare for the 84th Legislative Session in 2015.

And we will remember those who stood so tall, so long, so resolute.

Be sure to send your thank-you notes to these Texas heroes:

Rep. Jessica Farrar, Sen. Leticia Van de Putte, Rep. Senfronia Thompson, Rep. Donna Howard, Rep. Sarah Davis, Sen. Kirk Watson, Rep. Yvonne Davis, Sen. John Whitmire, Rep. Nicole Collier, Rep. Mary Gonzalez, Rep. Naomi Gonzalez, Rep. Mary Ann Perez, Rep. Roberto Alonzo, Rep. Alma Allen, and thank Wendy for standing up for Texas women.

At the same time, don’t forget those whose arrogance and complete disregard for the people whose business they were elected to conduct put us through this costly, needless exercise.

On second thought, maybe we should thank Rick Perry and David Dewhurst for helping us find our voices.

They Think We Are Stupid

Terri Burke
Executive Director

The Houston Chronicle on Thursday said there is a “foul odor” about this legislative special session. I agree.

The reasons we agree are many, not the least of which is that the majority of Texans aren’t interested in more restrictions on access to abortion services. We’ve got three polls to prove it, yet Gov. Rick Perry and Lt. Gov. David Dewhurst think we are stupid, that they know best – or maybe it’s just that they’re pandering to the minority of loud-mouthed right-wing extremists.

There is also the matter of the leadership thinking we are too stupid to notice they changed the rules for this oh-so-very urgent matter to be taken up in the special session.

First, there are the polls. During the regular session we polled in three specific Senate districts, all heavily Latino and less urban, even rural in one case. Among the opinions polled, two questions asked how strongly respondents agreed with these statements:

“Personal, private medical decisions of whether to have an abortion should be made by a woman, her family, and her doctor, not by politicians.” The “Strongly Agree” responses ranged from 70 to 74 percent across the three Senate districts.

“Instead of spending time passing more laws restricting abortion, the state legislature in Texas should be focusing on creating jobs and growing the economy.” Here, the “Strongly Agree” responses ranged from 71 to 75 percent.

Rick Perry and David Dewhurst and several key members of the legislative leadership think they know best and legislators ought to spend more of our tax dollars and more of everyone’s time on subjects Texans don’t care about.

Then, there is the rules change. They think we don’t understand that what they are doing is sort of like a losing high school football team moving the game to another field where there are no referees. The Senate rules of the 83rd regular session require 2/3 of the body – 21 members – to vote to bring a bill to the floor for a vote. It is widely agreed that the rule is designed to protect the legislature from spending time on matters that have limited, sometimes only extremist, support.

During the 83rd regular session, only two reproductive freedom bills got out of committee and placed on the Senate Intent Calendar. Neither ever drew 2/3 support to be brought to the floor.

Now, we come to the 1st special session of the 83rd Legislature, and the rules have been changed. They moved the game to a field with no referees: Dewhurst unilaterally, as his office permits, decided the 2/3 rule would not apply. It doesn’t apply to the redistricting issue for which the special session was originally called; it doesn’t apply to the transportation bills being considered; and it doesn’t apply to the four anti-abortion bills (and the omnibus bill the four have been rolled into).

They think we don’t see what they are doing. They claim they are representing the views of most Texans. They are not.

They must think we’re stupid.

Drug testing #TANF applicants is wrong. Here’s why!

By Terri Burke
Executive Director

A few days ago we posted our response on Facebook to a proposed law that would require drug testing of applicants for Temporary Assistance of Needy Families (TANF), which was endorsed by Gov. Perry and Lt. Gov. Dewherst. Our post drew a number of very spirited replies from supporters and non-supporters. To those who commented, thank you all for writing. Let me respond to some of your comments to emphasize a few points:

Halyi, There is no evidence welfare recipients use drugs at a higher rate than the rest of the population. When Florida tried this, over the 4 month period before the courts shut them down, the state lost $45,000 and discovered only 2.6 percent of the folks tested positive for drugs.

Jonathan, this drug test will only identify drug “use” not abuse. However much some of us may deplore any drug use, there is a difference between use and abuse. Moreover, the constitutional questions raised by mandatory government testing are far more problematic than testing by a private employer. This represents serious government overreach.

Robert, children of the occasional marijuana smoker are surely better off with that parent than being thrown into the Child Protective Services system (I don’t know where you live but search www.chron.com for some very scary stories about that if you haven’t seen them).

