LGBT rights in Hawaii

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Map of USA HI.svg
Hawaii (US)
StatusLegal since 1973
(Legislative repeal)
Gender identityTransgender people allowed to change gender
Discrimination protectionsBoth sexual orientation and gender identity and expression (see below)
Family rights
Recognition of relationshipsSame-sex marriage since 2013;
Civil unions since 2012;
Reciprocal beneficiary relationships since 1997
AdoptionBoth joint and stepchild adoption

Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of Hawaii enjoy all of the same rights as non-LGBT people. Same-sex sexual activity has been legal since 1973; Hawaii being one of the first six states to legalize it. In 1993, a ruling by the Hawaiian Supreme Court made Hawaii the first state to consider legalizing same-sex marriage.[1] Following the approval of the Hawaii Marriage Equality Act in November 2013, same-sex couples have been allowed to marry on the islands. Additionally, Hawaii law prohibits discrimination on the basis of both sexual orientation and gender identity, and the use of conversion therapy on minors has been banned since July 2018. Gay and lesbian couples enjoy the same rights, benefits and treatment as opposite-sex couples, including the right to marry and adopt.[2]

Same-sex relationships have been part of Hawaiian culture for centuries. The term aikāne refers to homosexual or bisexual relationships, which were widely accepted in pre-colonial Hawaiian society, and the term māhū refers to a "third gender" alongside male and female. The Christian missionaries, who arrived in the 19th century, were adept in converting the local population to Christianity. As a result, the first ever anti-gay law was enacted in 1850, prohibiting sodomy with 20 years hard labor. During the 1960s and onwards, LGBT rights entered into the public eye, which was followed by multiple pro-LGBT rights reforms, including the repeal of the sodomy law.

In modern times, Hawaii is notable for its LGBT-friendliness, with several establishments, accommodations, and festivals catering especially for gay tourists and couples.[3] Recent opinion polls have found that LGBT rights enjoy high levels of support, with a 2019 survey by the Public Religion Research Institute showing that 73% of Hawaiians supported anti-discrimination legislation protecting LGBT people.[4]

History[edit]

Prior to European contact, same-sex relationships existed in the form of aikāne, an accepted tradition for both men and women in pre-colonial Hawaiian society. Likewise, the māhū formed a "third gender" role in Hawaiian culture, notably as priests and healers. The religious missionaries converted the local Hawaiians to Christianity and spread their moral ideals to the population, resulting in the introduction of negative attitudes towards homosexuality.

Although the first specific sodomy law in Hawaii was enacted in 1850, statutes passed in 1840 allowed villages to prosecute "any particular evils" against which no law existed. The 1850 anti-sodomy statute established a penalty of up to 20 years hard labor and a fine of $1,000. It punished both heterosexual and homosexual conduct, and applied to consensual adults as well. The first recorded sodomy case occurred in 1898 in the case of Republic of Hawaii v. Edwards. In the 1922 case of Territory v. Wilson, the Hawaii Supreme Court unanimously ruled that fellatio (oral sex) was a "crime against nature". The last recorded sodomy case happened in 1958, in Territory v. Bell, in which the state Supreme Court unanimously confirmed that heterosexual sodomy was also a criminal offense.[5]

Law regarding same-sex sexual activity[edit]

Hawaii repealed its sodomy law in April 1972,[6] and revised its sex offences laws in 1986 following a Supreme Court ruling which defended a Georgia ban on sodomy.[7] The original sodomy law repeal was effective from the beginning of 1973.[8]

The age of consent for homosexual activity was originally different to that of heterosexual activity. In 1986, the Hawaii State Legislature lowered the age of consent to 14, regardless of gender or sexual orientation. In 2001, it was raised to 16.[5]

Recognition of same-sex unions[edit]

Lesbian, Gay, Bisexual, Transgender
Rights in Hawaii
Flag of Hawaii.svg

Baehr v. Lewin (1993)
Baehr v. Miike (1996, 1999)
Constitutional Amendment 2 (1998)
House Bill 444 (2009)
Senate Bill 232 (2011)
Hawaii Marriage Equality Act (2013)

