RQ-0391-KP

Re

The Legislature authorized the Behavioral Health Executive Council to take disciplinary action against social workers who refuse to perform an act or service within the scope of their licenses solely because of the recipient’s age, sex, race, religion, national origin, color, or political affiliation.  The Council adopted a rule changing the word “sex” to “gender” and authorizing disciplinary action for refusal of service based on disability, sexual orientation, and gender identity and expression.  In doing so, the Council exceeded the authority granted to it by the Legislature by rewriting the language chosen by the Legislature and imposing additional restrictions in excess of the relevant statutory provisions.  A court would likely conclude that the rule is invalid to the extent that it is inconsistent with and exceeds the Council’s statutory authority.

No Texas statute prohibits discrimination based on sexual orientation or gender identity or expression, and the U.S. Supreme Court has emphasized that religious and philosophical objections to categories of sexual orientation are protected views and in some instances protected forms of expression under the First Amendment.  If the Legislature intends otherwise, it may expressly amend the statute to so provide. A Council rule prohibiting that expression conflicts with the longstanding constitutional protection for an individual’s free exercise of religion. 

While a social worker may not discriminate based on disability in contravention of state and federal law, the Council lacks statutory authority to discipline a licensee for discrimination based on disability.