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LGBTQ rights in North Dakota

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LGBTQ rights in North Dakota
North Dakota (US)
StatusLegal since 1973
Gender identityAltering sex on birth certificate requires sex reassignment surgery
Discrimination protectionsProtections in employment for sexual orientation and gender identity
Family rights
Recognition of relationshipsSame-sex marriage since 2015
AdoptionSame-sex couples allowed to adopt

Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of North Dakota may face some legal challenges not experienced by non-LGBT residents. Same-sex sexual activity is legal in North Dakota, and same-sex couples and families headed by same-sex couples are eligible for all of the protections available to opposite-sex married couples; same-sex marriage has been legal since June 2015 as a result of Obergefell v. Hodges. State statutes do not address discrimination on account of sexual orientation or gender identity; however, the U.S. Supreme Court's ruling in Bostock v. Clayton County established that employment discrimination against LGBT people is illegal.

Laws regarding same-sex sexual activity

Prior to European settlement in the 18th and 19th centuries, there were no known legal or social punishments for engaging in homosexual activity. Perceptions toward gender and sexuality among the Native Americans were different to that of the Western world. Several had traditions of "third gender" people (nowadays also called "two-spirit") who would dress and act as the opposite gender, perform tasks associated with the opposite gender and be fully recognized as such by the members of the tribe. Among the Arikara, male-bodied people who act as women are known as skuxát. Likewise, the Hidatsa and the Mandan refer to them as miati and mihdeke, respectively, while they are known as wįktą, winkta and wíŋkte (or winkte) among the Assiniboine, the Dakota and the Lakota.[1]

The first criminal law against sodomy in North Dakota was enacted in 1862, then the Dakota Territory. It prohibited heterosexual and homosexual fellatio. The law was expanded in 1885 to include anal intercourse.[2] The state's vagrancy laws were expanded in 1903 to cover anyone whose speech or conduct was deemed to be "lewd, wanton and lascivious".[2] In State v. Nelson (1917), the North Dakota Supreme Court broadened the scope of the sodomy law to include acts of cunnilingus.

In 1927, a law initially designed to permit the sterilization of mentally and physically disabled inmates was expanded to include anyone who state authorities believed might be "habitual criminals, moral degenerates and sexual perverts".[2] The forced sterilization law was repealed in 1965.

In 1973, the state legalized private, adult, consensual homosexual relations as part of a larger revision of the Criminal Code that set the universal age of consent at eighteen years.[3]

Recognition of same-sex relationships

Main article: Same-sex marriage in North Dakota

Same-sex marriage has been legal in North Dakota since the U.S. Supreme Court decision in Obergefell v. Hodges on June 26, 2015, which found the denial of marriage rights to same-sex couples unconstitutional. The state had previously restricted marriage to the union of one man and one woman and denied recognition to same-sex unions under any legal designation both in its Constitution and by statute.[4][5]

A lawsuit challenging the state's refusal to license and recognize same-sex marriages, Ramsay v. Dalrymple, was initiated in June 2014, but proceedings were suspended in January 2015 pending action by the U.S. Supreme Court in related cases.[6]

In August 2020, the Turtle Mountain Band of Chippewa Indians legalize same-sex marriage within its reservation by a vote of 6-2; the first Native American tribal jurisdiction in North Dakota to do so.[7]

Adoption and parenting

North Dakota permits adoption by individuals and state law does not expressly ban LGBT people or same-sex couples from adopting or having custody of children. However, in the 1980s, the North Dakota Supreme Court ruled that because of societal prejudices, the sexual orientation of a parent would be the deciding factor in child custody cases. This ruling was subsequently reversed in 2003.[8]

North Dakota law expressly allows private adoption organizations in the state to discriminate against LGBT individuals or couples seeking to adopt children, if such discrimination is based on a sincerely held religious belief.[9]

Lesbian couples have access to assisted reproduction services, such as in vitro fertilization. State law recognizes the non-genetic, non-gestational mother as a legal parent to a child born via donor insemination, irrespective of the marital status of the parents.[10] In addition, North Dakota law explicitly permits gestational surrogacy. This statute also declares that a child born to a gestational surrogate is the child of the intended parents, whether same-sex or different-sex, for all intents and purposes. Traditional surrogacy is prohibited regardless of sexual orientation.[11]

Discrimination protections

Further information: LGBT employment discrimination in the United States
Map of North Dakota cities that had sexual orientation and/or gender identity anti–employment discrimination ordinances prior to Bostock[12][13]
  Sexual orientation and gender identity solely in public employment
  Sexual orientation in public employment
  Does not protect sexual orientation and gender identity in employment

