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LGBTQ rights in Mississippi

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LGBTQ rights in Mississippi
Mississippi (USA)
StatusLegal since 2003
Gender identityAltering sex on identity documents does not require sex reassignment surgery
Discrimination protectionsEmployment protections for sexual orientation and gender identity (Bostock v. Clayton County)
Family rights
Recognition of relationshipsSame-sex marriage since 2015
AdoptionJoint and stepchild adoption legal

Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of Mississippi face legal challenges and discrimination not experienced by non-LGBT residents. Same-sex sexual activity is legal in Mississippi, and same-sex marriage has been legal since June 2015 in accordance with the Supreme Court's decision in Obergefell v. Hodges. State statutes do not address discrimination on the basis of sexual orientation and gender identity; however, the U.S. Supreme Court's ruling in Bostock v. Clayton County established that employment discrimination against LGBT people is illegal. The state capital Jackson and a number of other cities provide protections in housing and public accommodations as well.

Mississippi is known for being a socially conservative state. A 2017 opinion poll showed that Mississippi was one of the only two states in the country where opposition to same-sex marriage outnumbered support. Additionally, the state has passed various religious freedom laws designed to protect religious beliefs, though these laws have been criticized for "giving religious people a license to discriminate" against LGBT people and have provoked both domestic and international backlash. Mississippi was also the last state to allow same-sex couples to adopt, finally relenting in May 2016 after a federal judge ruled the adoption ban unconstitutional. Despite this reputation, opinion polls have reported a trend in support for LGBT rights and same-sex marriage, with a majority of Mississippi residents now favoring an anti-discrimination law covering sexual orientation and gender identity.[1]

Legality of same-sex sexual activity

Mississippi enacted its first criminal provision dealing with sodomy in 1839, which was defined via the common law. The law provided punishment of up to ten years' imprisonment for anal sex (both homosexual and heterosexual). It also applied to private consensual activity. In 1937, in the first sodomy court case in the state, the Supreme Court of Mississippi held, in State v. Hill, that cunnilingus was not a "crime against nature" and thus not criminal. In 1942, the Mississippi Legislature authorized a recodification of state law with that power given to the Attorney General. The Attorney General changed the heading over the sodomy law from "crime against nature" to "unnatural intercourse". Due to this change, the Mississippi Supreme Court ruled in 1955 in State v. Davis that cases of fellatio (oral sex) could also be prosecuted.[2]

The sodomy law was upheld twice as constitutional by the Mississippi Supreme Court, first in State v. Mays in 1976 and then in 1994 in Miller v. State. In 1995, the state passed a "sex offender registration law" requiring those convicted under the sodomy law to register their address with the sheriff and notify any change in address. Additionally, under a 1987 law, employers were permitted to ask the State Attorney General if a potential employee had committed a sex offense, including consensual sodomy.[2]

Same-sex sexual activity has been legal in Mississippi since 2003, when the United States Supreme Court struck down all state sodomy laws in the case of Lawrence v. Texas.[3]

Recognition of same-sex relationships

Main article: Same-sex marriage in Mississippi

On August 24, 1996, Governor Kirk Fordice issued an executive order banning same-sex marriage in the state.[4] A statute banning same-sex marriage took effect on February 12, 1997.[5] On November 4, 2004, voters approved a constitutional amendment that defined marriage as the union of one man and one woman.[6]

On November 25, 2014, Carlton W. Reeves, district judge of the U.S. District Court for the Southern District of Mississippi, ruled Mississippi's ban on same-sex marriage unconstitutional, but stayed enforcement of his ruling until December 9.[7] On December 4, the Fifth Circuit Court of Appeals issued a stay pending appeal.[8]

On June 29, 2015, following the ruling of the U.S. Supreme Court on June 26 in Obergefell v. Hodges, Attorney General Jim Hood informed the state's circuit clerks that they could issue marriage licenses to same-sex couples and that refusal to do so might invite lawsuits on the part of those denied licenses.[9]

Adoption and parenting

See also: Senate Bill 3074 (Mississippi Legislature, 2000 Regular Session)

Mississippi has been required to recognize adoption rights for same-sex couples since a federal court ruling in March 2016 struck down a statutory ban on same-sex couples adopting children jointly. The following details the history of this process.

