LGBT rights in Utah

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LGBT rights in Utah
Map of USA UT.svg
Utah (US)
Same-sex sexual activity legal? Legal since 2003
(Lawrence v. Texas)
Gender identity/expression Transgender persons can change their legal gender without surgery
Discrimination protections Yes, both sexual orientation and gender identity statewide (employment and housing only, public accommodation not included)
Family rights
Recognition of
relationships
Same-sex marriage legal since 2014
Adoption Yes

Rights for Lesbian, gay, bisexual, and transgender (LGBT) people in Utah have become increasingly enacted since 2014, despite the state's reputation as socially conservative and highly religious. Same-sex marriage has been legal there since the state's ban on same-sex marriage was ruled unconstitutional by a federal court on October 6, 2014. In addition, statewide anti-discrimination laws now cover sexual orientation and gender identity in employment and housing. In spite of this, there are still a few differences between treatment of LGBT people and the rest of the population.

Law regarding same-sex sexual activity[edit]

The Utah sodomy law (Utah Code Section 76-5-403) criminalized same-sex sexual activity until 2003 when the U.S. Supreme Court invalidated all state sodomy laws with its landmark 6 to 3 opinion in Lawrence v. Texas. The opinion stated that private consensual sexual conduct is protected by the due process and equal protection rights that are guaranteed by the United States Constitution.

The state sodomy law applied to heterosexuality and homosexuality as a Class B misdemeanor, and provided punishment of up to six months in jail and up to a $1,000 fine.

Openly gay Utah Senator Scott McCoy, D-Salt Lake, sponsored the bill, S.B. 169 ("Sodomy Amendments"), unsuccessfully in 2007. The bill would have amended the state sodomy law by repealing its unconstitutional parts. The bill failed without consideration.[1] The law remains published in the Utah Code.[2]

After lobbying in 2011 by gay activist David Nelson, the Utah Department of Public Safety amended its administrative rule which restricted the issuance of the state concealed-firearm permit to individuals who were ever convicted of violating the state sodomy law.[3]

Recognition of same-sex relationships[edit]

Same-sex marriage in Utah has been legal since October 6, 2014, following the resolution of a lawsuit challenging the state's ban on same-sex marriage. Same-sex marriage was also legal in Utah, from December 20, 2013 to January 6, 2014.

In response to the 1993 Baehr v. Miike court case on same-sex marriage in Hawaii, Utah Representative Norm L. Nielsen, R-Utah County, sponsored the bill, H.B. 366 ("Recognition of Marriages"), in 1995. The bill passed the Legislature. It prohibits state recognition of same-sex marriages which are performed in other states and nations. It was the first such law in the United States.[4]

Utah voters approved the ballot referendum, Utah Constitutional Amendment 3, in 2004 that constitutionally defines marriage as the legal union between a man and a woman and restricts unmarried domestic unions. The referendum was approved by a margin of 65.8 percent to 33.2 percent.[5]

On March 25, 2013, three same-sex couples, including one already married in Iowa, filed a lawsuit in the United States District Court for the District of Utah seeking to declare Utah's prohibition on the recognition of same-sex marriages unconstitutional under the Due Process and Equal Protection clauses of the United States Constitution.[6] The court heard arguments on December 4. The state argued that there was "nothing unusual" in enforcing policies that encourage "responsible procreation" and the "optimal mode of child-rearing". Plaintiffs' attorney contended that the policy is "based on prejudice and bias that is religiously grounded in this state".[7] On December 20, 2013, District Judge Robert J. Shelby found the same-sex marriage ban unconstitutional and ordered the state to cease enforcing the ban.[8] The U.S. Supreme Court stayed the order of the District Court on January 6, 2014 pending the appeal of its decision to the Tenth Circuit.[9] On June 25, 2014, the Tenth Circuit upheld the lower court ruling, a decision that sets a precedent for every state within the circuit. However, the Tenth Circuit stayed this ruling. The U.S. Supreme Court refused the appeal from the state on October 6, 2014, requiring Utah to license and recognize same-sex marriages.

Adoption and parenting[edit]

Utah Representative Nora B. Stephens, R-Davis County, sponsored the bill, H.B. 103 ("Amendments to Child Welfare"), in 1998. It passed the Legislature. The law requires state agencies to give adoption priority to married couples and to prohibit adoptions by cohabitating unmarried couples. Openly lesbian Utah Representative Jackie Biskupski, D-Salt Lake, spoke against the bill.[10]

A single person can adopt in Utah, except that by Utah law "a person who is cohabiting in a relationship that is not a legally valid and binding marriage." A single person not cohabiting can adopt.[11] Utah law states that "a child may be adopted by adults who are legally married to each other in accordance with the laws of this state, including adoption by a stepparent."[11]

On December 20, 2013, same-sex marriage became legal in Utah; thus legalizing same-sex adoption for same-sex couples.[8] However, the U.S. Supreme court stayed the order. On October 6, 2014, the Supreme Court refused to hear the case, and the hold was lifted.

