State Assaults on Lesbian and Gay Community

by Latifa Lyles, Development Planner

While activists push to repeal state sodomy and other laws that instill homophobia, progress continues at the state level through litigation as well as legislative action.

On April 20, 2001, in a strongly worded opinion emphasizing law enforcement officials’ duty to lesbian, gay, bisexual, and transgender crime victims, the Nebraska Supreme Court held a Richardson County Sheriff liable for his failure to protect Brandon Teena in 1993. Although still biologically a woman, Teena dressed and identified as a man. After Teena was raped, he reported the incident and the Sheriff’s Department failed to intervene. He was later killed by his rapists. Teena’s story was portrayed in the film "Boys Don’t Cry" and Hillary Swank won an Oscar for her performance as Teena in the film.

On March 23, 2001, an Arkansas circuit court judge overturned that state’s ban on consensual sex between adult, same-sex couples. Seven gay and lesbian plaintiffs sued the state, charging that the sodomy law violated the state constitution’s equal protection clause. The overturned law included punishment of up to one year in jail and a fine of $1,000, and did not apply to non-gay couples.

In Maryland a bill was recently signed into law to add "sexual orientation" to the state’s existing civil rights law.

Eleven states and the District of Columbia have passed basic civil rights measures that prohibit discrimination based on sexual orientation. These include: Minnesota, Nevada, Rhode Island, New Jersey, California, Massachusetts, Connecticut, Vermont, Wisconsin, Hawaii and New Hampshire. D.C. and Minnesota laws go further, specifying "gender identity" as a prohibited ground for discrimination.

Despite these and other strides, new legislation continues to assault the lesbian, gay, bisexual and transgender communities. Hundreds of hostile bills have been introduced this year. And antiquated sodomy laws still plague lesbian, gay, bisexual, and transgender individuals throughout the United States. In addition to marking lesbians and gay men as criminals, these laws are frequently used to deny employment, refuse child custody and visitation rights, and justify refusal to enact civil rights laws to bar discrimination based on sexual orientation. Sixteen states have sodomy laws that apply to both homosexual and heterosexual partners. Massachusetts currently prohibits “the abominable and detestable crime against nature,” which is interpreted as anal intercourse, and “unnatural acts,” which has been applied to both oral and anal sex. Texas is one of three states, along with Kansas and Oklahoma, that prohibits consensual sex acts between same-sex partners only.

Two Houston men, arrested, jailed overnight and convicted for having sex in the privacy of their home in September 1998, are petitioning the Texas Court of Criminal Appeals to review its March 2001 decision overturning a trial court's ruling that the state’s "Homosexual Conduct" law is unconstitutional.

The state legislatures and courts are crucial forums for activists’ efforts to dissolve harmful laws that discriminate on the basis of sexual orientation and to win civil rights protection. In the absence of federal law, organizing must continue state by state to eradicate homophobia and attain equal rights. Full equality will not be achieved until all sodomy laws are repealed and all sexual orientation discrimination is outlawed.