THIS TEXAS LAW EXPLICITLY DISCRIMINATES AGAINST GAY MINORS.
Sex with a minor is a crime in all states. And this is true even if the individuals involved in the sexual activities are all minors. However, legislators recognize that minors engage in sexual activities at young ages. Therefore, to avoid criminalizing the behaviors of the very people the law intends to protect, the law provides an affirmative defense against prosecution if certain requirements are met. This affirmative defense is known as the “Romeo & Juliet defense.” The defense usually applies when the child is 13 years or older, the age gap between the “victim” and the “perpetrator” is not more than 3 years, and the sexual activity is consensual.
However, in Texas, this defense is only available if the minor(s) involved in the sexual activities are of the opposite sex.
And no, this is not the result of an oversight. Texas’s statutory rape law is its indecency with a child statute. The part of the statute that provides the affirmative defense explicitly reads, “It is an affirmative defense to prosecution under this section that the actor: was not more than three years older than the victim and of the opposite sex.” 
Neither is this a case where the legislature minced words. The part of the statute that criminalizes statutory rape explicitly reads, “A person commits an offense . . . whether the child is of the same or opposite sex . . .” If the legislature intended for the affirmative defense to apply to same-sex minor(s) it would have stated so just like it did in proscribing the offense.
Additionally, Texas law mandates that educational materials intended for children below 18 years emphasizes abstinence before marriage, and “must state that homosexual conduct is not an acceptable lifestyle . . .”
It is abundantly clear this Texas law intends to protect heterosexuals against prosecution for what would ordinarily qualify as statutory rape while leaving their gay counterparts open for prosecution. Under this law, a 19-year-old male who engages in sexual activities with a 16-year-old female will be protected from prosecution. However, a 19-year-old male who engages in similar conduct with a 16-year male can be prosecuted.
The consequences of a successful prosecution under this statute are immense for the defendant. S(he) faces up to 10 years in prison, a $10,000 fine, and has to register as a sex offender.
Texas lawmakers, Representative Dominguez and Senator Johnson have introduced bills to the Texas House and Senate to change this law. Neither bill has received a vote yet. But both bills ask for the part of the statute that requires individuals be of the opposite sex to be stricken out. Should these bills pass, heterosexuals and gay minors will receive equal treatment under Texas’s statutory rape law.
State legislatures have great latitude to make laws to protect the interest of their citizens. Therefore, the courts can only abolish unconstitutional laws. That is, if the court were to find that the law infringes on the right afforded to individuals under the state or federal constitution, the court can do away with the law. In this case, where a statute treats heterosexual minors differently from gay minors, the constitutional rights that are implicated are the equal protection clause and the due process clause under the 14th amendments.
For example, Kansas had a similar statue as Texas. Kansas’s statutory rape law provided an affirmative defense only if the persons involved were members of the opposite sex. In 2005, the Kansas supreme court ruled State v. Limon to invalidated this part of the law as a violation of the equal protection clause of the 14th amendment.
Another way that laws that discriminate against gay individuals can be invalidated is through the due process clause of the 14th amendment. For example, in the landmark case, Lawrence v Texas, the United States Supreme Court recognized the privacy interest protection afforded to gays under the due process clause of the 14th amendment. There, the court ruled that the states could not punish consensual sexual intercourse between two gay men in the privacy of their homes. However, Lawrence involved two adults whereas statutory rape laws involve at least one minor. In the majority opinion from Lawrence, the court stated, “this case does not involve minors … “ in emphasizing why the state could not interfere with the privacy interest of gay individuals. Other lower courts have interpreted this statement to mean the Court intended for its ruling in Lawrence to apply only to adults. And because the courts have recognized the scope of permissible regulation to be broader for minors than adults in areas of sexual mores, the court’s ruling in Lawrence has not been extended to minors.
The equal protection clause remains the only viable path to abolishing this discriminatory law from Texas. But there is yet to be a successful challenge of this law under the equal protection clause in Texas. And this is mostly because states are held to very low levels of scrutiny in legislation that impacts an individual’s sexual orientation.