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LGBTQ rights in Wisconsin

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LGBTQ rights in Wisconsin
Wisconsin (US)
StatusLegal since 1983
Discrimination protectionsYes, sexual orientation only.
Family rights
Recognition of relationshipsDomestic partnerships since 2009
RestrictionsSame-sex marriage and civil union prohibited by the state Constitution.

Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of Wisconsin have some of the same rights and responsibilities as heterosexuals, however may face some legal issues not experienced by non-LGBT residents.

Law regarding same-sex sexual activity

As a territory, Wisconsin was given all the laws of the Michigan territory in 1836, including a prohibition on sodomy. The criminal prohibition was retained after Wisconsin became a state, in 1848, and applied to both heterosexual and homosexual sexual activities, excluding cunnilingus.[1]

In 1912, Wisconsin enacted a law that allowed for the sterilization of criminals and the mentally ill. Similarly, in the 1940s, the State enacted legislation designed to sterilize or institutionalize persons deemed to be psychopathic. These laws often placed gay, lesbian and bisexual residents in the same category as rapists and child molesters [2]

In the 1950s, following a series of high profile sex crimes, Wisconsin criminalized, for the first time, cunnilingus and increased the penalties for "sexual perversion". For example, in 1959 the State bared persons convicted of "sexual perversion" from using an automobile or any vehicle requiring a license [3]

Attitudes began to slowly change in the 1960s. In 1966 the Wisconsin Young Democrats formally approved a resolution to decriminalize private acts of sodomy between consenting adults, one of the first major political organizations in the United States to do so. The resolution was highly controversial within the State Democratic Party and the then Republican Governor referred to supporters of the resolution as "homocrats."[4]

In the 1970s, court challenges to the sodomy law on privacy grounds failed, but the Wisconsin Supreme Court did rule that the law should not apply to private and consensual acts between a husband and wife. In 1976 a State ban on newspapers covering sodomy trials was repealed, a few years later, so was sterilization law.

In 1980, the State repealed the psychopathic offender laws, and in 1983 the State legalized private, non-commercial acts of sodomy between consenting adults. In order to obtain sufficient votes among legislators, the bill had to include language that the State did not approve of "any sexual conduct outside of the institution of marriage." [5]

Recognition of same-sex relationships

Main article: Recognition of same-sex unions in Wisconsin

The entire state of Wisconsin has a domestic partnership registry for same-sex couples. This registry allows same-sex couples to attain 43 of the most important rights associated with marriage (in contrast to over 200 rights afforded to heterosexual couples) and was signed into law in 2009. Same-sex marriages, civil unions and other statuses considered "identical or substantially similar" to marriage are banned by the state constitution.[6] On July 20, 2011, Dane County Judge Dan Moeser ruled that the domestic partnership registry does not violate the state constitution, finding that the state "does not recognize domestic partnership in a way that even remotely resembles how the state recognizes marriage".[7] Several organizations such as Fair Wisconsin, Lambda Legal and the ACLU of Wisconsin continue to ensure that domestic partnerships remain available to all LGBT Wisconsinites, and continue to push for more stringent laws providing same-sex couples the same rights as their heterosexual peers[8]

Wisconsin has provided benefits to same-sex partners of state employees since 2009.[9] In some jurisdictions domestic partnership benefits for state employees continue to expand beyond the 43 rights afforded to non-state employees via the state-wide domestic partnership registry.[10]

Depending on location, same-sex couples may also attain more than the 43 rights afforded via the state domestic partnership registry if they live in Dane or Milwaukee county [11] [12] -both of these counties recognize domestic partnerships at a level more comparable to a civil union.

Adoption and parenting

Overall, Wisconsin law remains unclear when it comes to allowing same-sex couples to jointly petition for adoption- despite the state having a ban on discrimination related to sexual orientation which legally applies to any public sector, including adoption rights. LGBT Wisconsinites may adopt as individuals, however, regardless of being a heterosexual married couple, or a same-sex couple in a domestic partnership, second parent adoption is not legal.[13] Adoption agencies through the state of Wisconsin will ensure that once one spouse attains parental rights that the other spouse receives full guardianship. [14] [15] While Wisconsin's domestic partnership registry does not grant parenting rights, LGBT couples may attain limited rights through a co-parenting agreement or another "de-facto" legal arrangement granted directly by Wisconsin courts.[16] Wisconsin's domestic partnership registry also ensures the dependents of one partner (including children) are covered by the other partners health insurance.[17]

