LGBT rights in Ohio

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Map of USA OH.svg
StatusLegal since 1972
Gender identityState does not alter sex on birth certificates for transgender people
Discrimination protectionsThere are no statewide protections in Ohio for sexual orientation outside of state employment. Gender identity protections under EEOC v. R.G. & G.R. Harris Funeral Homes
Family rights
Recognition of relationshipsSame-sex marriage since 2015
AdoptionJoint and stepchild adoption legal[1]

Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of Ohio may face some legal challenges not experienced by non-LGBT residents. Same-sex sexual activity is legal in Ohio. Families headed by same-sex spouses are eligible for the same protections available to different-sex spouses,[1] but discrimination based on sexual orientation isn't banned statewide. Same-sex marriage has been legal since June 2015.

A growing number of Ohio cities (including Columbus, Cincinnati, Cleveland, Dayton and Toledo) have passed anti-discrimination ordinances covering sexual orientation and gender identity. Conversion therapy is also banned in a number of cities.

Recent polls have found that over 60% of Ohio's population supports same-sex marriage.[2]

Legality of same-sex sexual activity[edit]

Ohio adopted its first sodomy law in 1885 and later revised it to include fellatio in 1889. In 1972, it became the eighth state to repeal its sodomy statute.[3] Nevertheless, it remained a misdemeanor to express romantic or sexual interest to another person of the same sex. However, in 1979's State v. Phipps, the Supreme Court of Ohio narrowed that provision to cover only cases in which the proposition was "unwelcome".[4][5]

The broad discriminatory nature of the application of Ohio's "unwelcome" importuning[6] law was illustrated in State v. Thompson. In 1999, Eric Thompson had made a sexual pass at a jogger and, after the jogger declined, continued on his way.[7][8][9] The jogger contacted the police, however, and Thompson was arrested and sentenced to 6 months in jail.[7][8][9]

In December 2000, the Ohio Eleventh District Court of Appeals reluctantly upheld the trial court decision.[10] In its decision, the Ohio Eleventh said,

What is not clear is why [the law] would only apply to same sex solicitation and not to opposite sex solicitation ... It is inherently inconsistent for the Ohio legislature to now criminalize homosexual solicitation after it has chosen to decriminalize homosexual conduct between consenting adults.[10]

In May 2002, the Supreme Court of Ohio unanimously overturned Thompson's conviction,[7][8][9] writing

It is well settled that "the First and Fourteenth Amendments forbid discrimination in the regulation of expression on the basis of the content of that expression." Carey v. Brown (1980), 447 U.S. 455, 463. Accordingly, we find that R.C. 2907.07(B) [i.e., Ohio's anti-gay importuning law] is facially invalid under the Fourteenth Amendment to the United States Constitution and Section 2, Article I of the Ohio Constitution. We therefore reverse Thompson's conviction.[8]

As part of a 2003 overhaul to the Sex Offender Registration and Notification Law (SORN), Ohio repealed its anti-gay importuning law.[11]

On June 26, 2003, the United States Supreme Court ruled in Lawrence v. Texas to abolish all remaining sodomy laws and statutes nationwide.[12]

Recognition of same-sex relationships[edit]

Marriage[edit]

Map of Ohio counties, cities, and villages that offer marriage and/or domestic partner benefits either county-wide or in particular cities.
  City or village offers marriage and/or domestic partner benefits
  Marriage and/or county-wide partner benefits through domestic partnership
  Marriage only. County, city, or village does not offer domestic partner benefits

Same-sex marriage has been legal in Ohio since June 2015.

Defense of Marriage Act[edit]

Representative Bill Seitz introduced the Defense of Marriage Act in the state House of Representatives in 2003. It passed the House by a vote of 73–23 in December 2003 and the Senate in an 18–15 vote in January 2004.[13] It was opposed by eleven Democrats, and four Republicans, in the Senate. Governor Bob Taft signed the legislation on February 6, 2004. The legislation was enacted in the aftermath of the Goodridge decision on November 18, 2003, in Massachusetts.

