State Courts and the Rights of LGBT People and People Living with HIV

Find Your State

Know the laws in your state that protect LGBT people and people living with HIV.

The courts of all 50 states and the U.S. territories have broad authority to uphold or restrict the rights of LGBT people and people living with HIV. In addition to interpreting the meaning of state laws and constitutional provisions that have tremendous consequences for individual rights, state courts handle more than 95 percent of all judicial business that most directly impacts people’s lives—including nearly all family cases and criminal matters.1

The stakes are high for everyone. Despite remarkable legal, political and social advances, LGBT people and people living with HIV still face significant challenges—including ongoing employment discrimination, unfair state parenting laws, unequal health care access and abuses by law enforcement in the criminal legal system. Members of the LGBT community often face multiple and intersecting forms of discrimination based on not only their sexual orientation, gender identity or HIV status, but also race, national origin, socioeconomic disadvantage or immigration status. Many members of our community look to our state courts and the 30,000 state court judges to administer justice.

A. The Freedom to Marry Began with State Courts

Until the U.S. Supreme Court struck down all remaining marriage bans in Obergefell v Hodges, state courts played a critical role in the fight for the freedom to marry. At the beginning, state supreme courts outpaced federal courts and legislatures in affirming the rights of same-sex couples to marry. The first rulings in favor of the freedom to marry in Massachusetts, California, Connecticut and Iowa were all issued by state courts interpreting state constitutional guarantees.2

The justices on state high courts that ruled in favor of the freedom to marry have something in common: They were all appointed. The fact that the justices did not have to face the voters in direct contested elections, afforded these high courts the independence required to impartially evaluate the merits of these case. Unfortunately, judicial retention elections left some judges vulnerable to backlash.

Plaintiffs in Lambda Legal’s Iowa marriage case, from the left, Trish Varnum, Kate Varnum, Jason Morgan and Chuck Swaggerty.

One of the early victories in the fight for equal marriage rights came from the Iowa Supreme Court, where the justices, who were appointees of both Republican and Democratic governors, looked at the law and the facts presented and ruled that Iowa’s marriage ban was at odds with the guarantee of Equal Protection in Iowa’s Constitution.3 However, Iowa justices have to stand for retention elections. In the year following Iowa’s marriage decision, antigay groups, including the National Organization for Marriage and the American Family Association, poured nearly $1 million dollars into a campaign which resulted in the ousting of three justices as punishment for the marriage ruling, which was unanimous. The anti-retention effort urged Iowa voters to throw out “activist judges” for doing the very thing that judges are supposed to do: decide tough cases and uphold constitutional rights even if those decisions may not be politically popular.

A Closer Look at Marriage Equality in States with Elected High Court Judges

Chief Justice Roy Moore, who was elected on an anti-marriage equality platform, predicted that the Supreme Court marriage ruling would "cause the destruction of our country."

After the Supreme Court’s ruling in U.S. v Windsor (2013), which found Section 3 of the Defense of Marriage Act to be unconstitutional, federal judges in deeply “red” states, who are appointed and have lifetime tenure, ruled in favor of the freedom to marry in quick succession. In contrast, challenges to discriminatory marriage bans in conservative states with elected judges were met with hostility or delay. Even after Obergefell, several elected judges in southern states suggested a willingness to defy the rule of law.4

 

The justices of the Alabama Supreme Court, who are elected in expensive partisan races, told probate judges in the state to defy a federal court order which granted same-sex couples the right to marry. Alabama’s Chief Justice Roy Moore, who is notoriously antigay, cited scripture in a 2002 judicial opinion in a child custody case that shockingly referred to lesbian parents as “immoral,” “detestable,” “an inherent evil,” and “inherently destructive to the natural order of society.” After the U.S. Supreme Court ruling in Obergefell in 2015 which made marriage equality the law of the land, Alabama Supreme Court Justice Tom Parker suggested on conservative talk radio that a state supreme court ruling “would be a proper organ” for resisting the decision. Chief Justice Roy Moore, who was elected on an anti-marriage equality platform, predicted that the ruling would “cause the destruction of our country” and would generate a “great backlash.”