Utah's capital, Salt Lake City, and its suburbs have the highest rate — 26 percent — of same-sex couples sharing parenthood, according to an analysis of census data by the Williams Institute at the UCLA School of Law.[12]

Discrimination protections[edit]

Map of Utah cities and counties that have had sexual orientation and/or gender identity anti–employment discrimination ordinances before enactment of the statewide anti-discrimination law
  Sexual orientation and gender identity with anti–employment discrimination ordinance
  Did not protect sexual orientation and gender identity in employment

On March 6, 2015, the Utah State Senate passed, in a 23-5 vote, statewide legislation to ban discrimination based on sexual orientation and gender identity in employment and housing (public accommodation not included) with exemptions for religious organisations and their affiliates such as schools and hospitals, as well as Boy Scouts. The bill also would protect employees from being fired for talking about religious or moral beliefs, as long as the speech was reasonable and not harassing or disruptive. The measure was backed by the Church of Jesus Christ of Latter-day Saints.[13][14][15] It was approved by the state House on March 11, in a 65-10 vote.[16][17] On March 12, 2015, Governor Gary Herbert signed the bill into law.[18]

Prior to that, Utah Representative Christine Johnson, D-Salt Lake, sponsored an anti-discrimination bill, H.B. 89 ("Antidiscrimination Act Amendments"), in 2008. The bill, however, failed to pass the Legislature. It would have prohibited employment discrimination based on sexual orientation or gender identity.[19] She reintroduced the bill unsuccessfully in 2009 and 2010. She also sponsored the bill, H.B. 128 ("Antidiscrimination Study Related to Employment and Housing"), in 2010. The bill would have required a study of employment and housing discrimination based on sexual orientation or gender identity.[20]

Utah Governor Gary Herbert appointed openly gay Brian Doughty in 2011 to replace Utah Representative Jackie Biskupski, D-Salt Lake, when she resigned from the Utah House of Representatives.[21]

Common Ground Initiative[edit]

In response to the adoption in 2008 of California's Proposition 8, Equality Utah leaders launched the group's Common Ground Initiative. The initiative included the introduction of five bills at the Utah Legislature to protect the equal rights of LGBT people in the state. The bills reflected the opinion of Church of Jesus Christ of Latter-day Saints leaders who had said that they did not object to the legislation. Human Rights Campaign leaders delivered 27,000 letters to church leaders in support of the legislation. Church leaders declined to comment on the matter.[22][23] The measures of the initiative failed, some in committee.[24]

In response to the LDS Church statements, Equality Utah leaders lobbied successfully for the adoption of similar bills in 12 counties and cities in the state including: Salt Lake County (population 1,029,655), Salt Lake City (population 186,440), West Valley City (population 129,480), Ogden (population 82,825), Taylorsville (population 57,439), Logan (population 49,534), Murray (population 46,746), Summit County (population 29,736), Midvale (population 27,029), Grand County (population 8,485), Park City (population 7,731) and Moab (population 4,779).[25]

University of Utah[edit]

University of Utah administrators adopted a policy in 1991 to prohibit employment discrimination including that based on sexual orientation[26] Administrators extended the policy in 1996 to prohibit discrimination in faculty duties, in 1997 to prohibit discrimination in student rights and responsibilities, and in 2009 to prohibit discrimination in student admissions.[27]

Salt Lake City[edit]

Utah gay activist David Nelson wrote and lobbied unsuccessfully in 1986 for the adoption of a Salt Lake City Council ordinance to create a city human rights commission and to prohibit discrimination, the first such proposal in Utah.[28][29][30][31]

Nelson lobbied successfully from 1986 to 1987 for the adoption of a Salt Lake City Police Department LGBT sensitivity training policy, the first such policy in Utah.[32]

Salt Lake City Council members adopted two bills in 2009 and 2010 which prohibit employment and housing discrimination (except by religious groups) based on sexual orientation or gender identity.[33] LDS Church leaders said before the adoption that they supported the bills and that they could be a model for the rest of the state.[34][35]

Salt Lake County[edit]