Mississippi has always permitted adoption by an unmarried adult without regard to sexual orientation. Couples of the same gender were not able to adopt jointly as a result of the state passing a law banning adoption and fostering by same-sex couples in 2000. By 2015, Mississippi was the only state that continued to enforce such a ban.[10][11]

In February 2013, Ronnie Musgrove, who as governor in 2000 had signed the ban, described how his views had changed and that the law "made it harder for an untold number of children to grow up in happy, healthy homes in Mississippi–and that breaks my heart".[12] On August 12, 2015, the Campaign for Southern Equality, the Family Equality Council, and four Mississippi same-sex couples filed a lawsuit challenging that ban in federal court. Their complaint noted that as of 2014 29% of Mississippi households headed by a same-sex-couple included children under the age of 18, the highest percentage in any U.S. state.[11]

On March 31, 2016, U.S. District Judge Daniel Jordan issued a preliminary injunction striking down Mississippi's ban on adoption rights for same-sex couples, declaring it unconstitutional. A spokeswoman for the state's Attorney General responded to the ruling by stating; "We respect the district court's analysis of the law and will consult with the Department of Human Services on what options to take going forward." Any appeal was considered unlikely to succeed. The ruling made Mississippi the final state in the United States to allow same-sex couples to adopt.[13][14][15] The ban was officially declared dead on May 2, 2016 after a deadline passed at midnight for Mississippi officials to appeal the court ruling. One of the plaintiffs, Susan Hrostowski along with her wife, Kathryn Garner, said: "I've been waiting 16 years to be able to adopt my son, so I'm overjoyed about that."[16][17]

Lesbian couples have access to in vitro fertilization. State law recognizes the non-genetic, non-gestational mother as a legal parent to a child born via donor insemination, but only if the parents are married.[18] Surrogacy is neither expressly prohibited nor permitted in Mississippi. However, courts are generally favorable to surrogacy, but may require the couple to be married with at least one partner who is genetically related to the child. Same-sex couples are treated in the same manner as opposite-sex couples in using the gestational or traditional surrogacy process.[19]

Discrimination protections

Map of Mississippi cities that had sexual orientation and/or gender identity anti–employment discrimination ordinances prior to Bostock
  Sexual orientation and gender identity with anti–employment discrimination ordinance
  Sexual orientation and gender identity solely in public employment
  Does not protect sexual orientation and gender identity in employment

Mississippi statutes do not address discrimination based on gender identity or sexual orientation.[20]

The state capital of Jackson and the cities of Clarksdale,[21] Holly Springs,[22] and Magnolia have approved ordinances banning discrimination based on sexual orientation and gender identity in public and private employment, housing and public accommodations.[23][24] In addition, Hattiesburg, Oxford, and Starkville have similar protections but for city employees only.[25][26][27]

Bostock v. Clayton County

Main article: Bostock v. Clayton County

On June 15, 2020, the U.S. Supreme Court ruled in Bostock v. Clayton County, consolidated with Altitude Express, Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission that discrimination in the workplace on the basis of sexual orientation or gender identity is discrimination on the basis of sex, and Title VII therefore protects LGBT employees from discrimination.[28][29][30]

Religious freedom

Main articles: Mississippi Student Religious Liberties Act of 2013, Mississippi Religious Freedom Restoration Act, and Religious Liberty Accommodations Act

In recent years, the Mississippi Legislature has passed several laws protecting the beliefs of religious people.

The Mississippi Student Religious Liberties Act of 2013 protects the views of students in any educational institution from being reprimanded for their religious views.

The Mississippi Religious Freedom Restoration Act protects religious people from legal repercussions if they verbally condemn the lifestyle or actions of LGBT persons.

Passed in 2016, the Religious Liberty Accommodations Act protects the beliefs that "marriage should be the union of one man and one woman, sexual relations are properly reserved to such a marriage, and male and female refer to an individual's biological sex as objectively determined by anatomy and genetics at time of birth".[31] Soon after the bill's passage, many states and cities banned public travel to Mississippi.[32][33] The bill was due to go into effect on July 1, 2016. On June 30, however, U.S. District Court Judge Carlton W. Reeves issued a preliminary injunction blocking the law.[34] On June 23, 2017, the Fifth Circuit Court of Appeals lifted the injunction as the plaintiffs in the case lacked standing, thus allowing the law to go into effect.

Local non-discrimination resolutions

The following cities have passed resolutions supporting the LGBT community:

Starkville passed such a resolution in January 2014. On January 6, 2015, however, the Starkville City Council voted 5-2 to repeal the equality resolution.[44][45] On January 8, 2015, Mayor Parker Wiseman vetoed the ordinance,[46] but on January 21, 2015 the City Council voted 5-2 to override Wiseman's veto and repeal the equality resolution.[47]

Transgender rights

See also: Transgender rights in the United States

Transgender people in Mississippi are allowed to change the gender marker on their identity documents. The Mississippi Vital Records will issue an amended birth certificate with a corrected gender marker upon receipt of a certified court order, a medical statement attesting to gender dysphoria, and the payment of the required fee. Undergoing sex reassignment surgery or other medical interventions is not required. The Department of Public Safety will issue an updated driver's license upon receipt of documents demonstrating the gender change, such as a court order or an amended birth certificate.[48]

Hate crime law

State law does not address hate crimes based on gender identity or sexual orientation.[49] However, federal law has covered both categories since 2009, when the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act was signed into law by President Barack Obama. Hate crimes committed on the basis of the victim's sexual orientation or gender identity can thus be prosecuted in federal court.