Johnathan, the average TANF monthly check is about $200, according to Gov. Perry. I don’t know much about drugs, but I doubt that buys very many.

Keilah, if you buy the argument that the taxpayers have a right to demand that those who receive taxpayer dollars be drug tested, then why aren’t we demanding drug testing of all the veterans, the senior citizens who receive Medicare and Social Security, farmers who get government subsidies, entrepreneurs who receive Texas Enterprise Funds from the governor’s office, and so on. My point is quite simple: we are making poverty a crime. We are going to drug test a group of people who differ from these others only because they may be poorer, they may be black, they may be brown – not because they are drug users.

I’m sorry we disagree on this but I hope you will continue to comment on our Facebook posts, receive our emails, and continue to challenge us when you think we should be. It is only through these dialogues that we get a better sense of the thinking of all Texans.

Our most fundamental right is in jeopardy

By Terri Burke
Executive Director

The day I cast my first vote, admittedly for losing candidates, I walked a little taller because I was certain that day I had become an adult.  To this day, my family may have to miss spending Thanksgiving together, but we always get together in person or, now, virtually, on Election Day. Simply put, for me, there is just no constitutional right more important than the right to vote. Without it, our Constitution is not worth the paper it is printed on.

That’s why I’m so excited to have been invited to hear Attorney General Eric Holder’s remarks about the Voting Rights Act of 1965 on Tuesday night at the LBJ Auditorium in Austin. The late president’s family will be there to hear General Holder talk about the importance of voting rights and Lyndon Johnson’s heroic leadership in getting the law enacted.

The Attorney General is expected to reiterate the importance of respecting and ensuring the voting rights of all Americans. In Texas, this means, fighting back against those who would shrink our democracy by restricting the right to vote.

We await a decision from the Department of Justice about the legality of Texas’ new Voter ID law under the Voting Rights Act. I trust that the justice department sees clearly the motives of those who would deny large groups of Texans their right to vote.  It would be funny if it weren’t so awful: our state ranks among the lowest (45th in 2008) in the nation in voter turnout. We ought to be thinking of ways to promote and ensure the right to vote; instead we are shamefully making it more difficult for people to exercise their constitutional right.  As I told the Texas Senate in January, this law is a solution in search of a problem. There is NO evidence of in-person voter fraud in Texas.

Our new Voter ID law, like efforts in at least six other states, is designed to keep people of color and those in lower income groups away from the polls.  Here’s why: it would require a registered voter who previously only had to present her voter registration card to now show a Texas drivers’ license, a Texas state ID card, a concealed handgun carry license, a U.S. military card or a U.S. passport.  Unable to show any of these, she may cast a provisional ballot, which will only be counted if she comes forward with the required ID within 6 days. (Small comfort, as our state has one of the lowest rates of cleared provisional ballots in the country. About eighty percent were rejected in 2008.)

If this law is allowed to stand, our state will have serious problems.  An expert on census and voting reviewed three demographic studies and concluded that hundreds of thousands of minority voters do not have the required identification. Nor will it be easy for them to get the IDs required to vote. Almost half of Texas’ 254 counties have drivers’ license offices with reduced hours or no motor vehicle office at all.

A person who lives in, let’s say, the Big Bend area of Texas where her county has no motor vehicles office, faces potentially insurmountable hurdles. First, she has to have a birth certificate ($22) or a marriage license ($71) if there has been a name change or a passport ($110) to get the state-issued ID.  Then, there is the cost of the trip to the drivers’ license office; in the case of the Big Bend resident, it’s about an hour and half to the nearest office in Alpine.  With gas prices so high, she could spend up to $85 for the roundtrip. And remember, our potential voter doesn’t drive: she has to find a friend or relative who does have a drivers’ license. And then there are the costs of lost wages. It’s like that advertisement says: The Cost of the Right to Vote in Texas? priceless.

Under this law Texans — particularly those who are elderly or have disabilities or are students or are voters of color or are low-income — will have their cherished constitutional right to vote restricted. That’s wrong, and we hope Attorney General Holder will put a stop to it.

Click on our voting rights action alert, and urge the Department of Justice to exercise its authority under the Voting Rights act and block this suppression measure.

Smart-on-crime: Keep non-violent drug offenders out of jail

By Terri Burke

According to the Houston Chronicle, Houston police miss the good ole days when they could slap a felony charge and lock people away for possession of trace amounts of crack cocaine.  The vice president of the Harris County Deputies’ Organization actually advocates throwing drug users behind bars for trace possession because “they” are the type of individuals who commit burglary and robbery. I didn’t realize Minority Report was about Houston.  I must have missed the part of the Constitution that permits police to arrest and jail individuals for crimes they have not yet committed.