Utah gay activist David Nelson wrote and lobbied successfully in 1992 for the adoption of a Salt Lake County Commission ordinance to prohibit discrimination including that based on sexual orientation, the first such laws in Utah,[36][37][38][39][40][41][42] and lobbied successfully in 1995 against the repeal of the "marital status" and "sexual orientation" protections.[43][44][45] Leaders of the county Gay and Lesbian Employee Association were critical of Nelson and others who opposed the repeal, and said that he "did not speak for GLEA" "or for any of its members."[46]

Hate crime laws[edit]

LGBT flag map of Utah

The Utah House of Representatives Democratic Leader, Representative Frank R. Pignanelli, D-Salt Lake, sponsored the bills, H.B. 111 ("Hate Crimes Statistics Act") and H.B. 112 ("Hate Crimes Penalties -- Civil Rights Violation"), successfully in 1992. The laws require the state Department of Public Safety to collect and publish statistics about hate crimes which are committed in the state, and provide for an enhanced penalty for the commission of a hate crime. Utah gay activist David Nelson helped write the bills.[47][48][49][50] Attempts were made unsuccessfully from 1992 to 1999 for the adoption of an amendment of the laws.[51][52]

Bullying[edit]

Utah has enacted anti-bullying legislation several times since 2006, detailing prohibited behavior and increasing the reporting requirements for local school boards.[53][54][55] LGBT rights advocates have campaigned for faster and more sensitive responses from school officials and highlighted the problem of gay teen suicide.[56] A law passed in 2013 requires school administrators to notify parents if their child is bullied. The new requirement arose as a direct response to the suicide of gay 14-year-old David Phan, whose family had never known he was the object of bullying.[57] Some LGBT activists have objected that it might result in students may be outed to their families, which may not always be in the child's best interest. They have recommended that schools train teachers in the importance of family acceptance, establish guidelines for parental notification, and discuss what they will say with the student.[58]

Gender identity and expression[edit]

In order for transgender people in Utah to change their legal gender on their birth certificates, they must submit a certified court order changing their name and gender. Sex reassignment surgery is not required. Upon the receipt of the court order, "the amendment shall be registered with and become a part of the original certificate and a certified copy shall be issued to the applicant without additional cost".[59]

Utah Representative Carl Wimmer, R-Salt Lake, sponsored the bill, H.B. 225 ("Driver License Amendments"), unsuccessfully in 2009. The bill would have provided that "if a person requests to change the sex designation on a driver license or identification card, the Driver License Division shall issue a duplicate driver license or new identification card upon receiving: an application and fee for a duplicate driver license or identification card; and written verification from a licensed physician that the applicant has undergone and completed sex reassignment surgery."[60]

In 2011, Utah Driver License Division employees denied mistreatment of a transgender woman who was required to remove her makeup before she could be photographed for a new state identification card. A witness said that the employees appeared to be making fun of the transgender woman. The woman was invited to meet with the division director.[61][62]

Freedom of expression[edit]

Student clubs[edit]

Provo High School students created a gay–straight alliance in 2005. Provo is considered to be one of the most conservative cities in the country. In response, some residents asked the Provo School District Board of Education to shut down the group. However, the board members concluded it would violate federal law to do so, and instead created a new policy requiring parental signatures to join any school clubs.[63][64]

"No promo homo" laws[edit]

On October 21, 2016, Equality Utah filed a lawsuit with the U.S. District Court for the District of Utah against the Utah State Board of Education to strike down a law forbidding the "promotion of homosexuality" in schools.[65] On March 8, 2017, the Utah State Legislature passed SB196, which removed the phrase "the advocacy of homosexuality" from the law.[66][67] On March 20, 2017, Governor Gary Herbert signed SB196 into law. The law goes into effect on July 1, 2017.[68]

The repealed statute stated "[T]he materials adopted by a local school board . . . shall be based upon recommendations of the school district’s Curriculum Materials Review Committee that comply with state law and state board rules emphasizing abstinence before marriage and fidelity after marriage, and prohibiting instruction in the advocacy of homosexuality." Utah Code § 53A-13-101.[69]

As of March 2017, the US states of Alabama, Arizona, Louisiana, Mississippi, Oklahoma, South Carolina and Texas still have anti-LGBT curriculum laws in schools.

