LGBT rights in Arkansas

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Map of USA AR.svg
StatusLegal since 2002
(Picado v. Jegley)
Gender identityAltering sex on birth certificate requires sex reassignment surgery
Discrimination protectionsNone statewide
Family rights
Recognition of relationshipsSame-sex marriage legal since 2014
AdoptionLegal since 2011

Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of Arkansas may face some legal challenges not experienced by non-LGBT residents. Same-sex sexual activity is legal in Arkansas. Same-sex marriage in Arkansas became briefly legal through a court ruling on May 9, 2014,[1] subject to court stays and appeals. In June 2015, the U.S. Supreme Court ruled in Obergefell v. Hodges that laws banning same-sex marriage are unconstitutional, legalizing same-sex marriage in the United States nationwide including in Arkansas. Discrimination on the basis of sexual orientation and gender identity is not banned statewide in Arkansas.

Law regarding same-sex sexual activity[edit]

In 1838, Arkansas instituted the first statute against homosexual activity with a provision which read: "Every person convicted of sodomy or buggery will be imprisoned in the state penitentiary for not less than one year nor more than 21 years." This legislation was subsequently amended in 1977 to penalize only homosexual acts, or sexual acts occurring between humans and animals; but in effect decriminalized sodomy by making it a Class A misdemeanor.

In 2002, the Arkansas Supreme Court in Picado v. Jegley found that the state statute that made sexual relations between people of the same gender a criminal act was unconstitutional because the law violated a fundamental right to privacy and failed to provide the equal protection of the laws.[2][3]

On April 4, 2005, the Arkansas House of Representatives passed, by a vote of 85-0 in favor, SB 984, a bill repealing laws against sexual acts among same-sex couples. On April 7, 2005, the Arkansas State Senate passed the bill, by a vote of 35-0 in favor. Governor Mike Huckabee signed the bill into law. It went into effect on April 12, 2005.[4]

Recognition of same-sex relationships[edit]

Arkansas bans same-sex marriage in both state statute and its state Constitution. These provisions have been ruled unconstitutional and are no longer enforced.[1]

On May 9, 2014, Sixth Judicial Circuit Judge Chris Piazza issued a preliminary ruling in Wright v. Arkansas that found the state Constitution's ban on same-sex marriage unconstitutional. On May 15, he issued a final ruling that enjoined enforcement of the state's statutes prohibiting the licensing and recognition of same-sex marriages as well. The Arkansas Supreme Court stayed his ruling while it heard the appeal in the case.[5]

In another lawsuit in federal court, Jernigan v. Crane, on November 25, 2014, Judge Kristine G. Baker found the state's ban on same-sex marriage unconstitutional and stayed her ruling pending appeal.[6]

On June 26, 2015, the U.S. Supreme Court ruled in Obergefell v. Hodges that bans on same-sex marriage are unconstitutional, effectively legalizing same-sex marriage in the United States. Since then, same-sex couples in Arkansas have been allowed to legally wed.[7]

Adoption and parenting[edit]

Arkansas voters approved a ballot measure in November 2008, effective January 1, 2009, to prohibit by statute cohabiting couples who are not in a recognized marriage from adopting and providing foster care.[8] On April 7, 2011, in Arkansas Department of Human Services v. Cole, the Arkansas Supreme Court unanimously found that the measure "fails to pass constitutional muster" because it "directly and substantially burdens the privacy rights of 'opposite-sex and same-sex individuals' who engage in private, consensual sexual conduct in the bedroom by foreclosing their eligibility to foster or adopt children, should they choose to cohabit with their sexual partner."[9]

Birth certificates[edit]

