LGBT rights in Kentucky
|LGBT rights in Kentucky|
|Same-sex sexual activity legal?||Legal since 1992
(Kentucky v. Wasson)
|Gender identity/expression||Transsexuals may alter their birth certificate after sex-reassignment surgery|
|Discrimination protections||Sexual orientation and gender identity protections (see below)|
|Recognition of same-sex marriage performed in other jurisdictions on hold until March 20|
|Kentucky Constitutional Amendment 1 limits marriage to one man and one woman, also prohibits non-marriage same-sex unions|
|Adoption||Single homosexuals may adopt|
Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. commonwealth of Kentucky face some legal challenges not experienced by non-LGBT residents. Same-sex sexual activity is legal in Kentucky. Same-sex couples and families headed by same-sex couples are not eligible for all of the protections available to opposite-sex married couples. On February 12, 2014, a federal judge ruled that the state must recognize same-sex marriages from other jurisdictions, a ruling that is on hold until March 20.
Like a number of Southern states in the U.S., Kentucky has generally been seen as one of the most socially conservative states, with recent polls indicating that only 35 percent of polled Kentuckians support same-sex marriage, although support has increased in recent years. Several cities in the state prohibit discrimination in employment, housing, and accommodations on the basis of sexual orientation and gender identity. The Louisville-based Fairness Campaign, founded in 1991, is the state's oldest and largest LGBT advocacy organization in operation. In 2008, a Fairness Coalition was formed to collectively advance LGBT anti-discrimination protections in the commonwealth; its members are the American Civil Liberties Union of Kentucky, Fairness Campaign, Kentucky Commission on Human Rights, and Lexington Fairness.
Laws against homosexuality
In 1992 the Kentucky Supreme Court ruled the section of Kentucky's sodomy statute criminalizing consensual sodomy violated the Kentucky state constitution. In overturning the consensual sodomy statute (KRS 510.100) in the Kentucky v. Wasson case, the Kentucky Supreme Court decriminalized consensual sodomy. The statute remains on the books but remains unenforceable. In Lawrence v. Texas, the 2003 U.S. Supreme Court ruling overturning the remaining state sodomy laws, the U.S. Supreme Court further affirmed that such statutes violate the U.S. Constitution.
The former Kentucky statute criminalized consensual sexual relations between people of the same sex, even if conducted in private. Specifically, the law criminalized genital-oral (oral sex), genital-anal (anal sex), and anal-oral (rimming) sex – but only between partners of the same sex. Such sexual activities between mixed-sex (male-female) couples were legal. Such conduct was a misdemeanor punishable by up to 12 months in jail and a fine of up to $500. Solicitation of same was also a misdemeanor, punishable by up to 90 days in jail and a fine of up to $250.
Historically, Kentucky's sodomy statutes had changed over time. The 1860 sodomy statute criminalized anal penetration by a penis and applied to both male-female couples and male-male couples. Because the law focused exclusively on penile-anal penetration, consensual sex between women was technically legal in Kentucky until 1974. In fact, in 1909 the Kentucky Supreme Court issued a ruling in Commonwealth v. Poindexter involving two African-American men arrested for consensual oral sex. In this decision the court upheld that the then current sodomy law did not criminalize oral sex but only anal sex.
In 1974 Kentucky revised its statutes as part of a penal code reform advocated by the American Law Institute. While the American Law Institute urged states to decriminalize consensual sodomy and other victimless crimes, the Kentucky legislature chose to decriminalize anal sex involving male-female couples but to broaden the new statute to criminalize anal-genital, oral-genital, and oral-anal sexual contact involving same-sex couples (both male-male and female-female couples). Thus, the 1974 revised statute decriminalized consensual anal sex for mixed-sex couples but expanded criminalization of sexual acts to include both male and female same-sex couples. Kentucky also reduced consensual sodomy from a felony to a misdemeanor in 1974. It was this final remaining consensual sodomy statute, which criminalized only same-sex behavior, which was ruled unconstitutional by the Kentucky Supreme Court in Kentucky v. Wasson in 1992.
Recognition of same-sex relationships
On November 9, 1973, the Kentucky Court of Appeals ruled in Jones v. Hallahan that two women were properly denied a marriage license based on dictionary definitions of marriage, despite the fact that state statutes do not restrict marriage to a female-male couple. Its decision said that "in substance, the relationship proposed ... is not a marriage."