Public opinion[edit]

An opinion poll which was conducted in 2010 by Columbia University found that Utah ranks last among all states in support of same-sex marriage. With 22 percent of respondents who favored it, the rate of support had increased 10 percent since 1994-1996.[71]

An opinion poll which was conducted in 2011 by Public Policy Polling found 27 percent of Utah voters believed that same-sex marriage should be legal, while 66 percent believed it should be illegal and 7 percent were not sure. A separate question in the survey found that 60 percent of respondents supported legal recognition of same-sex couples, with 23 percent supporting same-sex marriage and 37 percent supporting civil unions, while 39 percent opposed all legal recognition and 1 percent were not sure.[72]

A Salt Lake Tribune poll taken by SurveyUSA from January 10–13, 2014 found that Utah residents were evenly split on whether same-sex couples in Utah should be allowed to get state-issued marriage licences — 48% for and 48% against. 4% were uncertain. Some 72% said same-sex couples should be allowed to form civil unions that provide the same legal rights as marriage.[73]

Other laws[edit]

The Purchase of Insurance Proceeds Law introduced by Representative Pete Suazo and passed in 1994 allows terminally ill Utahns, including those with HIV/AIDS, to sell their life insurance before they died to pay for end-of-life care and other needs.[74]

See also[edit]

References[edit]