In 2011, a same-sex married couple seeking a divorce ended up before the Supreme Court of Texas after the state contested their petition for divorce. The justices did not even hear oral argument until November 2013. The court then sat on the case until 2015, when one of the parties ultimately died—still trapped in a legal status and waiting for justice. The nine Republican justices on the Texas Supreme Court were elected in partisan contests and some of their websites tout endorsements from groups like Texas Values Voters, Texas Right to Life and Tea Party Patriots.

In 2014, Arkansas Supreme Court justices, who are elected, heard oral argument in a challenge to the state’s discriminatory marriage ban. They held off on issuing an opinion until two new justices joined the court several months later. Then a majority of the court inexplicably ruled that adding justices required a new lawsuit to figure out who should hear the case. This caused two justices to step down from the case over their frustration and ethical concerns with the decision to delay. Later, when Justice Donald Corbin retired from the bench, he admitted that he and his colleagues had voted to strike down the state’s marriage ban in 2014. But the justices held the case, leaving couples in legal limbo until the U.S. Supreme Court ruling, when the Arkansas justices quietly dismissed the case as moot.

In July 2015, the Louisiana Supreme Court dismissed a state court case involving the rights of a married samesex couple. This was a good result; the Supreme Court’s Obergefell decision had resolved the issues in the case.5 But one lone Justice dissented. Casting his duty to support the rule of law aside, Justice Jefferson Hughes suggested that he would not follow the Supreme Court’s ruling. Justice Hughes went on to inject a bit of shocking antigay bias into his dissent, noting: “The most troubling prospect of same sex marriage is the adoption by same sex partners of a young child of the same-sex.” Justice Hughes practically promised this kind of action during his campaign TV ad, in which he stated that he was “pro-life, pro-gun, pro-traditional marriage.”

In November 2015, the Mississippi Supreme Court narrowly granted a divorce to a same-sex couple based on the Supreme Court’s ruling in Obergefell.6 Four of the nine Justices dissented. One Justice wrote: "When five members of the [U.S. Supreme] court hand down an order that four other members believe has 'no basis in the Constitution,' a substantial question is presented as to whether I have a duty to follow it." Another Justice noted that the idea that the U.S. Constitution means what a majority of the Supreme Court says it means "is not necessarily true and should be subject to questioning." One of the justices who joined the majority to grant the divorce admitted, “As an elected member of this Court, the politically expedient (and politically popular) thing for me to do is to join my colleagues' separate statements and quote the dissenters in the Obergefell case. However, if I did, in my opinion, I would be in violation of the oath of office I now hold.”

B. Protecting Relationships and Families

After Obergefell, virtually all courts with pending marriage cases moved promptly to implement the ruling. Still, there is so much important work that remains in order to secure the rights, responsibilities, benefits and accurate documents for all family relationships of LGBT people and their children. Parents in many states remain legally unrecognized or severely disadvantaged in state court fights with ex-spouses, ex-partners or other relatives. Some same-sex couples continue to encounter discriminatory obstacles in their efforts to obtain access to two-parent birth certificates or accurate death certificates and turn to state courts for resolution.

Because family law is almost exclusively the domain of the states, state courts play an important role in the advancement or weakening of protections for LGBT families. State courts are also critical to efforts to expand legal recognition of parent-child relationships, based on the actions and intentions of parents in creating and raising children rather than on biological connections alone.

State Court Protection of Families in Iowa

Even after the Iowa Supreme Court issued a unanimous ruling in favor of marriage equality, families headed by same-sex couples still had to fight for the marital presumption of parentage. In 2010, married parents Heather and Melissa MacKenzie sued the Iowa health department after the agency refused to issue a birth certificate for their daughter MacKenzie that listed both mothers as parents.The Iowa Supreme Court eventually ordered the state to provide accurate two-parent birth certificates to all children born to lesbian married parents. Iowa Supreme Court Justices are appointed and stand for retention elections.8

Alabama Supreme Court Refuses to Recognize Adoption

In 2015, the Alabama Supreme Court refused to recognize a lesbian mother as an adoptive parent of her three children even though both women raised the children from birth and consented to the adoption.9 The court ruled that Alabama does not have to recognize second-parent adoptions granted by Georgia courts, breaking with more than a century of precedent requiring states to honor court judgments from other states. The ruling was reversed by the U.S. Supreme Court. Alabama Supreme Court Justices are elected in partisan races.