Equality Hawaii

LGBT rights in the United States
Same-sex marriage in Hawaii
Reciprocal beneficiary relationships in Hawaii
LGBT history in Hawaii

Portal LGBT.svg LGBT Portal

Same-sex marriage legislation[edit]

On September 9, 2013, Governor Neil Abercrombie announced that he was calling the Hawaii State Legislature into a special session on October 28 to consider a same-sex marriage bill.[9] The bill had wide support in the Senate as well as the required majority in the House.[10] If approved, the bill would take effect on November 18.[11]

On October 28, the Senate Committee on Judiciary and Labor passed the same-sex marriage legislation in a 5-2 vote, sending the bill to a full Senate vote.[12] On October 30, the Senate approved the legislation in a 20-4 vote, sending the bill to the House.[13] On October 31, the bill was debated by both the House Committee on Judiciary and the House Committee on Finance. The House, following extensive public debate and an attempted "citizens' filibuster" of the legislation,[14] voted 30–19 on November 8 in favour of the legislation.[15][16] The bill returned to the Senate for approval of House amendments which expanded religious exemptions, and the Senate provided final legislative approval on November 12, voting 19–4 for passage to the desk of the Governor.[17] Governor Neil Abercrombie signed the bill into law on 13 November; same-sex couples began marrying on December 2, 2013.[18]

History prior to same-sex marriage[edit]

Hawaii's denial of marriage licenses to same-sex marriage couples was challenged in court in 1993. In 1994, the state enacted a statute banning same-sex marriage.[19] In November 1998, the voters of Hawaii voted 69 percent in favor of Hawaii Constitutional Amendment 2, which amended the State Constitution to allow the State Legislature to ban same-sex marriage.[20] The constitutional amendment led the Hawaii Supreme Court to dismiss the lawsuit.[19]

Hawaii established reciprocal beneficiary relationships, a limited form of civil unions, for both same-sex and opposite-sex couples in 1997. Numerous legislative attempts to enact fuller civil unions equivalent with other jurisdictions' civil unions and domestic partnerships failed.

Governor Linda Lingle vetoed a civil union law in 2010.[21] Governor Neil Abercrombie signed the same legislation on February 23, 2011, the first law he signed as governor. The law went into effect on January 1, 2012.[22]

Hawaii has provided benefits to same-sex partners of state employees since 1997.[23]

Adoption and parenting[edit]

Hawaii allows all couples, including same-sex couples, to adopt. Additionally, lesbian couples can access in vitro fertilization (IVF) and artificial insemination treatment. 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.[24] Surrogacy is legal in Hawaii, as no specific law prohibits it, and courts have ruled in favor of gay male couples using the gestational surrogacy process.[25]

Discrimination protections[edit]

Participants at the 2012 Honolulu Pride parade
Rainbow flag at the Maui Sunseeker LGBT Resort

Hawaii law explicitly prohibits discrimination based on both sexual orientation and gender identity or expression in employment, public accommodations and housing.[26]

The discrimination protections for sexual orientation in employment were added in 1991. In 2005, protections were extended to housing and in 2006 to public accommodations, both for sexual orientation and gender identity or expression. In 2011, gender identity or expression protections were extended to employment.[27]

Moreover, the state's anti-bullying law prohibits bullying on the basis of race, color, national origin, sex, gender identity and expression, religion, physical and mental disability, sexual orientation, physical appearance and characteristic and socio-economic status. The law also explicitly includes cyberbullying and harassment, and applies to all public elementary schools and secondary school premises.[28]

In July 2018, the Hawaii Legislature passed a bill, which was then signed into law by the Governor of Hawaii, to provide further protections for students under Title IX. The law ensures students are not denied access to programs or extracurricular activities because of their sexual orientation or gender identity. It went into effect on January 1, 2019.[29][30]

Hate crime law[edit]

Hawaii has a law that addresses hate crime protection for both actual and/or perceived sexual orientation and gender identity or expression.