In December 2015, a circuit judge found Arkansas' birth certificate law unconstitutional because it unfairly discriminated against same-sex couples. The law allowed the heterosexual non-biological father to be listed on his child(ren)'s birth certificates but refused that right for the homosexual non-biological mother. The state appealed the ruling to the Arkansas Supreme Court. In December 2016, the state's Supreme Court ruled that the birth certificate law was constitutional. Supreme Court Judge Jo Hart wrote: "It does not violate equal protection to acknowledge basic biological truths".[10] On June 26, 2017, the U.S. Supreme Court ruled, in Pavan v. Smith, that the Arkansas Supreme Court's ruling was in clear violation of Obergefell v. Hodges and struck down the state's birth certificate law.[11] In October, the state Supreme Court acknowledged that the state law was unconstitutional and ordered that same-sex couples be treated equally in the issuance of birth certificates.[12][13]

Discrimination protections[edit]

Map of Arkansas counties and cities that have sexual orientation anti–employment discrimination ordinances
  Sexual orientation and gender identity with anti–employment discrimination ordinance
  Sexual orientation and gender identity solely in public employment
  Sexual orientation in public employment
  Does not protect sexual orientation and gender identity in employment

Arkansas law does not address discrimination based on gender identity or sexual orientation.[14]

The capital city of Little Rock and several other cities, including Conway, Hot Springs, and North Little Rock as well as Pulaski County, prohibit discrimination on the basis of sexual orientation and gender identity in public employment.[15] The cities of Marvell and Springdale have similar policies but only ban sexual orientation-based discrimination.[16]

The city of Eureka Springs prohibits discrimination on the basis of sexual orientation and gender identity in public and private employment.[17] In February 2017, the Arkansas Supreme Court struck down Fayetteville's anti-discrimination ordinance because it included sexual orientation and gender identity as protected categories. The court found that the ordinance contravened the Intrastate Commerce Improvement Act (see below).[18] Following the ruling, Fayetteville City Attorney Kit Williams said he would focus on challenging the constitutionality of the act.

Intrastate Commerce Improvement Act[edit]

On February 9, 2015, the Arkansas State Senate passed, with 24 voting in favor, 8 voting against, and 2 not voting, the Intrastate Commerce Improvement Act, a bill that prohibits counties, municipalities or other political subdivisions in the state from adopting anti-discrimination ordinances that creates a protected classification or prohibits discrimination on a basis not contained in state law. On February 13, 2015, the Arkansas House of Representatives passed, with a 58 in favor, 21 voting against, 14 not voting, and 7 voting present. An emergency clause to the bill was rejected by the House.[19]

Hate crime law[edit]

Arkansas has no hate crime statute that attaches penalties to criminal convictions when motivated by bias,[20] but a state statute does allow victims to sue for damages or seek court-ordered relief for acts of intimidation, harassment, violence, or property damage "where such acts are motivated by racial, religious, or ethnic animosity", not sexual orientation or gender identity.[21] However, sexual orientation and gender identity are covered under the U.S. federal hate crime law since Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act was signed into law in October 2009.

Gender identity and expression[edit]

Arkansas law permits transgender people born in Arkansas to amend their birth certificates upon receipt of a court order verifying that they have undergone sex reassignment surgery and that their names have been changed.[22][23][24]

Besides male and female, Arkansas identity documents are available with an "X" sex descriptor. The Arkansas Department of Finance and Administration has issued such documentation since December 2010.[25]

Public opinion[edit]

A 2017 Public Religion Research Institute (PRRI) poll found that 52% of Arkansas residents supported same-sex marriage, while 38% opposed it and 10% were unsure.[26]

The same poll found that 64% of Arkansans supported an anti-discrimination law covering sexual orientation and gender identity, while 27% were opposed.[27] Furthermore, 53% were against allowing public businesses to refuse to serve LGBT people due to religious beliefs, while 41% supported allowing such religiously-based refusals.[28]

Summary table[edit]

Same-sex sexual activity legal Yes (Since 2002)
Equal age of consent Yes
Anti-discrimination laws in employment No/Yes (Some cities and counties only)
Anti-discrimination laws in the provision of goods and services No/Yes (Some cities only)
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) No/Yes (Some cities only)
Same-sex marriages Yes (Since 2015)
Stepchild adoption by same-sex couples Yes (Since 2011)
Joint adoption by same-sex couples Yes (Since 2011)
Gays, lesbians and bisexuals allowed to serve openly in the military Yes (Since 2011)
Transgender people allowed to serve openly in the military Yes (Since 2018)
Right to change legal gender Yes (Requires sex reassignment surgery)
Third gender option Yes (Since 2010)
Access to IVF for lesbians Yes
Conversion therapy banned for minors No
Commercial surrogacy for gay male couples Emblem-question.svg
Men who have sex with men allowed to donate blood Yes/No (Since 2015; one year deferral period)