C. Fighting for Transgender Rights

Donisha McShan, a woman who is transgender, was housed with men and addressed with male pronouns. Lambda Legal told facility officials about state and federal laws prohibiting discrimination against transgender people incarcerated in government-funded facilities. The halfway house issued McShan an apology and changed its policies.

Transgender people are often the most vulnerable members of our community. Transgender people face harassment and discrimination in areas such as employment, health care, schools, housing, restroom access, foster care, family court matters and detention facilities and prisons. State courts routinely handle cases involving transgender people. In the context of parenting, many state courts have correctly treated custody cases involving transgender parents like any other child custody determination—by focusing on standard factors such as parental skills and the best interests of the child. However, some courts have lacked understanding about the need for a transgender parent’s transition and as a result transgender parents have lost access to their children based solely on their gender identity.

On identity documents, some states and agencies require that transgender people obtain a state court order to make gender marker changes. Many of the jurisdictions that administer birth certificates require a court order to change or amend them. When it comes to the routine process of filing papers for a name change, transgender people frequently have to deal with courts asking invasive questions about gender transition.

Transgender Students in Maine

In Doe v. Regional School Unit, the Maine Supreme Court held that a transgender girl had the right to use the girls’ restroom at school because her psychological well-being and educational success depended on her transition.10 The school, in denying her access, had “treated [her] differently from other students solely because of her status as a transgender girl.” The court determined that this was a form of discrimination. Justices on the Maine Supreme Court are appointed and never stand for election.

Transgender Discrimination in Illinois Courts

In 2007, the Illinois Supreme Court held that Duann Turner, a 52-year-old low-income transgender woman represented by Lambda Legal, was denied access to the judicial process. The Will County Circuit Court had rejected her request that a $450 fee related to her name change petition be waived, declaring, “I am not spending the county’s money on something like this.” The Turner case highlights how LGBT discrimination in the judicial system is pervasive and harmful to LGBT people and to the integrity of the courts. This discrimination is rarely combated; leaving unchecked prejudicial statements, harsher sentencing for LGBT defendants and irrelevant consideration of a person’s sexual orientation, gender identity or HIV status. Illinois Supreme Court Justices are elected in partisan elections.

D. Achieving Employment Fairness

Lambda Legal client Kimberly Hively and Lambda Legal Counsel and Employment Fairness Program Strategist Greg Nevins. In 2015, Lambda Legal urged the U.S. Seventh Circuit Court of Appeals to reverse a lower court ruling and allow Hively to present her case alleging that Ivy Tech Community College, where she worked as an instructor for 14 years, denied her full-time employment and promotions, and eventually terminated her employment, because she is a lesbian.

Employment fairness issues are a core aspect of the lives of LGBT people and people with HIV. Most people spend a large part of their time working. They depend on their jobs to support themselves and their families and to gain access to health care and other benefits. A number of cities, counties and states have passed laws that help protect LGBT people and people living with HIV from employment discrimination by explicitly covering sexual orientation and gender identity. In addition, many employers and union contracts have nondiscrimination protections for workers. This means that LGBT people can make a valid legal claim under state law. Many complaints are handled by state or local civil rights enforcement agencies, but state courts can also play a role in adjudicating these disputes.

Access to Survivor Benefits in Alaska

In 2014, Lambda Legal secured a victory for client Deborah Harris when the Alaska Supreme Court unanimously ruled that the State’s exclusion of lesbian and gay partners from survivor benefits violated the constitutional guarantee of equal protection.

Kerry Fadely, who worked at Anchorage’s Millennium Hotel, was shot and killed in 2011 by a disgruntled former employee.11 Alaska’s workers’ compensation law requires employers to provide survivor benefits to spouses of people who die from work-related injuries. Yet Kerry’s same-sex partner, Deborah Harris, was barred from accessing legal protections for survivors, as at the time, Alaska did not allow same-sex couples to marry. Deborah sued. In 2014, the Alaska Supreme Court ruled unanimously that committed same-sex couples must have equal access to the law’s protection.12 Alaska Supreme Court Justices are appointed and stand for retention elections.