Kentucky voters adopted a constitutional amendment in November 2004 that defined marriage as the union of a man and a woman and prohibited the recognition of same-sex relationships under any other name. Similar restrictions appear in the state statutes as well.
Kentucky has extended hospital visitation rights to same-sex couples through a designated visitor statute.
Love v. Beshear
On July 26, 2013, Gregory Bourke and Michael Deleon, who were married in Ontario, Canada, in 2004, filed a lawsuit, Bourke v. Beshear in U.S. District Court for the Western District of Kentucky challenging Kentucky's refusal to recognize their marriage on behalf of themselves and Deleon's two adopted children. They later added as plaintiffs a couple married in Iowa and another in California, and the four children of one of them. On August 16, a fourth couple, married in Connecticut in 2010, filed a related suit in the same court and then joined the Bourke suit as plaintiffs. Named as defendants were Kentucky Governor Steve Beshear and Attorney General Jack Conway, as well as Sue Carole Perry, Shelby County Clerk. Their suit, Bourke v. Beshear, argued that Kentucky should recognize same-sex marriages from other jurisdictions. The case was assigned to Judge John G. Heyburn II.
In a decision issued February 12, 2014, Judge Heyburn found that Kentucky must recognize same-sex marriages from other jurisdictions because withholding recognition violates the U.S. Constitution's guarantee of equal protection. He pointed out the evolution of judicial recognition of same-sex marriage: "In Romer, Lawrence, and finally, Windsor, the Supreme Court has moved interstitially ... establishing the framework of cases from which district judges now draw wisdom and inspiration. Each of these small steps has led to this place and this time, where the right of same-sex spouses to the state-conferred benefits of marriage is virtually compelled." He told attorneys he would hold a hearing before issuing an order implementing his decision.
On February 14, two same-sex couples who were denied marriage licenses in Jefferson County, Timothy Love, Lawrence Ysunza, Maurice Blanchard, and Dominique James, asked to be allowed to intervene in the suit because their challenge to Kentucky's ban on same-sex marriage within the state raises substantially the same arguments as the original suit. On February 26, Heyburn said he would issue a final order the next day and would not stay its implementation. He also allowed the new plaintiffs to intervene in the suit to argue against Kentucky's denial of marriage licenses to same-sex couples, and set a briefing schedule to be completed by May 28. On February 27, anticipating Heyburn's final order, Attorney General Conway asked Heyburn to stay enforcement of his order for 90 days, noting that even if the state does not appeal the decision it needs time to implement it. Heyburn's final order the same day ordered Kentucky to recognize same-sex marriages from other jurisdictions at once. On February 28, Judge Heyburn issued a 21-day stay of his order, giving the state until March 20 to prepare. Based on the addition of new plaintiffs, he ordered the case retitled Love v. Beshear.
On March 4, Conway announced that he would neither appeal the state's position nor request further stays. Beshear said he would employ outside counsel to appeal Heyburn's ruling to the Sixth Circuit Court of Appeals and to request a stay pending appeal.
Adoption and parenting
Kentucky permits adoption by individuals or married couples only. In February 2009 Senate Bill 68 (SB 68) was introduced to the Kentucky Senate by Senator Gary Tapp (R-Waddy). If passed, SB 68 would have barred any unmarried cohabiting couples from fostering or adopting children in Kentucky. Many Kentucky fairness supporters, along with foster and adoption agencies, rallied against the bill. The Senate Judiciary Committee passed SB 68 in a hastily-called, unadvertised meeting upon Senate adjournment March 5, 2009, but it died when the legislative session ended without the full Senate putting SB 68 to a vote. This was the first time a piece of anti-LGBT legislation had passed a Kentucky Senate Committee without also passing the full chamber. On January 5, 2010 House Bill 195 (HB 195) was introduced to the Kentucky House by Representative Tom Burch (D-Louisville). If passed, HB 195 would have redefined stepparent to include any non-relative adult person who the court finds as sharing parental responsibility for the child. The House Health and Welfare Committee held an informational hearing on HB 195 on March 11, 2010—the first-ever hearing of a pro-LGBT piece of legislation in the Kentucky General Assembly. HB 195 did not receive a vote but further informational hearings were requested.
Public Employment Public employment discrimination against state workers based on sexual orientation or gender identity is illegal under an executive order by Governor Steve Beshear (Democrat) in June 2008. Such discrimination was originally banned by an executive order by Governor Paul Patton (Democrat) under an executive order issued by him in 2003. When Republican Governor Ernie Fletcher took office, however, he removed these protections in 2006. Thus, Beshear's order reinstates such protections.