Constitutional amendment[edit]

Ballot Issue 1 of 2004 was a constitutional amendment initiated by the Legislature and approved by a margin of 61%–38%. It amended Article XV, Section 11 of the Ohio Constitution to define marriage as being between "a man and a woman", thus excluding same-sex couples. Official supporters were Ohio Campaign to Protect Marriage and the Traditional Marriage Crusade. The opposition was led by Ohioans for Fairness. Additionally, both Governor Taft and Representative Bill Seitz opposed the amendment on the grounds that it was too vague. This amendment to Ohio's Constitution was later invalidated by the United States Supreme Court in Obergefell v. Hodges.[14]

Obergefell v. Hodges[edit]

On June 26, 2015 the United States Supreme Court ruled in Obergefell v. Hodges that Ohio (along with Michigan, Kentucky and Tennessee) could not deny same-sex couples the right to marry, or refuse to recognize their marriages performed elsewhere; protected under the Fourteenth Amendment to the United States Constitution. This ruling reversed a November 2014 decision by the United States Court of Appeals for the Sixth Circuit, effectively legalizing same-sex marriage in those states and nationwide.[15]

Domestic partnerships[edit]

Nine cities, the village of Yellow Springs, and the counties of Cuyahoga and Franklin offer domestic partnership registries.

Adoption and parenting[edit]

Single LGBT individuals are permitted to adopt in Ohio.[16] Following the U.S. Supreme Court ruling, joint and stepchild adoption are also legal for same-sex spouses in Ohio.[17]

Discrimination protections[edit]

Map of Ohio counties, cities, and villages that have sexual orientation and/or gender identity anti–employment discrimination ordinances.
  Sexual orientation and gender identity with anti–employment discrimination ordinance
  Sexual orientation and gender identity in public employment
  Sexual orientation and gender identity solely in state employment

There are no statewide protections in Ohio for sexual orientation and gender identity outside of state employment. Discrimination based on sexual orientation is prohibited within state employment under an executive order issued by Governor John Kasich on January 21, 2011. He issued a new executive order on December 19, 2018 to include gender identity or expression.[18]

About thirty Ohio cities and counties have anti-discrimination ordinances prohibiting employment discrimination on the basis of sexual orientation and gender identity. These are Cuyahoga and Summit counties,[19] and Akron, Athens, Bexley, Bowling Green, Canton,[20] Cincinnati, Cleveland, Cleveland Heights, Columbus, Coshocton, Dayton, Dublin, East Cleveland, Kent, Lakewood, Newark, Oberlin,[21] Olmsted Falls, Oxford, South Euclid, Springfield,[22][23] Toledo, Yellow Springs, and Youngstown. Others, including Franklin, Hamilton, Lucas, Montgomery and Wood counties, and Gahanna, Hamilton, Laura, and Lima, have protections but for city/county employees only.[24]

Furthermore, gender identity is protected under federal law, through a ruling of the Sixth Circuit Court of Appeals (see below).

EEOC v. R.G. & G.R. Harris Funeral Homes[edit]

On March 7, 2018, the United States Court of Appeals for the Sixth Circuit (covering Kentucky, Michigan, Ohio and Tennessee) ruled that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination against transgender people under the category of sex. It also ruled that employers may not use the Religious Freedom Restoration Act to justify discrimination against LGBT people. Aimee Stephens, a transgender woman from Michigan, began working for a funeral home and presented as male. In 2013, she told her boss that she was transgender and planned to transition. She was promptly fired by her boss who said that "gender transition violat[es] God's commands because a person's sex is an immutable God-given fit."[25] With this decision, discrimination in the workplace based on gender identity is now banned in Ohio. An appeal to the case is set to be heard by the Supreme Court in the 2019 term under R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission.

Hate crime law[edit]

Ohio's hate crime law address violence based on race, color, religion or national origin, but not sexual orientation or gender identity. However, federal law does provide some protections within the state.

Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act[edit]

The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, also known as the Matthew Shepard Act, is an American Act of Congress, passed on October 22, 2009, and signed into law by President Barack Obama on October 28, 2009, as a rider to the National Defense Authorization Act for 2010 (H.R. 2647). Conceived as a response to the murders of Matthew Shepard and James Byrd, Jr., the measure expands the 1969 United States federal hate crime law to include crimes motivated by a victim's actual or perceived gender, sexual orientation, gender identity, or disability. The bill also removes the prerequisite that the victim be engaging in a federally protected activity like voting or going to school, gives federal authorities greater ability to engage in hate crimes investigations that local authorities choose not to pursue, provides $5 million per year in funding for fiscal years 2010 through 2012 to help state and local agencies pay for investigating and prosecuting hate crimes and requires the Federal Bureau of Investigation (FBI) to track statistics on hate crimes based on gender and gender identity (statistics for the other groups were already tracked).