Prohibiting Public Employers from Providing Benefits

In 2004, Michigan adopted a discriminatory constitutional ban on marriages by same-sex couples. Shortly after its passage, a lawsuit was filed to establish that the amendment didn’t restrict public employers from providing benefits to domestic partners. In 2008, the Michigan Supreme Court ruled by a vote of 5-2 that the state constitutional amendment did prohibit public employers from doing so.13 This case effectively prohibited recognition of civil unions, domestic partnerships and other forms of relationship recognition by state and local governments. Michigan Supreme Court Justices are elected in nonpartisan races.

E. Defending People Living with HIV

After three decades, the HIV epidemic in the U.S. continues to have a devastating impact on gay and bisexual men, transgender women and in many communities of color. People living with HIV continue to face discrimination in the workplace, denial of services, denial of access to long-term care facilities and violations of privacy rights. People with HIV also have to navigate uninformed, outdated and hostile HIV criminalization laws. Such discrimination and marginalization undermines the rights of all LGBT people.

If a person living with HIV is accused of violating criminalization laws, it is in state court that they will have to fight it. Most criminal cases involve violations of state law and are tried in state court. Thirty-nine states have HIV-specific criminal statutes or have brought HIV-related criminal charges, resulting in more than 160 prosecutions in the United States in the past four years.

People living with HIV also turn to state courts to address discrimination in the workplace and in public accommodations based on the erroneous and outdated belief that people living with HIV present an immediate risk to the health and safety of others.

Iowa Reverses HIV Criminal Conviction.

In 2014, the Iowa Supreme Court set aside the conviction of Nick Rhoades, an Iowan with HIV who was initially sentenced to 25 years in prison, with required registration as a sex offender, after one sexual encounter with another man during which they used a condom.14 In reversing the conviction, the Court recognized that individuals with HIV and a reduced viral load as a result of effective treatment pose little risk of transmitting HIV. In so doing, the Court applied the law in light of current medical understanding of how HIV is and is not transmitted. The ruling made clear that an individual who takes precautions to prevent transmission should not be considered a criminal. Iowa Supreme Court Justices are appointed and stand for retention elections.

F. Securing the Rights of LGBTQ Youth

Numerous studies highlight the overrepresentation of LGBTQ youth and young adults in foster care, juvenile justice and runaway and homeless youth systems, where these youth are likely to interact with state courts. These young people are often particularly vulnerable because their experiences in and interactions with various institutions, including state courts, have a profound impact on the rest of their lives. In addition, state courts hear cases involving LGBTQ youth and family members who encounter discrimination, harassment and other denials of their rights in schools, foster care, juvenile and adult criminal justice systems and immigration systems.

State courts have been critical in the fights to protect LGBTQ youth from bullying and harassment in schools; to secure speech rights in schools and to create safe and inclusive schools through the formation of gay-straight or gender and sexuality alliances. In most states, a juvenile court hears cases for all youth younger than 18 charged with a law violation. In 2013, juvenile courts disposed of one million cases.

Students Protected Against Bullying in New Jersey

L.W., a student in the Toms River Schools in New Jersey, was subjected to antigay harassment and bullying by other students based on his perceived sexual orientation. The harassment increased in frequency and severity as he progressed through school and eventually became so severe that he transferred to another school district. After many of the incidents, L.W. and his mother reported the problems to the school’s administration, which took little or no action. In 2007, the New Jersey Supreme Court, in a unanimous decision, ruled that if a school is aware or should be aware of harassment of students based on sexual orientation, it is obligated to act to end the harassment.15 New Jersey Supreme Court Justices are appointed and never stand for election.