Freedom of expression

In 2018, the city of Starkville banned an LGBT pride parade from taking place. Following backlash and legal action, the city allowed the event to happen. It was held on March 24 and was the largest parade in the city's history, with about 3,000 people in attendance.[50]

Public opinion

A 2017 Public Religion Research Institute (PRRI) poll found that 42% of Mississippi residents supported same-sex marriage, while 48% were opposed. 10% were undecided. Mississippi along with neighboring Alabama were the only U.S. states where opposition to same-sex marriage outnumbered support (though Alabama was the only state where an absolute majority opposed it).[1]

Nevertheless, the same poll also found that 57% supported an anti-discrimination law covering sexual orientation and gender identity, 35% were against. Additionally, 52% were against allowing public businesses to refuse to serve LGBT people due to religious beliefs, while 36% supported such religiously-based refusals.[1]

Public opinion for LGBT anti-discrimination laws in Mississippi
Poll source Date(s)
administered 		Sample
size 		Margin of
error 		% support % opposition % no opinion
Public Religion Research Institute January 2-December 30, 2019 388 ? 68% 23% 9%
Public Religion Research Institute January 3-December 30, 2018 395 ? 59% 36% 5%
Public Religion Research Institute April 5-December 23, 2017 586 ? 57% 35% 8%
Public Religion Research Institute April 29, 2015-January 7, 2016 753 ? 54% 37% 9%