Freedom of expression[edit]

In 2012, 16-year-old high school student Maverick Couch, represented by Lambda Legal, sued the Waynesville Local School District after being told he could not come to school wearing a T-shirt with the words "Jesus is not a homophobe". The board explained their position, "Wayne Local School District Board of Education had the right to limit clothing with sexual slogans, especially in light what was then a highly charged atmosphere, in order to protect its students and enhance the educational environment. Consequently, the high school principal was well within the bounds of his authority to request that the student remove his T-shirt and refrain from wearing the T-shirt in the future.".[26] The suit ended in a judgement in federal court in Cincinnati agreed to by all parties to the suit that affirmed Couch's right to wear the shirt to school and ordered the school district to pay $20,000 in damages and legal fees.[27][28]

Gender identity and expression[edit]

Following a 1987 court case, In re Ladrach, Ohio does not allow persons born in the state to amend the sex information on their birth certificates following sex reassignment surgery.[29]

Transgender people can, however, change their legal name/gender on their Ohio ID. In order for them to do so, they must submit a court order certifying the name change and/or a Declaration of Gender Change form signed by a physician or psychologist certifying the applicant's gender identity.[30]

In late March 2018, four transgender Ohioans sued the Ohio Department of Health, seeking to have In re Ladrach overruled and be issued birth certificates reflecting their gender identity.[31] At the time the lawsuit was filed, Ohio was one of just three states where transgender people were banned from amending their birth certificates.

Conversion therapy[edit]

Delta Air Lines at the 2017 Cincinnati Pride parade

A bill to prohibit the use of conversion therapy on LGBT minors in Ohio was introduced by Senator Charleta Tavares in February 2015. The bill, however, died without any legislative action.[32]

Local bans[edit]

On December 9, 2015, the Cincinnati City Council voted 7-2 in favor of Ordinance 373, an ordinance banning conversion therapy on minors, and it went into effect on January 9, 2016.[33] Cincinnati became the first city in the United States to ban the use of conversion therapy on LGBT minors.

On February 7, 2017, the Toledo City Council unanimously approved a ban on conversion therapy.[34]

On March 27, 2017, the Columbus City Council approved legislation prohibiting conversion therapy with the aim of altering the sexual orientation or gender identity of youth.[35][36] Columbus became the 3rd city in Ohio to ban the use of conversion therapy on LGBT minors.

Dayton and Athens followed suit in July and August 2017, respectively.[37][38]

Public opinion[edit]

A 2017 Public Religion Research Institute (PRRI) opinion poll found that 61% of Ohioans supported same-sex marriage, while 33% opposed it and 6% were unsure.[2]

The same poll found that 69% of Ohioans supported an anti-discrimination law covering sexual orientation and gender identity. 25% were opposed.[39] Furthermore, 60% were against allowing public businesses to refuse to serve LGBT people due to religious beliefs, while 34% supported allowing such religiously-based refusals.[40]

Summary table[edit]

Same-sex sexual activity legal Yes (Since 1972)
Equal age of consent Yes
Anti-discrimination laws in employment No/Yes (In state employment for sexual orientation, some counties and cities have additional protections; since 2018 discrimination based on gender identity or expression has been illegal)
Anti-discrimination laws in the provision of goods and services No/Yes (Some cities)
Anti-discrimination laws in all other areas No/Yes (Some cities)
Same-sex marriages Yes (Since 2015)
Single LGBT individuals may adopt Yes
Stepchild adoption by same-sex couples Yes (Since 2015)
Joint adoption by same-sex couples Yes (Since 2015)
Lesbians, gays and bisexuals allowed to serve openly in the military Yes (Since 2011)
Transgender people allowed to serve openly in the military Yes (Since 2018)
Conversion therapy banned on minors No/Yes (Some cities only)
Right to change legal gender No/Yes (On IDs, but not on birth certificates)
MSMs allowed to donate blood Yes/No (1 year deferral period)

See also[edit]

References[edit]