In February 2013, Berea Mayor Steve Connelly banned discrimination on the basis of actual or perceived sexual orientation via executive order. The order applies only to the town's 130 public employees.
Private Employment Six Kentucky cities have local non-discrimination ordinances -or Fairness Ordinances- covering sexual orientation and gender identity: Covington (2003), Frankfort (2013), Lexington-Fayette County (1999), Louisville Metro (1999), Morehead (2013) and Vicco (2013). The City of Henderson adopted a non-discrimination ordinance in 1999 but a subsequent group of city commissioners removed the protections in 2001.
Some of Kentucky's largest employers also ban sexual orientation discrimination through company policies and include such employers as Lexmark, the University of Kentucky, the University of Louisville, Toyota, Ford Motor Company, General Electric, PNC Financial Services, Yum! Brands and United Parcel Service.
In January 2013 Vicco, Kentucky, a town with a population of 334 as of the 2010 census with a gay mayor, Johnny Cummings, passed a town ordinance prohibiting "discrimination in employment, housing, and public accommodations based upon a person's actual or perceived sexual orientation and gender identity". Vicco joined Covington, which enacted a similar ordinance in 2003, and Lexington and Louisville, which did so in 1999. Vicco, KY was said to be the smallest town in the United States to pass such an ordinance.
Housing The six existing non-discrimination ordinances in Covington, Lexington, Louisville, Vicco, Frankfort, and Morehead ban also ban housing discrimination because of a person's sexual orientation or gender identity.
Public Accommodations The six existing non-discrimination ordinances in Covington, Lexington, Louisville, Vicco, Frankfort, and Morehead ban also ban housing discrimination because of a person's sexual orientation or gender identity.
Religious Freedom Act of 2013 In March 2013, both houses of the Kentucky legislature passed the Religious Freedom Act which requires the state to show "clear and convincing evidence" for any statutes or policies that infringe on an individual's "sincerely held religious beliefs".[a] The bill was supported by the Kentucky Family Foundation and the Kentucky Catholic Conference. More than 50 civil rights, public health, religious and other community groups urged Governor Steve Beshear to veto the legislation, including the Kentucky League of Cities, the Kentucky Association of Counties, the Kentucky ACLU and the mayors of Louisville and Covington. Opponents argued its wording was vague and could be used to override local non-discrimination ordinances. Supporters, including the bill's sponsor, Representative Bob Damron, argued it was needed to protect religious believers from state encroachment, citing the case of several Kentucky Amish who were arrested for refusing to put reflectors on their buggies when traveling government-maintained roads. Beshear vetoed the bill and the legislature overrode his veto by votes of 79-15 in the House and 32-6 in the Senate.
Hate crime laws
Kentucky statutes cover hate crimes based on sexual orientation but not gender identity.
On March 15, 2012, the Kentucky State Police assisted the FBI in arresting David Jenkins, Anthony Jenkins, Mable Jenkins, and Alexis Jenkins of Partridge, KY for the beating of Kevin Pennington during a late-night attack in April 2011 at Kingdom Come State Park, near Cumberland. The push came from the gay-rights group Kentucky Equality Federation, whose president, Jordan Palmer, began lobbying the U.S. Attorney for the Eastern District of Kentucky In August 2011 to prosecute after stating he had no confidence in the Harlan County Commonwealth's Attorney to act. "I think the case's notoriety may have derived in large part from the Kentucky Equality Federation efforts," said Harvey, the U.S. Attorney for the Eastern District of Kentucky. Mable Jenkins, and Alexis Jenkins plead guilty.
Kentucky permits post-operative transsexuals to amend their sex on their birth certificates.
A statistical analysis by the New York Times estimated that in 1994-96, 18% of residents supported marriage equality, and that support had risen to 31% in 2010.
In 2011 a statewide survey commissioned by the Fairness Coalition  showed that 83% of Kentucky voters support state wide protection against discrimination on the basis of sexual orientation and/or gender identity in employment, housing, and public accommodations; 87% support LGBT-inclusive anti-bullying/harassment laws; and 90% support hospital visitation rights for same-gender partners.
A February 2014 Bluegrass poll found that 35% of Kentucky residents support gay marriage, while 55% oppose it.
- The Religious Freedom Act reads: "Government shall not substantially burden a person's freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A 'burden' shall include indirect burdens such as withholding benefits, assessing penalties or an exclusion from programs or access to facilities."
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