LGBT rights in New Jersey

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Map of USA NJ.svg
StatusLegal since 1978
Gender identityTransgender people allowed to change legal gender
Discrimination protectionsSexual orientation and gender identity protections (see below)
Family rights
Recognition of relationshipsCivil unions since 2007, Same-sex marriage since 2013
AdoptionSame-sex couples may adopt jointly

Lesbian, gay, bisexual, and transgender (LGBT) persons in New Jersey have the same rights and responsibilities as heterosexuals. LGBT persons in New Jersey enjoy strong protections from discrimination, and have had the right to marry since October 21, 2013.

Since the late 1960s, state-sanctioned discrimination against LGBT people has become increasingly less acceptable. A series of court decisions have enlarged the areas of LGBT rights. LGBT people were allowed to gather in drinking establishments in 1967 and allowed to have intimate relationships in 1978. Anti-gay adoption policies by New Jersey's state welfare agency were dropped in 1997. The New Jersey Law Against Discrimination, amended to include sexual orientation and gender identity in 1991 and 2006, prohibits discrimination in employment, housing, and public accommodations. Criminal law deters bias-motivated crimes against LGBT individuals, and New Jersey schools are required to adopt anti-bullying measures that address LGBT students. In August 2013, Governor Chris Christie signed a bill into law prohibiting mental health providers from providing so-called "conversion therapy" to LGBT minors.

New Jersey is frequently referred to as one of the United States' most LGBT-friendly states,[1] with several gay establishments and venues throughout the state, notably in Jersey City, Asbury Park, Maplewood, Atlantic City, Ocean Grove, Edison and Cape May among others.[2] Recent opinion polls have shown very high levels of support for same-sex marriage.[3]

Legality of same-sex sexual activity[edit]

Sodomy was a capital crime in New Jersey from when the Duke of York took control of the province from the Dutch. When the province was divided into East and West Jersey, the Quaker-dominated West maintained a criminal code that was silent on the issue of sodomy. After reunification and independence, New Jersey abrogated English law, but created its own statuary sodomy law, the penalties for which were often modified.[4]

Court decisions in New Jersey gradually restricted the application of sodomy laws to exclude first married couples,[4] and then all heterosexual sexual relations. In the last court case in this series, State v. Ciuffini (1978), a state appellate court struck down the state's sodomy laws as unconstitutional, finding that "the individual's right of personal privacy and autonomy prevail[s] over the state's right to regulate private sexual conduct."[5] New Jersey repealed its sodomy law in 1978.[6]

Freedom of assembly[edit]

From its establishment in 1933, the New Jersey Division of Alcoholic Beverage Control regularly harassed LGBT bar patrons. It interpreted a regulation preventing licensees from serving "any known criminals, gangsters, racketeers, swindlers, prostitutes, female impersonators or other persons of ill repute" to revoke the liquor licenses of bars serving a predominantly homosexual customer base.[7] In 1967, a state court invalidated this interpretation in One Eleven Liquors, Inc. vs. Division of Alcoholic Beverage Commission.[8]

Recognition of same-sex relationships[edit]

Marriage, as the popular vehicle of state recognition of relationships, is mentioned in 850 of New Jersey's statutes.[9] Marriage between persons of the same sex, however, are not mentioned in the statutes, which do not ban it either.[8] The statutes were challenged in Lewis v. Harris (2006), where the Legislature chose civil unions over marriage in the resulting mandate for equal rights and responsibilities of marriage for same-sex couples.[10] Same-sex couples legally married in another state or country may be divorced in New Jersey, a Superior Court has ruled.[11]

New Jersey has provided benefits to same-sex partners of state employees since 2004.[12]

Following a court decision on September 27, the state, effective October 21, 2013, has recognized and performed same-sex marriages. Governor Chris Christie attempted to appeal this decision to the New Jersey Supreme Court but on October 19, 2013 the court turned down his appeal and the lower court's ruling stands.[13]

Adoption and parenting[edit]

New Jersey never had a policy of denying adoption of children based on sexual orientation, however, the New Jersey Division of Youth and Family Services had a policy of denying consent to joint adoption by unmarried couples. This was changed in 1997. The sexual orientation of parents is not necessarily considered a dispositive factor in considering the best interests of the child, be they prospective in adoption or current in child custody cases.[8]

There are no legal restrictions on lesbians getting IVF access.