North Dakota statutes do not explicitly address discrimination on the basis of sexual orientation or gender identity.[14]

Since 2001, the city of Fargo has had a non-discrimination policy that includes sexual orientation, but it only applies to city employees. A similar policy exists in Jamestown. The Human Rights Campaign added Bismarck and Mandan to this list in 2016 under its annual "Municipal Equality Index", though had removed them in later versions of the index.[13]

On June 17, 2013, the Grand Forks City Council approved a measure to protect city employees and city job applicants from discrimination based on gender identity and sexual orientation, becoming the second city in North Dakota to do so, and the first to address gender identity-based discrimination.[15] Later that year, the city became the first in North Dakota to ban discrimination in rental housing based on sexual orientation or gender identity.[16]

On February 17, 2015, the North Dakota Senate voted 25-22 to approve a bill that would have banned discrimination on the basis of sexual orientation or gender identity in employment, housing and public accommodations.[17] The bill did not receive enough votes to pass in the North Dakota State House.

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 in 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.[18][19][20]

Hate crime law

North Dakota law does not address hate crimes based on gender identity or sexual orientation.[21]

North Dakota does have a law that addresses hate or bias based crimes, but it does not address sexual orientation or gender identity. The Federal Hate Crimes Statistics Act of 1990 encouraged states to report hate crime data to the FBI. Fargo is the city responsible for reporting hate crimes to the state and federal governments. Studies have shown that 2 in 3 hate crimes go unreported.[22] This small knowledge of hate crimes may contribute to the lack of legislation in support of the LGBT community. Groups like the Human Rights Campaign, along with other organizations, are currently working with North Dakota law officials in order to modify the hate crime laws to be LGBT-inclusive.[23]

Although North Dakota's hate crime law does not protect LGBT people, U.S. federal law has addressed the categories of sexual orientation and gender identity since 2009, when the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act was signed into law by President Barack Obama.[24] Hate crimes committed on the basis of the victim's sexual orientation or gender identity can be prosecuted in federal court.

Transgender rights

Further information: Transgender rights in the United States

North Dakota permits transgender people to change their legal gender. The North Dakota Health Department will issue an amended birth certificate on receipt of a written request of "the person who has undergone the operation (sex reassignment surgery)", an affidavit by a physician stating "that the physician has performed an operation on the person, and that by reason of the operation, the sex designation of such person's birth record should be changed", a court order for legal name change, and payment of the associated fees.[25] The Department of Transportation will update the gender marker on a driver's license and state ID card upon receipt of a letter signed by a physician or therapist stating that the applicant has completed a permanent gender change.

Politics

In July 2020, the North Dakotan Republican delegates voted in favor of the party's 2020 election platform.[26] The platform opposes absolutely any civil rights protections for LGBT people, while accusing transgender people "of preying on women" and LGBT people of "recruiting children". Many Republican delegates condemned the platform.[27] Republican Governor Doug Burgum also opposed the anti-gay platform, calling it "divisive and divisional", and saying, "As I've long said, all North Dakotans deserve to be treated equally and live free of discrimination".[28]

Public opinion

A 2017 Public Religion Research Institute (PRRI) opinion poll found that 53% of North Dakota residents supported same-sex marriage, while 35% opposed it and 12% were unsure.[29]

The same PRRI poll also found that 58% of North Dakotans supported an anti-discrimination law covering sexual orientation and gender identity, while 29% were opposed.[29] Furthermore, 49% were against allowing businesses to refuse to serve gay and lesbian people due to religious beliefs, while 38% supported allowing such religiously-based refusals.[29]

Public opinion for LGBT anti-discrimination laws in North Dakota
Poll source Date(s)
administered 		Sample
size 		Margin of
error 		% support % opposition % no opinion
Public Religion Research Institute January 2-December 30, 2019 182 ? 71% 21% 8%
Public Religion Research Institute January 3-December 30, 2018 187 ? 72% 20% 7%
Public Religion Research Institute April 5-December 23, 2017 247 ? 58% 29% 13%
Public Religion Research Institute April 29, 2015-January 7, 2016 276 ? 60% 36% 4%