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  2. ^ "Utah Code: Section 76-5-403". Utah Legislature: Code. Utah Legislature. 2007. Archived from the original on October 15, 2011. Retrieved September 7, 2011. 
  3. ^ "Utah gun rule removes sodomy restriction". QSaltLake. Salt Lake City: Salt Lick Publishing LLC. January 17, 2011. pp. OL. Retrieved August 27, 2011. 
  4. ^ Eskridge, William; Hunter, Nan (2004). Sexuality, gender, and the law. Foundation Press. p. 1090. 
  5. ^ Walsh, Rebecca (November 5, 2004). "Shurtleff confident he can defend Amendment 3". The Salt Lake Tribune. Salt Lake City: Kearns-Tribune Corp. Retrieved September 7, 2011. 
  6. ^ Romboy, Dennis (March 26, 2013). "Utah among several states with marriage laws under legal challenge". Deseret News. Retrieved December 5, 2013. 
  7. ^ "Judge hears arguments in case challenging Utah's gay marriage ban". Aljazeera America. December 4, 2013. Retrieved December 5, 2013. 
  8. ^ a b "Judge strikes down Utah’s same-sex marriage ban". Archived from the original on 2013-12-22. Retrieved 2014-06-29. 
  9. ^ Healy, Jack (January 6, 2014). "Justices' Halt to Gay Marriage Leaves Utah Couples in Limbo". New York Times. 
  10. ^ Harrie, Dan (February 24, 2000). "House approves bill banning adoption by gays, unmarried couples". The Salt Lake Tribune. Kearns-Tribune Corp. pp. A–8. Retrieved September 7, 2011. 
  11. ^ a b "Utah Code Section 78B-6-117(3)". Le.utah.gov. Archived from the original on October 19, 2014. Retrieved 2014-06-29. 
  12. ^ "Infographic: % of Same-sex Couples Raising Children in Top Metro Areas (MSAs)". The Williams Institute. The Williams Institute at the UCLA School of Law. July 26, 2013. Retrieved January 1, 2014. 
  13. ^ Price, Michelle L. (March 6, 2015). "Utah Senate gives speedy approval to LGBT-inclusive anti-discrimination bill". LGBTQ Nation. Associated Press. Retrieved March 12, 2015. 
  14. ^ "S.B. 296 Antidiscrimination and Religious Freedom Amendments". Utah State Legislature. Retrieved March 12, 2015. 
  15. ^ Masunaga, Samantha (March 6, 2015). "LGBT anti-discrimination bill passes Utah state Senate". Los Angeles Times. Retrieved March 12, 2015. 
  16. ^ Price, Michelle L. (March 11, 2015). "Utah House passes Mormon church-backed LGBT anti-discrimination bill". LGBTQ Nation. Associated Press. Retrieved March 12, 2015. 
  17. ^ Goodstein, Laurie (March 11, 2015). "Utah Passes Antidiscrimination Bill Backed by Mormon Leaders". The New York Times. Retrieved March 12, 2015. 
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  22. ^ Winters, Rosemary (December 23, 2008). "27,000 letters urge LDS leader to back rights of gay Utahns". The Salt Lake Tribune. Salt Lake City: Kearns-Tribune LLC. 
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  44. ^ Adams, Brooke (July 18, 1995). "S.L. County may leave half of discrimination law as is". Deseret New. Salt Lake City: Deseret News Publishing Co. pp. B–1. Retrieved September 5, 2011. 
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  46. ^ Swensen, Sherrie (July 19, 1995). Minute Book. Board of County Commissioners. 1995. Salt Lake City: Salt Lake County, Utah. pp. 1178–1180. 
  47. ^ Jorgensen, Chris (December 5, 1992). "Gays say new law still falls short". The Salt Lake Tribune. Salt Lake City: Kearns-Tribune Corp. 
  48. ^ Parker, Douglas (January 22, 1991). "Democratic leader wants state to keep track of hate crimes". Salt Lake Tribune. Kearns-Tribune Corp. pp. A–4. Retrieved September 5, 2011. 
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  51. ^ Bernick Jr., Bob (May 22, 1994). "Pignanelli hopes to replace never-used hate-crimes law". Deseret News. Salt Lake City: Deseret News Publishing Co. pp. A–1. Retrieved September 5, 2011. 
  52. ^ Harrie, Dan (May 10, 2001). "Texas action gives pause to Utah hate crimes effort". The Salt Lake Tribune. Salt Lake City: Kearns-Tribune LLC. pp. A–1. Retrieved September 5, 2011. 
  53. ^ "Schools must address bullying or lose federal money". Deseret News. Salt Lake City: Deseret News Publishing Co. July 28, 2006. Retrieved September 7, 2011. 
  54. ^ "H.B. 325 Substitute: Bullying and hazing -- Moss, C.". Utah Legislature: Bills 2008. Utah Legislature. April 8, 2008. Retrieved September 7, 2011. 
  55. ^ "S.B. 304: Preventing bullying and hazing in elementary and secondary schools -- Okerlund, R.". Utah Legislature: Bills 2011. Utah Legislature. March 23, 2011. Retrieved September 7, 2011. 
  56. ^ Henetz, Patty (April 30, 2012). "Teen’s suicide spurs community to face gay bullying in northern Utah". Salt Lake Tribune. Retrieved January 26, 2014. 
  57. ^ Schencker, Lisa (February 21, 2013). "Parents tell powerful stories as Utah lawmakers consider teen bullying, suicide bills". Salt Lake Tribune. Retrieved January 26, 2014. 
  58. ^ Whitehurst, Lindsay (October 28, 2013). "Utah advocates say anti-bullying law could 'out' LGBT kids". Salt Lake Tribune. Retrieved January 26, 2014. 
  59. ^ Utah National Center for Transgender Equality
  60. ^ "H.B. 225: Driver license amendments -- Wimmer, C.". Utah Legislature: Bills 2009. Utah Legislature. March 13, 2009. Retrieved September 8, 2011. 
  61. ^ Winters, Rosemary (March 30, 2011). "Driver license incident sparks cry for transgender education". The Salt Lake Tribune. Salt Lake City: Kearns-Tribune LLC. Retrieved September 8, 2011. 
  62. ^ Winters, Rosemary (March 31, 2011). "Transgender woman meets with driver license director". The Salt Lake Tribune. Salt Lake City: Kearns-Tribune LLC. Retrieved September 8, 2011. 
  63. ^ McFarland, Sheena (October 12, 2005). "Provo schools could allow gay-straight clubs". The Salt Lake Tribune. Salt Lake City: Kearns-Tribune LLC. Retrieved September 8, 2011. 
  64. ^ Winters, Rosemary (December 20, 2010). "Gay student clubs blossoming in Utah". The Salt Lake Tribune. Salt Lake City: Kearns-Tribune LLC. Retrieved September 8, 2011. 
  65. ^ Case: Equality Utah v. Utah State Board of Education
  66. ^ Utah Legislature strikes so-called 'no-promo homo' law
  67. ^ S.B. 196
  68. ^ Winslow, Ben (20 March 2017). "Utah governor repeals law forbidding ‘promotion’ of homosexuality in schools". FOX 13. Salt Lake City. 
  69. ^ #DontEraseUs: State Anti-LGBT Curriculum Laws
  70. ^ "New Poll Misrepresents Attitudes On Gay Marriage In Utah". ThinkProgress. July 10, 2012. Retrieved December 5, 2013. 
  71. ^ Gelman, Andrew; Jeffrey Lax; Justin Phillips (August 21, 2010). "Over time, a gay marriage groundswell". The New York Times. New York: The New York Times Co. Retrieved January 11, 2011. 
  72. ^ Jensen, Tom (July 21, 2011). "Utah opposes same-sex marriage, but not all recognition" (PDF). News Release. Public Policy Polling. Retrieved July 21, 2011. 
  73. ^ Adams, Brooke (January 14, 2014). "Utah divided on same-sex marriage". Salt Lake Trinbune. Retrieved January 14, 2014. 
  74. ^ Harrie, Dan (March 14, 1994). "Leavitt faces decision on veto of viaticals". The Salt Lake Tribune. Kearns-Tribune Corp. Retrieved June 14, 2011. 

External links[edit]