Since 2011, bills have been introduced and passed by the New Jersey Legislature with no "veto-proof margins" to legally allow commercial surrogacy several times, but were immediately vetoed by Governor of New Jersey Chris Christie. Then in May 2018, the New Jersey Legislature passed (House voted 51-16 and Senate voted 25-10) a bill to legally allow commercial surrogacy with "veto-proof margins".[14][15] Governor Phil Murphy on May 30, 2018 signed the bill into law and it will go into effect from January 1, 2019. Several U.S. jurisdictions have similar surrogacy contract laws.[16]

Discrimination protections[edit]

Law Against Discrimination[edit]

New Jersey's Law Against Discrimination was amended in 1991 to include "affectional or sexual orientation" and in 2006 to include "gender identity and expression" as prohibited categories of discrimination.[17][18] The law prohibits discrimination in employment and public accommodations, which the New Jersey Supreme Court took to be as broad as including the Boy Scouts of America for its public dealings, which was reversed by the Supreme Court of the United States in Boy Scouts of America v. Dale.[8] The New Jersey Law Against Discrimination also protects individuals from discrimination based upon a perceived sexual orientation.[19] On July 27, 2015, the National Executive Board of the Boy Scouts of America, ratified a resolution that removes the national restriction on openly gay adult leaders and employees.[20]

Hate crimes[edit]

Enhanced penalties are available for crimes committed in New Jersey with a bias based on the presumed sexual orientation and gender identity or expression of the victim, as well as sensitivity training sentencing options for judges.[21]

Conversion therapy[edit]

In June 2013, the New Jersey Legislature passed legislation making sexual orientation change efforts (conversion therapy) illegal when directed at minors.[22][23] Governor Chris Christie signed the legislation on August 19.[24] New Jersey was the second U.S. state to enact such legislation, after California.

Represented by the Liberty Counsel, practitioners of conversion therapy, including the National Association for Research and Therapy of Homosexuality and the American Association of Christian Counselors, challenged the law in federal court. They lost in District Court on November 8, 2013,[25] and again on appeal to the Third Circuit Court of Appeals on September 11, 2014.[26] They asked the U.S. Supreme Court to hear their appeal on December 3,[27] which declined to do in May 2015. In another case heard in Hudson County, a judge ruled that those who promote the therapy by claiming to cure a disorder are committing fraud.[28]

In 2019, anti-LGBT group Liberty Counsel made another attempt to challenge the constitutionality of New Jersey's ban on conversion therapy, in the case of King v. Murphy. On April 15, 2019, the Supreme Court of the United States declined to hear the challenge, thereby upholding New Jersey's ban on conversion therapy.[29][30]

Gender identity and expression[edit]

Since February 1, 2019, transgender persons may request an amended birth certificate with a corrected name and sex without undergoing surgery or any medical procedures.[31][32]

On June 28, 2015, the New Jersey General Assembly passed (Senate by a vote of 30-6 and the House by a vote of 51-23) a bill to make it easier for people on the basis of gender identity and intersex status, access and/or change to their birth certificates without any surgery. Republican Governor of New Jersey Chris Christie as expected, vetoed the bill on August 10, 2015. This was the second time he had vetoed the same bill, that was passed two years prior.[33][34][35] Three additional votes were required in the Assembly for a successful veto override to implement the legislation.[36] [37]

In May 2018, the New Jersey Legislature passed 3 transgender rights bills. The 3 bills set up and established a "Transgender Equality Task Force",[38] repealed the legal requirement for sex reassignment surgery on birth certificates, created a third gender category on official documents (labelled as "X"),[39][40] and included transgender and intersex people on death certificates.[41] In June 2018, following passage in the Legislature, Governor of New Jersey Phil Murphy signed into law all 3 bills.[31][42][43][44] The birth certificate law went into effect the first day of the seventh month after approval (i.e. 1 February 2019),[45] whilst the death certificate law went into effect on 4 July 2018,[46] and the "Transgender Equality Task Force" law went into force immediately.[47]

Educational inclusion[edit]

Sex education (or "family life education") is mandatory in all New Jersey public schools. Under state law, the lessons must be current, medically accurate and supported by extensive research. They should also be developmentally appropriate, gender and culturally sensitive, and bias-free. The class covers a range of topic, including human relationships and sexuality, the prevention of unhealthy sexual behaviors that might lead to sexually transmitted diseases, consent, abstinence, and the demands of pregnancy and parenting. Discussions on sexual orientation are required from the end of eighth grade (age 13-14), and include tolerance and sensitivity, harassment, name-calling and stereotyping. In fourth grade (age 9-10), students are taught that "there are different kinds of families; family members have different roles and responsibilities; and families share love, values, and traditions, provide emotional support for each other, and set boundaries and limits". Parents may choose to have their child(ren) opt out if the class is "in conflict with his or her conscience or sincerely held moral or religious beliefs".[48]

Anti-LGBT bullying is also prohibited in New Jersey schools, and all schools are required to post and distribute their anti-bullying policies.[49] The Pride Center of New Jersey opened its doors in 1994 support the social needs of the LGBT community and youth across the state.[50]