Discrimination protection

Wisconsin law prohibits discrimination based on sexual orientation in employment, housing, public education, credit and public accommodations. In 1982 Wisconsin was the first state in the U.S. to provide such protections.[18] It provides no protection against discrimination based on gender identity.[19][20]

Hate crime laws

Wisconsin hate crimes law punishes violence based on sexual orientation, but not gender identity.[21] Although gender identity is not explicitly included in Wisconsin's hate crime legislation, perceived sexual orientation is often used as a medium to prosecute individuals whom act based on gender identity. [22]

Anti-bullying laws and policies

Any school in the state of Wisconsin that receives federal funding (regardless of being public or private) "are required by federal law to address discrimination on a number of different personal characteristics."[23]

Gender reassignment

Wisconsin allows a person born in the state who has completed sex-reassignment surgery to amend his or her birth certificate once documentation of the surgery and of a change of name is provided.[24]

A 2005 Wisconsin statute denying hormone therapy to prisoners undergoing sexual reassignment, the Inmate Sex Change Prevention Act, was ruled unconstitutional in a unanimous opinion in the case of Fields v. Smith by a three-judge panel of United States Court of Appeals for the Seventh Circuit on August 5, 2011.[25] The U.S. Supreme Court declined to hear the state's appeal of that decision on March 26, 2012.[citation needed]

Public opinion

The overwhelming majority of Wisconsinites (67%) support either same-sex marriage or a civil-union equivalent. 34% of Wisconsinites support legal recognition of same-sex marriage, 33% support legal recognition of civil unions or domestic partnerships, 31% oppose all legal forms of same-sex partnerships and 1% of Wisconsinites were not sure. [26] In 2006 (a non-presidential election year) 59% of Wisconsin voters allowed the passage of a constitutional amendment banning both same-sex marriage and a civil union equivalent- some of these voters had the false reassurance that domestic partnership benefits would not be jeopardized by this amendment. [27] This notion was strongly conveyed by Wisconsin Family Action, a conservative group that pushed for this seemingly discriminatory amendment and, ironically, eventually challenged the legality of the states 2009 domestic partnership registry [28] [29]


References

  1. ^ [1]
  2. ^ [2]
  3. ^ [3]
  4. ^ [4]
  5. ^ Wisconsin Sodomy Law
  6. ^ Wisconsin Marriage/Relationship Recognition Law
  7. ^ Judge rules Wisconsin same sex registry is constitutional
  8. ^ Cap City Liberty: [5], Accessed April 9, 2012
  9. ^ National Conference of State Legislatures: "States offering benefits for same-sex partners of state employees", accessed April 16, 2011
  10. ^ Wisconsin Gazette: [6] Accessed April 8, 2012
  11. ^ City of Madison: [7], Accessed April 9, 2012
  12. ^ Go Milwaukee: [8], Accessed April 9, 2012
  13. ^ [9], accessed April 8, 2012
  14. ^ Adoption Pride: [10], Accessed May 30, 2012
  15. ^ Wisconsin Adoption Information Center: [11], Accessed May 30, 2012
  16. ^ Fair Wisconsin: [12], accessed April 8, 2012
  17. ^ Wisconsin Department of Employee Trust Funds: [13], accessed April 8, 2012
  18. ^ American Civil Liberties Union: [14], accessed April 8, 2012
  19. ^ Human Rights Campaign: Wisconsin Non-Discrimination Law , accessed August 7, 2011
  20. ^ The Gay Rights State': Wisconsin's Pioneering Legislation to Prohibit Discrimination Based on Sexual Orientation
  21. ^ Human Rights Campaign: Wisconsin Hate Crimes Law , accessed August 7, 2011
  22. ^ Anti-defamation League: [15], Accessed April 8, 2012
  23. ^ StopBullying.gov: [16], accessed April 8, 2012
  24. ^ Human Rights Campaign: Wisconsin Birth Certificate Law: Gender Identity Issues, accessed August 7, 2011
  25. ^ Milwaukee Journal Sentinel: Bruce Vielmetti, "Court upholds hormone therapy for transgender inmates," August 5, 2011, accessed August 7, 2011
  26. ^ Public Policy Polling: [17], accessed April 8, 2012
  27. ^ The Chippewa Herald- Judge upholds Wisconsin domestic partnership law: [18], Accessed April 9, 2012
  28. ^ Cap City Liberty- WI Domestic Partner Registry Not a Violation of State Same-Sex Marriage Ban: [19], Accessed April 8, 2012
  29. ^ Appling v. Doyle- Lambda Legal: [20], Accessed April 10, 2012
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