References[edit]

  1. ^ a b "Arkansas judge strikes down state ban on same-sex marriage". Reuters. May 9, 2014. Retrieved May 9, 2014.
  2. ^ "Arkansas Sodomy Law". Hrc.org. Retrieved November 2, 2013.
  3. ^ American Psychological Association: "Jegley v. Picado 80 S.W.3d 332", accessed April 7, 2011
  4. ^ SB984
  5. ^ "Gay marriage on hold in Arkansas following new ruling". Time. May 16, 2014. Retrieved May 17, 2014.
  6. ^ Snow, Justin (November 25, 2014). "Federal judge strikes down Arkansas same-sex marriage ban". Metro Weekly. Retrieved November 25, 2014.
  7. ^ US Supreme Court rules gay marriage is legal nationwide BBC News
  8. ^ National Conference of State Legislatures: "Same-Sex Marriage on the 2008 Ballot," November 6, 2008, accessed April 16, 2011
  9. ^ Metroweekly: Chris Geidner, "Arkansas High Court Strikes Down State's 2008 Adoption Ban," April 7, 2011 Archived April 11, 2011, at the Wayback Machine, accessed April 7, 2011
  10. ^ Arkansas Supreme Court blocks birth certificates for same-sex couples Reuters
  11. ^ Supreme Court upholds same-sex parents' birth certificate rights
  12. ^ "Arkansas Supreme Court orders gender neutral treatment of parents on birth certificates". Arkansas Times. October 19, 2017.
  13. ^ "Arkansas high court: State must change birth certificate law". WREG.com. October 20, 2017.
  14. ^ "Arkansas Non-Discrimination Law". Hrc.org. March 9, 2007. Retrieved November 2, 2013.
  15. ^ "Municipal Equality Index" (PDF). Human Rights Campaign. Retrieved November 21, 2013.
  16. ^ MEI 2018: See Your City’s Score
  17. ^ Eureka Springs quickly passes anti-prejudice law
  18. ^ Arkansas Supreme Court Strikes Down Local Anti-Discrimination Law
  19. ^ SB202 - TO AMEND THE LAW CONCERNING ORDINANCES OF CITIES AND COUNTIES BY CREATING THE INTRASTATE COMMERCE IMPROVEMENT ACT AND TO DECLARE AN EMERGENCY.
  20. ^ "Arkansas Hate Crimes Law". State Laws & Legislation. Human Rights Campaign. Retrieved January 26, 2013.
  21. ^ "Hate Crime Laws". Partnersagainsthate.org. Retrieved January 26, 2013.
  22. ^ "Arkansas Birth Certificate Law: Gender Identity Issues". Hrc.org. March 10, 2007. Retrieved November 2, 2013.
  23. ^ Gerdes, Stefanie (March 27, 2017). "Arkansas could make it 'illegal to be transgender' this week". Gay Star News. Retrieved January 29, 2018.
  24. ^ Zekis, Andrea (May 16, 2017). "Advocates in Arkansas fought back several anti-trans bills - and why that matters". Medium. Retrieved January 29, 2018.
  25. ^ Arkansas Has Been Offering A Nonbinary Gender Option On State IDs For Years, HuffPost, 17 October 2018
  26. ^ Public opinion on same-sex marriage by state: Arkansas, PRRI – American Values Atlas
  27. ^ Public opinion on LGBT nondiscrimination laws by state: Arkansas, PRRI – American Values Atlas
  28. ^ Public opinion on religiously based refusals to serve gay and lesbian people by state: Arkansas, PRRI – American Values Atlas