According to the statute:

  • Sexual orientation is defined as heterosexuality, homosexuality or bisexuality and those "having a history of any one or more of these preferences or being identified with any one or more of these preferences."[31]
  • Gender identity or expression "includes a person's actual or perceived gender, as well as a person's gender identity, gender-related self image, gender-related appearance, or gender-related expression; regardless of whether that gender identity, gender-related self image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person's sex at birth."[32]

Transgender rights[edit]

Previously, Hawaii's Department of Health issued a new birth certificate to a post-operative transgender person only upon receipt of a physician's affidavit verifying that the registrant had undergone sex reassignment surgery.[33] On May 5, 2015, the Hawaii Legislature passed a bill to allow transgender people to change the gender marker on official identification documents without undergoing such surgery. Hawaii Governor David Ige signed the bill into law on July 14, 2015, and the legislation went into effect immediately.[34][35][36] Transgender people can now apply to change the gender marker simply by request.

Since July 1, 2016, Hawaii has banned discrimination based on gender identity or expression within insurance contracts.[37] This also includes insurance coverage of sex reassignment surgeries.[38]

In May 2019, the Hawaii State Legislature passed a bill to add "X" as a sex option on both driver's licenses and birth certificates. The bill passed the House by a voice vote and the Senate by a vote of 24-1. On June 26, 2019, Governor David Ige signed the bill into law, and it went into effect on July 1, 2020. Individuals can change the gender marker by request; no proof of medical documentation is required.[39][40][41]

Conversion therapy[edit]

Since 2013, several bills had been introduced in Hawaii to legally ban conversion therapy on minors, but the bills went nowhere or lapsed for years.

In April 2018, both the Hawaii House of Representatives and the Hawaii Senate passed a bill that legally bans conversion therapy on minors. Due to different versions, the House and the Senate convened in a conference committee. In May 2018, the conference committee passed one version of the bill into a single concise format that was unanimously agreed to and the bill was subsequently signed into law by Governor David Ige. The law went into effect on July 1, 2018.[42][43]

Gay and trans panic defense[edit]

In April 2019, the Hawaii State Legislature passed a bill to abolish the gay and trans panic defenses. Due to different versions of the bill within each legislative chamber, a conference committee had to be set up to pass both versions of the bill, which it did on April 26. The bill was signed into law two months later on June 26, 2019 by Governor David Ige and went into effect immediately.[40][44][45]

Public opinion and demographics[edit]

A 2013 Williams Institute survey showed that 5.1% of the Hawaii adult population identified as LGBT. This was the highest in the United States, behind only the District of Columbia (10%).[46]

A 2017 Public Religion Research Institute (PRRI) opinion poll found that 68% of Hawaii residents supported same-sex marriage, while 20% opposed it and 12% were unsure.[4] The same poll also found that 74% of Hawaiians supported an anti-discrimination law covering sexual orientation and gender identity, while 13% were opposed.[47] Furthermore, 54% were against allowing businesses to refuse to serve gay and lesbian people due to religious beliefs, while 35% supported allowing such religiously-based refusals.[48]

Public opinion for LGBT anti-discrimination laws in Hawaii
Poll source Date(s)
administered
Sample
size
Margin of
error
% support % opposition % no opinion
Public Religion Research Institute January 2-December 30, 2019 207 ? 73% 21% 6%
Public Religion Research Institute January 3-December 30, 2018 226 ? 70% 22% 8%
Public Religion Research Institute April 5-December 23, 2017 298 ? 74% 13% 13%
Public Religion Research Institute April 29, 2015-January 7, 2016 407 ? 76% 21% 4%

Summary table[edit]