Summary table

Same-sex sexual activity legal Yes (Since 1973)[2]
Equal age of consent Yes[30]
Anti-discrimination laws for sexual orientation Yes/No (In employment since 2020, not housing nor public accommodations)
Anti-discrimination laws for gender identity or expression Yes/No (In employment since 2020, not housing nor public accommodations)
Same-sex marriages Yes (Since 2015)
Stepchild adoption by same-sex couples Yes[31]
Joint adoption by same-sex couples Yes[31]
Lesbian, gay and bisexual people allowed to serve openly in the military Yes (Since 2011)
Transgender people allowed to serve openly in the military No
Right to change legal gender Yes (Requires sex reassignment surgery)[25]
Conversion therapy banned on minors No
Access to IVF for lesbian couples Yes
Surrogacy arrangements legal for gay male couples Yes[11]
MSMs allowed to donate blood No/Yes (Since 2020; 3-month deferral period)[32]

See also

References

  1. ^ Sabine Lang, Men as Women, Women as Men ISBN 0292777957, 2010
  2. ^ a b c d The History of Sodomy Laws in the United States - North Dakota
  3. ^ William N. Eskridge, Dishonorable Passions: Sodomy Laws in America, 1861-2003 (NY: Penguin Group, 2008), 201n, available online, accessed April 10, 2010
  4. ^ CNN: 2004 Ballot Measures, accessed April 10, 2011
  5. ^ Human Resources Campaign: North Dakota Marriage/Relationship Recognition Law Archived 2012-03-11 at the Wayback Machine, accessed April 10, 2011
  6. ^ "Judge puts marriage case on hold pending high court ruling". Houston Chronicle. Associated Press. January 20, 2015. Retrieved January 20, 2015.
  7. ^ Hatton, Faith (August 7, 2020). "Turtle Mountain votes to recognize same-sex marriage". KFYR.
  8. ^ North Dakota Adoption Law Archived 2012-07-25 at the Wayback Machine, accessed April 10, 2011
  9. ^ 'Religious Freedom' Adoption Bill Allowing Discrimination Against LGBTQ Couples Is Dead
  10. ^ "North Dakota's equality profile". Movement Advancement Project.
  11. ^ a b "Gestational Surrogacy in North Dakota". Creative Family Connections. Retrieved February 22, 2019.
  12. ^ "North Dakota". Human Rights Campaign.
  13. ^ a b Municipal Equality Index 2016
  14. ^ Human Resources Campaign: North Dakota Non-Discrimination Law Archived 2012-03-11 at the Wayback Machine, accessed April 10, 2011
  15. ^ "Grand Forks: First in N.D. to add protections for LGBT city workers". June 17, 2013.
  16. ^ Jewett, Brandi (October 21, 2013). "Grand Forks becomes first city to pass gay discrimination ban for rental housing". The City Street Beat. Grand Forks Herald. Archived from the original on October 23, 2013. Retrieved October 22, 2013.
  17. ^ MacPherson, James (17 February 2015). "North Dakota Senate approves LGBT‑inclusive anti-discrimination bill". AP. Retrieved 20 February 2015.
  18. ^ Biskupic, Joan (June 16, 2020). "Two conservative justices joined decision expanding LGBTQ rights". CNN.
  19. ^ "US Supreme Court backs protection for LGBT workers". BBC News. June 15, 2020.
  20. ^ Liptak, Adam (June 15, 2020). "Civil Rights Law Protects Gay and Transgender Workers, Supreme Court Rules". The New York Times.
  21. ^ Human Resources Campaign: North Dakota Hate Crimes Law Archived 2012-03-11 at the Wayback Machine, accessed April 10, 2011
  22. ^ Study Findings CBS News: Nearly 2 in 3 hate crimes unreported, Justice Department study finds, accessed October 26, 2015
  23. ^ Human Rights Campaign: North Dakota, accessed October 26, 2015
  24. ^ "Obama signs hate crimes bill into law". CNN. October 28, 2009.
  25. ^ a b North Dakota, National Center for Transgender Equality
  26. ^ Bollinger, Alex (July 23, 2020). "North Dakota GOP platform says LGBTQ people "recruit" children & "prey" on women". LGBTQ Nation.
  27. ^ "North Dakota GOP director apologizes after party approves anti-LGBT rhetoric in policy statements". Inforum.com. July 23, 2020.
  28. ^ Macpherson, James (July 23, 2020). "North Dakota Governor Blasts Party's Anti-LGBTQ Resolution". US News.
  29. ^ a b c Public opinion on same-sex marriage by state: North Dakota. PRRI – American Values Atlas.
  30. ^ "North Dakota Age of Consent Laws 2019". ageofconsent.net. Retrieved February 22, 2019.
  31. ^ a b "LGBT Adoption Laws North Dakota". lifelongadoptions.com. Retrieved February 22, 2019.
  32. ^ McNamara, Audrey (April 2, 2020). "FDA eases blood donation requirements for gay men amid "urgent" shortage". CBS News.
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