SB 17 could reasonably be expected to encourage and embolden licensed professionals to refuse to serve individuals due to religious objections to their identities, and to discourage licensing agencies from punishing those licensed professionals for such behavior.
The bill does not formally and explicitly confer upon licensed professionals an affirmative right to refuse to serve certain individuals, and it includes disclaimers stating that illegal discrimination would still be punished under the bill. Federal and Texas law already appear not to have definitive prohibitions against medical professionals' refusing to treat LGBT patients.
In March and April 2019, online reports asserted that Texas state legislators had voted for a bill that would allow medical professionals to refuse to treat LGBT patients for religious reasons.
On 26 March, for example, the website LGBTQ Nation published an article under the headline "Texas Republicans advance a bill that would allow doctors to refuse LGBTQ patients," which reported that:
A bill that would allow state-licensed professionals to refuse to serve LGBTQ people if they cite their religion has advanced out of committee in the Texas senate. Senate Bill 17 would prevent state licensing agencies from denying or revoking licenses from professionals – including doctors, lawyers, pharmacists, and even barbers – if they claim to be following a 'sincerely held religious belief.'
That article was shared widely on social media and prompted multiple inquiries from Snopes readers about its veracity.
What SB 17 says
Senate Bill 17 (SB 17) would impose restrictions on professional licensing bodies in the state of Texas, limiting their ability to hold individuals' "sincerely held religious belief" (or actions or statements they made based on such beliefs) against them in rendering decisions about whether to issue, renew, or revoke professional licenses.
Republican State Senator Charles Perry introduced SB 17 on 7 March, and four weeks later the Texas Senate voted 19-12 to pass the bill. The next day it was put before the House of Representatives committee for State Affairs, and as of 9 April it was still under consideration by the House of Representatives.
As of 3 April 2019, the text of the legislation stated the following:
Sec. 57.003. A state agency that issues a license or otherwise regulates a business, occupation or profession may not adopt any rule, regulation, or policy or impose a penalty that:
(1) limits an applicant's ability to obtain, maintain, or renew a license based on a sincerely held religious belief of the applicant; or
(2) burdens an applicant's or a license holder's(A) free exercise of religion, regardless of whether the burden is the result of a rule generally applicable to all applicants or license holders;
(B) freedom of speech regarding a sincerely held religious belief; or
(C) membership in any religious organization.
The bill would also allow licensed professionals (such as lawyers, doctors, nurses, etc.) to offer their religious beliefs as a defense in an administrative proceedings against them:
"Sec. 57.004. A person may assert that a state agency rule, regulation, or policy, or a penalty imposed by the agency, violates Section 57.003 as a defense in an administrative hearing or as a claim or defense in a judicial proceeding under Chapter 37, Civil Practice and Remedies Code ..."
It appears that in practice, this section in the legislation would have the effect seen in the following example: A physician is qualified to perform abortions, but declines to perform an abortion for a patient who approaches them due to the doctor's sincere religious objection to abortion.
If that would-be patient were to file a complaint against the doctor, and a review or disciplinary proceeding ensued in which there was, theoretically, the potential that the physician's license to practice medicine could be revoked, that physician would, under the legislation, be able to offer the fact that their actions were based upon a sincerely-held religious belief as a defense against that outcome.
The text of the bill also contains several conditions and stipulations, including:
- The religious belief defense cannot be used where an individual has committed a criminal offense or as been accused of sexual misconduct.
- The law would not allow a medical professional to withhold treatment which they are qualified to provide if that treatment is needed to prevent death or imminent serious injury.
- The law would not apply to first responders.
The bill was not exclusive to medical professionals, nor did it make any mention of the LGBT community, specify the kinds of actions that might be regarded as being grounded in a person's "sincerely-held religious belief," nor explicate how a licensing body might determine the sincerity of a claimed religious defense.
The text of the bill also alluded to the complexity of the broader legal and philosophical conflict between an individual's right to live in accordance with their religious faith and an individual's right not to be subjected to discrimination, stipulating that the bill would not "limit any right, privilege, or protection granted to any person under the constitution and laws of this state and the United States."