Same-sex sexual activity legal Yes (Since 1972)
Equal age of consent (16) Yes
Anti-discrimination laws in every area Yes (Both sexual orientation and gender identity or expression)
Same-sex marriage Yes (Since 2013)
Recognition of same-sex couples (e.g. civil unions) Yes (Since 1997)
Stepchild and joint adoption by same-sex couples Yes (Since 2012)
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
Third gender option Yes (Since 2020)[40]
Automatic parenthood on birth certificates for children of same-sex couples Yes (Couple required to be married)
LGBT anti-bullying law in schools and colleges Yes
LGBT-inclusive sex education required to be taught in schools Yes[49]
Gay and trans panic defense banned Yes
Conversion therapy banned on minors Yes (Since 2018)
Intersex minors protected from invasive surgical procedures No
Access to IVF for lesbian couples Yes
Surrogacy arrangements legal for gay male couples Yes
MSMs allowed to donate blood Yes/No (Since 2020; 3-month deferral period)[50]

See also[edit]

References[edit]

  1. ^ Schmalz, Jeffrey (May 7, 1993). "In Hawaii, Step Toward Legalized Gay Marriage". The New York Times.
  2. ^ "Hawaii passes gay marriage: married same-sex couples soon eligible for federal benefits". Abcnews.go.com. December 14, 2012. Retrieved December 5, 2013.
  3. ^ "Hawaii and the LGBT Community, Same sex marriage and civil unions legalised". www.waimea.com.
  4. ^ a b Public opinion on same-sex marriage by state: Hawaii. PRRI – American Values Atlas.
  5. ^ a b "The History of Sodomy Laws in the United States - Hawai`i". www.glapn.org.
  6. ^ William N. Eskridge, Dishonorable Passions: Sodomy Laws in America, 1861-2003 (NY: Penguin Group, 2008), 201, available online, accessed April 9, 2011
  7. ^ "The History of Sodomy Laws in the United States: Hawaii". Glapn.org. Retrieved December 5, 2013.
  8. ^ "Sodomy laws in US states prior to 2003". Sodomy.org. January 28, 1998. Archived from the original on December 16, 2013. Retrieved December 5, 2013.
  9. ^ "Gov. Abercrombie Calls Special Session on Marriage Equity". Governor of Hawaii. September 9, 2013. Archived from the original on October 30, 2014. Retrieved November 1, 2013.
  10. ^ "Hawaii Legislature Has Votes to Pass Same-Sex Marriage". Civil Beat. September 6, 2013.
  11. ^ SB1, Relating to Equal Rights, Hawaii Legislature
  12. ^ Blair, Chad; Eagle, Nathan (October 29, 2013). "Hawaii Same-Sex Marriage Bill Passes Senate Panel". The Huffington Post. Retrieved October 30, 2013.
  13. ^ Wendy, Osher (October 30, 2013). "Breaking: Same-Sex Marriage Bill Passes Senate in 20-4 Vote". Maui Now. Retrieved October 30, 2013.
  14. ^ Lazo, Alejandro (November 9, 2013). "In Hawaii, 'Citizens' Filibuster' Targets Gay-Marriage Bill". Online.wsj.com. Retrieved December 5, 2013.
  15. ^ "House votes to pass Marriage Equality Bill". Hawaii 24/7. November 6, 2013. Retrieved November 7, 2013.
  16. ^ "State House advances same-sex marriage bill after long session". Honolulu Star-Advertiser. November 7, 2013. Retrieved November 7, 2013.
  17. ^ Zuckerman, Esther (November 12, 2013). "Hawaii legislature sends same-sex marriage bill to Governor's desk". Theatlanticwire.com. Archived from the original on November 17, 2013. Retrieved December 5, 2013.
  18. ^ Associated Press in Honolulu. "Hawaii looks to welcome more visitors after Gov. signs gay marriage into law". Theguardian.com. Retrieved December 5, 2013.