See also

References

  1. ^ a b c "PRRI – American Values Atlas". ava.prri.org.
  2. ^ a b "The History of Sodomy Laws in the United States - Mississippi". www.glapn.org.
  3. ^ "Mississippi Sodomy Law". Hrc.org. Archived from the original on July 14, 2014. Retrieved December 5, 2013.
  4. ^ "Mississippi Governor Bans Same-Sex Marriage". New York Times. August 24, 1996. Retrieved November 26, 2014.
  5. ^ "SB2053 - History of Actions/Background". billstatus.ls.state.ms.us.
  6. ^ Roberts, Joel (November 2, 2004). "11 States Ban Same-Sex Marriage". CBS News. Associated Press. Retrieved November 26, 2014.
  7. ^ Geidner, Chris (November 25, 2014). "Mississippi's Same-Sex Marriage Ban Is Unconstitutional, Federal Judge Rules". BuzzFeed News. Retrieved November 25, 2014.
  8. ^ "Order and Opinion: Stay pending appeal granted". Scribd.com. Fifth Circuit Court of Appeals. Retrieved December 4, 2014.
  9. ^ Royals, Kate (June 29, 2015). "AG gives clerks OK for same-sex marriage licenses". The Clarion-Ledger. Retrieved June 29, 2015.
  10. ^ "Mississippi Adoption Law". Human Rights Campaign. Archived from the original on March 11, 2012. Retrieved May 15, 2011.
  11. ^ a b Lewin, Tamar (August 12, 2015). "Mississippi Ban on Adoptions by Same-Sex Couples Is Challenged". New York Times. Retrieved August 12, 2015.
  12. ^ Musgrove, Ronnie (March 20, 2013). "Portman's Conversion Should Be a Lesson". Huffington Post. Retrieved August 12, 2015.
  13. ^ "Judge blocks Mississippi ban on adoption by same-sex couples". The Boston Globe. March 31, 2016.
  14. ^ "Judge Invalidates Mississippi's Same-Sex Adoption Ban, the Last of Its Kind in America". Slate. March 31, 2016.
  15. ^ "Federal judge tosses same-sex adoption ban". Mississippi Today. March 31, 2016.
  16. ^ Holden, Dominic (May 2, 2016). "Mississippi's Gay Adoption Ban Dead After State Fails To Appeal Ruling". BuzzFeed News.
  17. ^ Prakash, Nidhi (May 3, 2016). "Same-sex adoption is finally legal in all 50 states". Fusion.
  18. ^ "Mississippi's equality profile". Movement Advancement Project.
  19. ^ "What You Need to Know About Surrogacy in Mississippi". American Surrogacy.
  20. ^ "Mississippi Non-Discrimination Law". Human Rights Campaign. May 15, 2011. Archived from the original on April 25, 2012.
  21. ^ Kenneth Johnson (August 20, 2018). "Clarksdale is third Mississippi city to pass LGBTQ-Inclusive Ordinance". Georgia Voice.
  22. ^ "Mississippi's Equality Profile". Movement Advancement Project.
  23. ^ Wolfe, Anna (June 15, 2016). "Jackson council adds LGBT protections to law". The Clarion-Ledger. Archived from the original on June 15, 2016. Retrieved June 15, 2016.
  24. ^ "Second Mississippi city passes major LGBTQ-inclusive non-discrimination ordinance". Archived from the original on April 3, 2017. Retrieved April 7, 2017.
  25. ^ "HATTIESBURG, MISSISSIPPI 2018 MUNICIPAL EQUALITY INDEX SCORECARD" (PDF).
  26. ^ "OXFORD, MISSISSIPPI 2018 MUNICIPAL EQUALITY INDEX SCORECARD" (PDF).
  27. ^ "STARKVILLE, MISSISSIPPI 2018 MUNICIPAL EQUALITY INDEX SCORECARD" (PDF).
  28. ^ Biskupic, Joan (June 16, 2020). "Two conservative justices joined decision expanding LGBTQ rights". CNN.
  29. ^ "US Supreme Court backs protection for LGBT workers". BBC News. June 15, 2020.
  30. ^ Liptak, Adam (June 15, 2020). "Civil Rights Law Protects Gay and Transgender Workers, Supreme Court Rules". The New York Times.
  31. ^ "H.B. 1523" (PDF).
  32. ^ "California will no longer pay for state workers to travel to anti-LGBT states".
  33. ^ Harrie, Dan (April 12, 2016). "Salt Lake City Mayor Jackie Biskupski bans city travel to states that have passed anti-LGBT laws". The Salt Lake Tribune.
  34. ^ Judge blocks HB 1523 from starting July 1 Archived July 2, 2016, at the Wayback Machine, Cassie Archebelle, WADM, July 1, 2016
  35. ^ "Hattiesburg follows Starkville in passing diversity resolution". Yall Politics. February 19, 2014. Retrieved June 29, 2014.
  36. ^ Lowrey, Erin (March 4, 2014). "Oxford, MS unanimously passes Pro-LGBT resolution - WDAM.COM - TV 7 - News, Weather and Sports". Wdam.Com. Retrieved June 29, 2014.
  37. ^ "Magnolia, MS Passes Pro-LGBT Resolution | Human Rights Campaign". Hrc.org. April 22, 2014. Retrieved June 29, 2014.
  38. ^ "Fifth Mississippi City Council Passes Pro-LGBT Resolution | Human Rights Campaign". Hrc.org. April 30, 2014. Retrieved June 29, 2014.
  39. ^ Showers, Al. "Bay St. Louis passes measure supporting LGBT community". WJHL.com. Archived from the original on July 14, 2014. Retrieved June 29, 2014.
  40. ^ Waveland joins other Miss. cities with LGBT resolution
  41. ^ Ferretti, Haley (June 3, 2014). "Jackson Passes Pro-LGBT Resolution | Jackson Free Press | Jackson, MS". Jackson Free Press. Retrieved June 29, 2014.
  42. ^ McAdams, Carolyn (April 26, 2016). "City Connections for April 26, 2016". City of Greenwood - Mayor's Office.
  43. ^ City of Greenwood - Mayor's Office. "5(b)1.pdf". www.greenwoodms.com. Archived from the original on December 28, 2016. Retrieved February 4, 2020.
  44. ^ Johnson, Renee. "Starkville passes equality resolution supporting LGBT residents, others". www.wlox.com.
  45. ^ Press, Associated (January 8, 2015). "Mississippi town rescinds health coverage for unmarried domestic partners". www.lgbtqnation.com.
  46. ^ "Starkville mayor vetoes board's repeal of equality resolution". Archived from the original on January 16, 2015. Retrieved January 16, 2015.
  47. ^ "Starkville, Mississippi Officials Override Mayor's Veto, Repeal Historic Gay-Rights Initiatives". January 21, 2015.
  48. ^ "Mississippi". National Center for Transgender Equality.
  49. ^ "Mississippi Hate Crimes Law". Human Rights Campaign. Archived from the original on March 11, 2012. Retrieved May 15, 2011.
  50. ^ Phillips, Ryan (March 24, 2018). "Starkville Pride event largest parade in city history". Archived from the original on November 1, 2018. Retrieved June 14, 2019.
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