HPD’s ire centers around a decision made by Harris County District Attorney Pat Lykos in January, 2010 when she decided the county would stop prosecuting trace drug crimes as felonies. The ACLU of Texas applauds her smart-on-crime decision, and hopes she sticks to her principles.

Why is this issue so important to Texas?

–          Cost: The Criminal Justice Coordinating Council estimates that since this policy has been implemented, there have been 400 fewer inmates in jail on any given day.   At a cost of between $45 and $65 per prisoner per day, this policy saves taxpayers between $6.5 and $9.4 million on an annual basis.  These resources would be better spent on efforts to decrease the occurrences of dangerous crimes that pose a threat to Texas, or to create more drug treatment centers that would help people get back on the right track.

–          Public health: To effectively end drug abuse, drug addiction should be treated as a public health issue instead of as a criminal issue. This is a simple fact. Treatment – not incarceration – lowers drug use.  In fact, states with higher rates of drug incarceration actually have higher rates of drug use. Without effective treatment, drug addicts, once released from jail, will likely end up back behind bars.

–          Institutional racism: On a national level, African Americans comprise 13 percent of the US population and 14 percent of drug users.  Yet, they make up 56 percent of those incarcerated for drug crimes.  In Texas, 8 out of 9 regional narcotic task forces search African Americans for drugs more often than they search whites –no wonder this racial discrepancy exists.

–          Community: Most drug users and addicts are non-violent offenders. And they are real people, with real families and real jobs.    Sending a non-violent parent with a drug problem to jail instead of treatment is detrimental to the family and the community.  More than half the people in Texas prisons are parents and sending first-time and non-violent offenders to jail instead of treatment further harms their children.  Children who have a parent in prison are five times more likely to commit crimes themselves. Some of these children also end up in the foster care system – at an additional expense to the taxpayer.  In addition, people with felony convictions have a much harder time finding work after they have done their jail time, which leads to struggling families and economically depressed communities.  It is better for society as a whole to treat first time and non-violent offenders than to incarcerate them.

We couldn’t agree more with State District Judge Michael McSpadden, who advocates for more drug treatment options and giving drug addicts a second chance.  The war on drugs has been an expensive failure and it is past time to change gears.

Terri Burke is the executive director of the ACLU of Texas, headquartered in Houston.

Case of Humberto Leal Isn’t About Death Penalty: It’s About Following the Rule of Law and the Safety of Americans Abroad

By Terri Burke
Executive Director

We’ve gotten some comments about our Community Action Network (CAN) email last week calling for a stay of execution for a Mexican national set to die today, July 7, in the Texas death chamber. I want to further explain our position and share why we feel it is so important for Texans and all Americans to heed this plea.

Although the ACLU does oppose the death penalty, the Leal matter is not about the pros and cons of the death penalty. Further, we agree that illegal actions and behaviors should be addressed and appropriate punishment meted out without regard for a person’s status in this country. We believe in the Rule of Law; therefore, if we as a nation, as a people, begin to behave like the lowest common denominator, then we become no better than those we would judge and punish.

Unlike many other nations, in the U.S., every criminal defendant – citizen or non-citizen – has a right to an attorney. An international treaty, the Vienna Convention on Consular Relations, signed in 1963 by the U.S. and 159 other nations, obligates us to ensure that citizens of other countries arrested in the U.S. know they have the right to contact their embassies. U.S. citizens have reciprocal rights in every other signatory country. Given the state of the world today, we don’t want to appear to be thumbing our noses at an international agreement, putting Americans at risk while traveling abroad.

In 2004, the International Court of Justice (ICJ) held that Mr. Leal was entitled to a hearing on the consular rights violation in his case. President Bush, the U.S. Supreme Court, and the Obama Administration have all acknowledged that the United States is obligated to comply with ICJ’s decision. President Obama has asked that the Leal execution be stayed.

Congress has introduced legislation that would require implementation of the ICJ’s decision. The bill before Congress has the support of the Department of Justice, the Department of Defense, the Department of Homeland Security, and the Department of State.

Justice requires a stay of Mr. Leal’s execution while Congress acts to make sure we fulfill our obligations as a nation of laws, not of vengeance, privilege, or special interests.