In September 2018, New Jersey issued guidance to schools to promote transgender-friendly policies on the use of names and pronouns, participation in activities, use of facilities and student records.[51]

In January 2019, Governor Phil Murphy signed into law a bill requiring public schools in the state to teach about "the political, economic and social contributions of individuals who are [LGBT]". Starting in the 2020-2021 school year, schools must teach LGBT history.[51] The law compels the inclusion of the contributions of persons with disabilities and lesbian, gay, bisexual, and transgender people into educational textbooks and the social studies curricula in the state. It also amended existing education and bullying laws by adding "sexual orientation, gender identity or expression, disability and religion" - along side with race, ethnicity, nationality, gender, and colour that schools are prohibited from sponsoring negative activities about or teaching students about in an adverse way.[52][53][54]

Public opinion[edit]

A 2017 Public Religion Research Institute poll found that 68% of New Jersey residents supported same-sex marriage, while 23% were opposed and 9% were unsure.[3] Additionally, 70% supported discrimination protections covering sexual orientation and gender identity. 21% were opposed.

Summary table[edit]

Same-sex sexual activity legal Yes (Since 1978)
Equal age of consent Yes
Anti-discrimination laws for sexual orientation Yes (Since 1991)
Anti-discrimination laws for gender identity and expression Yes (Since 2006)
LGBT anti-bullying law in schools and colleges Yes
Same-sex marriage Yes (Since 2013)
Recognition of same-sex couples (e.g. civil union) Yes
Stepchild adoption by same-sex couples Yes
Joint adoption by same-sex couples Yes
Lesbians, gays and bisexuals allowed to serve openly in the military Yes (Since 2011)
Transgender people allowed to serve openly in the military X
Third gender option Yes
Right to change legal gender without sex reassignment surgery Yes (Since 2015)
Gay and trans panic defense banned X
Conversion therapy banned on minors Yes (Since 2013)
Access to IVF for lesbians Yes
LGBT-inclusive sex education required to be taught in schools Yes
Surrogacy arrangements legal for gay male couples Yes (Since 2019)
MSMs allowed to donate blood Yes/No (1 year deferral period)

See also[edit]

References[edit]