An important point is that the legislation would not guarantee that the "religious belief" defense would be successful in an administrative proceeding. During a 2 April Senate debate on SB 17, the bill's author, Republican State Senator Charles Perry, explained that the bill would only provide an additional "enumerated defense" against the revocation of a license, but that a licensing body could still proceed to take away an individual's license, notwithstanding their "sincerely-held religious belief" defense, if their actions constituted a violation of state or federal law or the requirements of their professional license.
Democratic State Senator José Rodriguez teased out that clarification in an exchange with Perry during the Senate debate on 2 April. (That exchange can be viewed here, starting at 1:33.00. The entire debate starts at 0:58.00):
Perry: ... This bill doesn't do anything to undermine existing state or federal law. So if it's against the law to discriminate -- and "discriminate" can include a lot of different things, based on religion or based on race or based on a whole host of enumerated items already -- then I'm in violation of federal and state law. Senate Bill 17 doesn't apply.
Rodriguez: I guess I'm having trouble understanding, then, the purpose of this defense.
Perry: It's an administrative defense.
Rodriguez: But it's intended to prohibit the agency from taking away your license because of your refusal to provide a service, isn't it?
Perry: No Sir. It's intended to provide a defense, and then the agency can decide, and if you want to take [the license] away [despite an] application of sincerely-held religious belief, then that's the agency's decision, and it would go to the next level [an appeal through the courts].
So according to the text of the bill, as well as clarification offered by its author, SB 17 would not permit acts of discrimination which were already illegal under federal or Texas law, or were a violation of a particular licensing agency's requirements.
Would SB 17 "allow doctors to refuse LGBTQ patients"?
The text of the bill itself does not actually explicitly confer upon doctors or other licensed professionals an affirmative right to refuse to serve anyone. Formally speaking, SB 17 does not do that. For that reason, LGBTQ Nation's headline claim that the bill would "allow doctors to refuse patients" is something of an over-simplification of the reality.
The next issue is whether the religious belief defense provides enough protection to licensed professionals that it effectively amounts to permission to refuse to serve or treat certain people -- a "license to discriminate," as the ACLU of Texas has described the provisions of SB 17.
Notwithstanding the fact that the law would not explicitly give doctors, for example, the right to refuse LGBT patients, a scenario in which they were assured that discriminating in this way would not lead to their licenses being revoked could quite reasonably be described as one which effectively permitted or allowed them to act in that way.
However, it's not clear that SB 17 would in fact grant such de facto permission. One section of the text states that the bill "may not be construed to ... limit any right, privilege, or protection granted to any person under the constitution and laws of this state and the United States."
This indicates that a licensed professional would not be protected from having their license revoked if their act of discrimination (refusal to serve) violated federal or state law, but they would be able to specifically cite their religious belief as the reason for their refusal to serve. As SB& 17's author Charles Perry said, "This bill doesn't do anything to undermine existing state or federal law."
However, to complicate matters further, it appears that federal and Texas state laws do not definitively prohibit the kind of discrimination described by LGBTQ Nation in the first place -- that is, a doctor's refusing to serve a patient due to religious objections to the patient's sexual orientation or gender identity.
Christy Mallory, Director of State Policy and Education Initiatives at UCLA's Williams Institute, told us by email that "Federal and Texas state laws do not explicitly protect people from being refused service based on their actual or perceived sexual orientation and gender identity. Texas state law does prohibit discrimination based on sex. A number of courts have interpreted the term 'sex' in non-discrimination laws to also prohibit discrimination based on sexual orientation and gender identity, so a court could interpret Texas’s public accommodations non-discrimination law to prohibit service refusals based on an individual’s sexual orientation or gender identity."
Title 3 of the Texas Occupations Code sets out the rights and obligations of licensed health professionals in the state, as well as the penalties and procedures related to misconduct. Nothing in those regulations prohibits a health professional from refusing to treat or serve an individual on the basis of the patient's perceived sexual orientation or gender identity. The code does not mention "sexual orientation," "gender identity," "gender" or any of the descriptors which make up the LGBTQ initialism.