G. The Experiences of LGBT People in Court

With the rights of LGBT people and their families at stake, it is imperative that cases are decided by judges who weigh the facts and apply the law without bias. Judges and attorneys have an ethical responsibility to make sure LGBT people and people living with HIV are treated fairly and respectfully in courts. But the reality falls far short of that ideal. As lawyers, litigants, defendants and jurors, LGBT individuals can face overt discrimination from state judges as well as more subtle discriminatory practices that have become prevalent in the judicial system.

In 2012, Lambda Legal, with the help of more than 50 supporting organizations, completed a national survey to understand how courts and other government institutions are protecting and serving LGBT people and people living with HIV. The results show some of the ways in which the promise of fair and impartial proceedings is compromised by bias against LGBT people and individuals living with HIV.

Nineteen percent (19%) of people who responded to the survey reported hearing a judge, attorney or other court employee make negative comments about a person’s sexual orientation, gender identity or gender expression.

Sixteen percent (16%) of respondents indicated that their own sexual orientation or gender identity was raised in court when it was not relevant.

Fifteen percent (15%) of respondents reported having their HIV status raised in court when it was not relevant.

As is often the case, respondents with multiple marginalized identities—for example, LGBT people who also have a low-income, are people of color or are disabled—reported significantly higher instances of discrimination. Significantly, only 27 percent of transgender people and 33 percent of LGBT people of color said that they “trust the courts.”

Other anonymous surveys conducted by judicial commissions and bar associations also found antigay bias and prejudice in courthouses around the country. These studies universally concluded that the majority of gay and lesbian courts users found courtrooms to be hostile environments, whether in criminal or civil cases.16

Transgender Discrimination in Oklahoma State Court

When Christie Ann Harvey, a transgender woman, sought a routine name change in Oklahoma state court, her petition was denied by Judge Bill Graves, who wrote in the decision that to grant a name change in this case would be “to assist that which is fraudulent.”17 He went on to write “It is notable that Genesis 1:27, 28 states: ‘So God created man in his own image, in the image of God created he him; male and female created he them. And God blessed them, and God said unto them, be fruitful, and multiply, and replenish the earth…’”18 When his decision was reversed by the Oklahoma Court of Appeals for abuse of discretion, Judge Graves flippantly remarked to the press, “I guess the guy gets to have his name changed.”19

 


 

1. Roy A. Schotland, New Challenges to Judicial Selection, 95 GEO.L.J.1077, 1084, (2007). All judges in New Mexico are initially appointed, face a contested partisan election for a full term, and then run in uncontested retention elections for additional terms. Ohio and Michigan have nonpartisan general elections, but political parties are involved with the nomination of candidates, who often run with party endorsements.

2. Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003); In re Marriage Cases, 43 Cal.4th757 (2008), Kerrigan v. Commissioner of Health, 289 Conn. 135 (Conn. 2008); Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009).

3. Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009).

4. Obergefell v. Hodges, 135 S. Ct. 1732 (2015).

5. Costanza v. Caldwell, 167. So. 3d 619 (La. 2015).

6. Czekala-Chatham v. State ex rel. Hood, 2015 Miss. LEXIS 114 (Miss. Feb. 24, 2015)

7. Gartner v. Iowa Deparment of Pub. Health, 830 N.W.2d 335 (Iowa 2013).

8. Id.

9. Ex parte E.L., 2015 Ala. LEXIS 110 (Ala. Sept. 18, 2015)

10. Doe v. Regional School Unit, 86 A.3d 600 (Me. 2014).

11. Harris v. Millennium Hotel, 330 P.3d 330 (Alaska 2014).

12. Id.

13. National Pride at Work, Inc. v. Governor of Michigan, 748 N.W.2d 524 (Mich. 2008).

14. Rhoades v. State, 848 N.W.2d 22, (Iowa 2014).

15. L.W. ex rel. L.G. v. Toms River Regional School Board of Education, 189 N.J. 381, 390 (N.J. 2007).

16. Joey L. Mogul, Andrea J. Ritchie and Kay Whitlock. Queer (In)Justice: The Criminalization of LGBT People in the United States, Boston: Beacon Press, 2011, pp. 72, 74.

17. Nolan Clay, Oklahoma Appeals Court Orders Name Change in Transgender Case, The Oklahoman, (Nov. 20 2012).

18. Id.

19. Id.

 

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