  1. ^ "The best and worst states for LGBT equality".
  2. ^ Where are the most LGBT-friendly towns in N.J.?
  3. ^ a b PRRI: American Values Atlas 2017, New Jersey
  4. ^ a b Painter, George (August 10, 2004). "New Jersey". The History of Sodomy Laws in the United States. Gay and Lesbian Archives of the Pacific Northwest. Retrieved June 29, 2009.
  5. ^ Hickey, Adam (December 2009). "Between Two Spheres: Comparing State and Federal Approaches to the Right to Privacy and Prohibitions Against Sodomy" (PDF). Yale Law Journal. 111 (993): 1023–1024. Archived from the original (PDF) on July 16, 2011. Retrieved June 29, 2009.
  6. ^ William N. Eskridge, Dishonorable Passions: Sodomy Laws in America, 1861-2003 (NY: Penguin Group, 2008), 201n, available online. Retrieved April 9, 2011
  7. ^ Romano, Frank (August 1, 2008). "GAY HISTORY: The Manny's Den legal case". Out in Jersey magazine. Retrieved June 29, 2009.
  8. ^ a b c d "III. Current New Jersey Law Pertaining to Sexual Orientation" (PDF). Final Report of the Task Force on Gay and Lesbian Issues. New Jersey Supreme Court. September 26, 2001. Archived from the original (PDF) on November 4, 2004. Retrieved June 29, 2009.
  9. ^ "Lower-Court Loss in Lawsuit Seeking Marriage for Same-Sex Couples in New Jersey 'Propels Us Forward' To Higher Courts Where Case Will Be Decided, Lambda Legal Says". Lambda Legal. August 5, 2003. Archived from the original on November 27, 2009. Retrieved June 29, 2009.
  10. ^ Roehr, Bob (December 20, 2006). "NJ Civil Union Bill Passes" (PDF). Windy City Times. Retrieved June 29, 2009.
  11. ^ "ACLU-NJ Wins Case Allowing Same-Sex Couple To Divorce in NJ". American Civil Liberties Union of New Jersey. February 6, 2009. Archived from the original on December 5, 2010. Retrieved March 2, 2011.
  12. ^ National Conference of State Legislatures: "States offering benefits for same-sex partners of state employees", accessed April 16, 2011
  13. ^ Bob Jordan, Asbury Park (N.J.) Press (October 18, 2013). "New Jersey court to allow same-sex marriages". Usatoday.com. Retrieved November 2, 2013.
  14. ^ Commercial Surrogacy on Path to Legalization in NJ, NY, but Some Donor-Conceived Adults Oppose the Laws
  15. ^ NJ Legislature Passes Law to Keep Up with Reproductive Technologies
  16. ^ Here's what N.J.'s new surrogacy law means for couples and women willing to give birth to their child
  17. ^ New Jersey Lawyer: "Discrimination", accessed June 19, 2012
  18. ^ "New Jersey Adds "Gender Identity and Expression" as a Protected Category Under State Civil Rights Law". Jackson Lewis LLP. December 20, 2006. Archived from the original on September 27, 2007. Retrieved June 25, 2009.
  19. ^ "NJ Protects Perceived Sexual Orientation.]".
  20. ^ "Archived copy". Archived from the original on September 2, 2016. Retrieved August 10, 2015.CS1 maint: archived copy as title (link)
  21. ^ Wiener, Robert (January 10, 2008). "Lawmakers pass hate-crimes bill". New Jersey Jewish News. Retrieved June 29, 2009.
  22. ^ "New Jersey poised to become second state to ban anti-gay therapy". Reuters. June 24, 2013.
  23. ^ "N.J. Senate sends bill banning gay-to-straight 'conversion therapy' to Christie". NJ.com. June 27, 2013.
  24. ^ "Chris Christie Signs Ban On Gay Conversion Therapy". Huffington Post. August 19, 2013.
  25. ^ Johnson, Chris (November 9, 2013). "Court upholds N.J. ban on 'ex-gay' therapy". Washington Blade. Retrieved September 13, 2014.
  26. ^ Voreacos, David (September 11, 2014). "New Jersey Ban on Gay-Conversion Therapy Upheld on Appeal". Bloomberg News. Retrieved September 13, 2014.
  27. ^ Johnson, Chris (December 9, 2014). "Supreme Court asked to review N.J. 'ex-gay' therapy ban". Washington Blade. Retrieved December 9, 2014.
  28. ^ Therapists who say homosexuality can be cured are committing consumer fraud, N.J. judge says
  29. ^ "Supreme Court declines to hear challenge against LGBT conversion therapy ban". Out In Jersey. April 15, 2019.
  30. ^ https://www.nj.com/news/2019/04/nj-ban-on-gay-to-straight-conversion-therapy-for-kids-wont-be-overturned-as-us-supreme-court-rejects-challenge.html
  31. ^ a b Garden State Equality: Governor Murphy Signs Signature Trans Equality Bills
  32. ^ "Sources of Authority to Amend Sex Designation on Birth Certificates". Lambda Legal. Retrieved August 3, 2009.
  33. ^ Gov. Christie vetoes second bill for transgender New Jerseyans
  34. ^ Christie again vetoes trans birth certificate bill
  35. ^ Gov. Christie once again vetoes trans birth certificate bill
  36. ^ NJ would ease changing certificate due to sex change
  37. ^ New Jersey legislature passes birth certificate reform bill
  38. ^ NJ S705 | 2018-2019 | Regular Session
  39. ^ "N.J. just added a 3rd gender option to its birth certificates". nj.com. February 1, 2018.
  40. ^ NJ S478 | 2018-2019 | Regular Session
  41. ^ NJ S493 | 2018-2019 | Regular Session
  42. ^ New Jersey Lawmakers Send Transgender Rights Bills to Phil Murphy
  43. ^ Here's how N.J. could soon give a big boost to transgender rights
  44. ^ New transgender rights bills advance support for gender identity
  45. ^ ASSEMBLY, No. 1718
  46. ^ An Act concerning information included on death certificates and amending R.S.26:6-7
  47. ^ An Act establishing the Transgender Equality Task Force to assess legal and societal barriers to equality and provide recommendations to Legislature.
  48. ^ "COMPREHENSIVE HEALTH AND PHYSICAL EDUCATION". State of New Jersey, Department of Education.
  49. ^ Sklar, Roberta (January 17, 2008). "New Jersey makes transgender-inclusion unequivocal in its hate crimes and safe schools laws". National Gay and Lesbian Task Force. Archived from the original on July 2, 2009. Retrieved June 29, 2009.
  50. ^ "Pride Center of New Jersey". 2013. Retrieved July 27, 2016.
  51. ^ a b "New Jersey becomes second state in nation to require that schools teach LGBT history". northjersey.com. February 2, 2019.
  52. ^ "N.J. law to require schools to teach LGBT history in class". 6ABC Philadelphia. February 4, 2018.
  53. ^ "New Jersey to require schools to teach LGBT history". Fox 8 Cleveland. February 4, 2019.
  54. ^ Dreier, Natalie (February 4, 2019). "New Jersey schools to be required to teach LGBT history". Springfield News-Sun.