  19. ^ a b "Hawaii Court Lets Gay Marriage Ban Stand". New York Times. December 10, 1999. Retrieved August 27, 2013.
  20. ^ Hawai'i State Constitution Archived July 30, 2010, at the Wayback Machine, Article I, section 23, Hawaii Legislative Reference Bureau. (Accessed 30 November 2006).
  21. ^ TIME: Suzanne Roig, "Hawaii Governor Vetoes Civil-Unions Bill," July 7, 2010, accessed April 13, 2011
  22. ^ Huffington Post: Mark Niesse, "Hawaii Governor Neil Abercrombie Signs Same-Sex Civil Unions Into Law," February 23, 2011, accessed April 13, 2011
  23. ^ National Conference of State Legislatures: "States offering benefits for same-sex partners of state employees", accessed April 16, 2011
  24. ^ "Hawaii's equality profile". Movement Advancement Project.
  25. ^ Human Rights Campaign: Hawaii Adoption Law Archived June 5, 2011, at the Wayback Machine, accessed July 13, 2011
  26. ^ Haw. Rev. Stat. 515-2 – 7; Haw. Rev. Stat. §378-1 – 3; Haw. Rev. Stat. §489-2 - 3.
  27. ^ LGBTQ Nation: "Hawaii Governor signs transgender workplace protections bill into law," May 6, 2011, accessed July 23, 2011
  28. ^ "HB688.DOC". www.capitol.hawaii.gov.
  29. ^ "Hawaii governor signs law protecting LGBTQ students under Ttitle IX". MetroWeekly. July 17, 2018.
  30. ^ "Hawaii HB1489 | 2018 | Regular Session". LegiScan.
  31. ^ Haw. Rev. Stat. § 846-51 (2001). Other relevant provisions include Haw. Rev. Stat. §§ 706-662; 846-54; and 846-52 (2001).
  32. ^ Haw. Rev. Stat. § 846-51, S.B. 616, 2003 Leg., 22nd Leg. (Haw. 2003).
  33. ^ Haw. Rev. Stat. § 338-17.7.
  34. ^ [ap], CATHY BUSSEWITZ (May 5, 2015). "Hawaii legislature approves bill allowing birth certificate gender changes". LGBTQ Nation. Retrieved June 15, 2018.
  35. ^ "Hawaii State Legislature". www.capitol.hawaii.gov. Retrieved June 15, 2018.
  36. ^ "HB 631 - Hawaii 2015 Regular Session - Open States". Open States. Retrieved June 15, 2018.
  37. ^ "Hawaii State Legislature". www.capitol.hawaii.gov. Retrieved June 15, 2018.
  38. ^ Press, CATHY BUSSEWITZ, Associated (April 27, 2016). "Hawaii bans insurance discrimination against transgender patients". LGBTQ Nation. Retrieved June 15, 2018.
  39. ^ "Hawaii Adds Third Gender Option For State-Issued IDs". HuffPost. Retrieved June 27, 2019.
  40. ^ a b c Ladao, Mark (June 26, 2019). "Gov. Ige signs bill allowing non-binary gender designations on driver's licenses". Star Advertiser.
  41. ^ "HB1165 HD2 SD2". Hawaii State Legislature.
  42. ^ Campaign, Human Rights. "Hawaii Legislature Passes Bill to Protect LGBTQ Youth | Human Rights Campaign". Human Rights Campaign. Retrieved June 15, 2018.
  43. ^ "Measure Status". www.capitol.hawaii.gov. Retrieved June 15, 2018.
  44. ^ "Measure Status". www.capitol.hawaii.gov.
  45. ^ "Measure Status". www.capitol.hawaii.gov.
  46. ^ "LGBT Percentages Highest in Washington, DC, and Hawaii". February 15, 2013.
  47. ^ Public opinion on LGBT nondiscrimination laws by state: Hawaii. PRRI – American Values Atlas.
  48. ^ Public opinion on religiously based refusals to serve gay and lesbian people by state: Hawaii. PRRI – American Values Atlas.
  49. ^ "Implementing Sexual Health Education: Background And Actions For Improvement" (PDF). Hawaii State Department of Education. June 2014. Retrieved April 18, 2019.
  50. ^ McNamara, Audrey (April 2, 2020). "FDA eases blood donation requirements for gay men amid "urgent" shortage". CBS News.