  1. ^ a b "Ohio Marriage and Stepparent law; The Columbus Dispatch". the columbus dispatch. July 5, 2015. Retrieved July 7, 2015.
  2. ^ a b Public opinion on same-sex marriage by state: Ohio
  3. ^ 1972 Ohio Laws H.B. 511, Revised Code § 2907.07(B)
  4. ^ Eskridge, William N. (2008). Dishonorable Passions: Sodomy Laws in America, 1861-2003. NY: Viking Penguin. pp. 49, 50, 180. ISBN 9780670018628.
  5. ^ State v. Phipps, 389 N.E.2d 1128 (Ohio Supreme Court, 1979).
  6. ^ Definition: "to make immoral or lewd advances toward". Example: "arrested for importuning a male person in the park". Citation: “Importune”. Webster's Third New International Dictionary, Unabridged. 2018.. Web. 16 Jun. 2018.
  7. ^ a b c State v. Thompson, 95 Ohio St.3d 264, 2002-Ohio-2124
  8. ^ a b c d "Supreme Court Invalidates Same-Sex Importuning Law". The Supreme Court of Ohio & The Ohio Judicial System. May 15, 2002. Retrieved June 16, 2018.
  9. ^ a b c "Ohio high court overturns same sex law". UPI.com (United Press International, Inc.). May 15, 2002. Retrieved June 16, 2018.
  10. ^ a b "Ohio 'Importuning' Law May Face State Supremes". GLAPN.com. May 4, 2001. Retrieved June 16, 2018.
  11. ^ "Law alters sexual offender policies". The Lantern. August 11, 2003.
  12. ^ Lawrence v. Texas, 539 U.S. 558 (2003)
  13. ^ Sub. H.B. 272 Archived September 29, 2011, at the Wayback Machine
  14. ^ "Ohio citizens approve Issue 1". The Post (Ohio University). November 3, 2004. Retrieved December 6, 2013.
  15. ^ "The Latest: Same-sex marriages underway in Ohio". Fox 19 Now. June 26, 2015. Archived from the original on June 27, 2015. Retrieved June 26, 2015.
  16. ^ "Ohio Adoption Law Human Rights Campaign". Hrc.org. December 14, 2009. Retrieved November 2, 2013.
  17. ^ "Ohio Stepparent Adoption law; Columbus Dispatch". columbusdispatch. July 5, 2015. Retrieved July 7, 2015.
  18. ^ Executive Order 2018-12K, Governor of Ohio
  19. ^ 169.21 ANTI-DISCRIMINATION/ANTI-HARASSMENT COMPLAINT POLICY/PROCEDURE
  20. ^ 547.02 UNLAWFUL DISCRIMINATORY PRACTICES DEFINED AND PROHIBITED.
  21. ^ Ordinance 17-50
  22. ^ To amend Ordinance No. 91-90, passed March 12, 1991, and commonly known as the Codified Ordinances of The City of Springfield, Ohio, by the amendment of various sections to prohibit discrimination based on sexual orientation.
  23. ^ Sexual orientation added to Springfield non-discrimination ordinance
  24. ^ Employment Discrimination Based on Sexual Orientation and Gender Identity in Ohio
  25. ^ "Businesses Can't Fire Trans Employees for Religious Reasons, Federal Appeals Court Rules in Landmark Decision". Slate. March 7, 2018.
  26. ^ Martin, Shawn (April 4, 2012). "Ohio teen Maverick Couch takes school to court over 'Jesus is not a homophobe' shirt". ABC15. Retrieved December 15, 2012.
  27. ^ Budd, Lawrence (May 4, 2012). "District proposes T-shirt case settlement". The Western Star. Retrieved December 15, 2012.
  28. ^ Michael, Gryboski (May 22, 2012). "Court Judgment: Ohio Student Can Wear 'Jesus Is Not a Homophobe' Shirt,". Christian Post. Retrieved December 15, 2012.
  29. ^ Levi, Jennifer L.; Monnin-Browder, Elizabeth E., eds. (2012). Transgender Family Law: A Guide to Effective Advocacy. Bloomington, IN: AuthorHouse. pp. 59n58. ISBN 9781468554533.
  30. ^ ID Documents Center: Ohio National Center of Transgender Equality
  31. ^ Four transgender people sue Ohio over state's birth certificate policy, NBC News, April 3, 2018
  32. ^ OH SB74 | 2015-2016 | 131st General Assembly
  33. ^ Council votes to ban gay 'conversion' therapy in Cincinnati
  34. ^ Toledo City Council approves conversion therapy ban
  35. ^ "Columbus Bans 'Ex-Gay' Therapy To Minors". On Top Magazine. Retrieved March 30, 2017.
  36. ^ Press, Associated. "Columbus Council Bans Conversion Therapy by Mental Health Professionals". Retrieved March 30, 2017.
  37. ^ Dayton looks to ban gay-conversion therapy for youth
  38. ^ Conversion Therapy Banned in Athens
  39. ^ Public opinion on LGBT nondiscrimination laws by state: Ohio
  40. ^ Public opinion on religiously based refusals to serve gay and lesbian people by state: Ohio