We contacted a spokesperson for the Texas Medical Board seeking clarification on whether any rule that regulates the conduct of health professionals in the state could prevent them from refusing to treat an LGBT patient, but we did not receive a response in time for publication.
So if, as appears the case, the regulations and requirements specific to medical professionals in Texas do not prohibit them from refusing to treat someone based on an objection to the patient's sexual orientation or gender identity, and neither does federal law, then SB 17 would not "allow doctors to refuse LGBTQ patients," because doctors are already allowed to refuse LGBTQ patients.
In an effort to remove any ambiguity from the situation and definitively prohibit refusals to serve LGBT patients, Democratic State Senator José Menéndez proposed an amendment to SB 17 which would have stated that licensed professionals could not refuse to provide a service "based on the sexual orientation or gender identity of the person requesting the service." That amendment was voted down, 18-13.
Would SB 17 encourage doctors to refuse LGBTQ patients?
It's difficult to argue that the legislation itself would "allow" or "permit" a doctor to refuse to treat an LGBT patient, especially since it appears federal and Texas law already effectively allow such discrimination.
However, some activists have expressed concerns that introducing SB 17 could indirectly encourage and embolden religiously-motivated service refusals that target LGBT persons, as well as make it more complicated and difficult for licensing agencies to hold such behavior to account. Logan Casey, a policy researcher at the Movement Advancement Project think tank, outlined those concerns in an email, writing:
SB 17 would prevent state agencies and licensing boards from setting and enforcing the standards of how all Texans ought to be treated fairly and equally. In other words, it would tie the hands of those whose job it is to prevent discrimination whenever possible.
Because the bill would allow individuals to cite their religious beliefs as a reason to refuse service, no matter what their licensing board says is required for their job, SB 17 would effectively embolden discrimination in any state-regulated or -licensed profession, from barbershops and cab drivers to medical and mental health providers.
For example, a doctor could refuse to serve a patient based on the doctor’s religiously-based beliefs about marriage -- which could mean they could refuse to serve unmarried couples, same-sex couples, interfaith couples, and more. State licensed agencies in multiple states have also used similar laws to discriminate against people of different faiths who wish to serve as foster parents.
Furthermore, while the legislation would, according to its author Charles Perry, still give licensing agencies the ability to revoke professional licenses in the event of illegal acts of discrimination, it is reasonable to expect that SB 17 might discourage them from doing so.
SB 17 would allow a licensed professional such as a doctor or lawyer to put on record the fact that their actions were an expression of their sincerely-held religious beliefs. In the event that their license was revoked anyway, this could very plausibly strengthen that doctor or lawyer's case, if they decided to appeal the decision through the courts.
Under SB 17, they could argue to a judge that because they put on record the reasons for their behavior, the licensing agency had knowingly and explicitly violated their 1st Amendment right to freely express their religious beliefs, by revoking their license. This could set in motion a protracted or high-profile legal saga which invoked profound constitutional principles and could place the licensing agency under increased public scrutiny and even civil liability.
Rather than risk being exposed to those negative outcomes, the licensing agency might decide against revoking a license, or opt for a less severe punishment, thereby potentially creating a set of expectations which encourage license-holders to engage in religiously-motivated service refusals.
Finally, the introduction of SB 17 could also quite reasonably be expected to embolden religiously-motivated doctors, nurses, lawyers and others to engage in service refusals in the first place, where previously they might not.
Even if the bill would not necessarily innoculate professionals from the risk of having their licenses revoked, it could quite plausibly create a sense that their actions had been given an additional layer of protection. As Senator Perry said during the 2 April debate, SB 17 would add "one more tool in the tool chest."
That sense of emboldenment might be especially strong in the case of medical professionals' refusing treatment to LGBT patients, something which federal and Texas law does not appear to definitively prohibit in the first place.