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LGBT rights in Arkansas

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LGBT rights inArkansas
StatusLegal since 2002
(Picado v. Jegley)
Legislative repeal in 2005
Gender identitySex change recognized
MilitarySexual orientation allowed since 2011
(Don't Ask, Don't Tell Repeal Act of 2010), gender identity allowed since 2021
Discrimination protectionsSexual orientation and gender identity covered in employment anti-discrimination laws statewide since 2020
(Bostock v. Clayton County)
Family rights
Recognition of relationshipsSame-sex marriage since 2015
(Obergefell v. Hodges)
AdoptionLegal since 2011
(Arkansas Department of Human Services v. Cole)

Lesbian, gay, bisexual, and transgender (LGBT) people in theU.S.state of Arkansas face legal challenges not experienced by non-LGBTresidents. Same-sex sexual activity is legal inArkansas.Same-sex marriagebecame briefly legal through a court ruling on May 9, 2014,[1]subject to courtstaysandappeals.In June 2015, theU.S. Supreme Courtruled inObergefell v. Hodgesthat laws banning same-sex marriage are unconstitutional, legalizing same-sex marriage in the United States nationwide including in Arkansas. Nonetheless, discrimination on the basis ofsexual orientationandgender identitywas not banned in Arkansas until the Supreme Court banned it nationwide inBostock v. Clayton Countyin 2020.

Law regarding same-sex sexual activity[edit]

In 1838, Arkansas instituted the first statute against homosexual activity with a provision which read: "Every person convicted of sodomy or buggery will be imprisoned in the state penitentiary for not less than five years nor more than 21 years." In 1864, theArkansas General Assemblyraised the penalty todeath,though this was repealed 9 years later, and the initial penalty was re-established. The first reported sodomy case occurred in 1921 inSmith v. State,where the defendant was found guilty of "disregarding the laws of nature". In 1925, theArkansas Supreme Courtunanimously held thatfellatio(oral sex), whether heterosexual or homosexual, violated the sodomy statute. The legislation was subsequently amended in 1955 to lower the minimum penalty to one-year imprisonment, and in 1977 to penalize only homosexual acts, or sexual acts occurring between humans and animals; but in effect decriminalized sodomy by making it a Class A misdemeanor.[2]

In 1992, GovernorBill Clinton,during hispresidential campaign,publicly called for the sodomy law to be repealed. The statement was published on the front page of theWashington Blade's 22 May 1992 issue.[2]

In 2002, the Arkansas Supreme Court inPicado v. Jegleyfound that the state statute that made sexual relations between people of the same gender a criminal act was unconstitutional because the law violated a fundamental right to privacy and failed to provide the equal protection of the laws.[3][4]Previously, the courts had rejected multiple legal challenges to the statute:Connor v. State(1973) where the state Supreme Court rejected arguments that religious prejudice in the law's enactment made it unconstitutional,Carter et al. v. State(1973) where the same court held that the General Assembly could, "within constitutional limits", outlaw anything that was "hurtful to the comfort, safety and welfare of the people and prescribe regulations to promote the public health, morals and safety" and rejected privacy as a fundamental right, andUnited States v. Lemmons(1983) in which a federal court rejected privacy arguments based on the fact that the act in question had occurred in a public restroom.[2]

On April 4, 2005, theArkansas House of Representativespassed, by a vote of 85–0 in favor,SB 984,a bill repealing laws against sexual acts among same-sex couples. On April 7, 2005, theArkansas State Senatepassed the bill, by a vote of 35–0 in favor. GovernorMike Huckabeesigned the bill into law, and it went into effect on April 12, 2005.[5]

Recognition of same-sex relationships[edit]

Arkansas bans same-sex marriage in both state statute and its stateConstitution.These provisions have been ruled unconstitutional and are no longer enforced.[1]

On May 9, 2014, Sixth Judicial Circuit JudgeChris Piazzaissued a preliminary ruling inWright v. Arkansasthat found the state's ban on same-sex marriage unconstitutional. On May 15, he issued a final ruling that enjoined enforcement of the state's statutes prohibiting the licensing and recognition of same-sex marriages as well. The Arkansas Supreme Court stayed his ruling while it heard the appeal in the case.[6]

In another lawsuit in federal court,Jernigan v. Crane,on November 25, 2014, JudgeKristine Bakerfound the state's ban on same-sex marriage unconstitutional and stayed her ruling pending appeal.[7]

On June 26, 2015, the U.S. Supreme Court ruled inObergefell v. Hodgesthat bans on same-sex marriage are unconstitutional, effectively legalizing same-sex marriage in the United States. Since then, same-sex couples in Arkansas have been allowed to legally wed.[8]

Adoption and parenting[edit]

Arkansas voters approved aballot measurein November 2008, effective from January 1, 2009, to prohibit by statute cohabiting couples who are not in a recognized marriage from adopting and providing foster care.[9]On April 7, 2011, inArkansas Department of Human Services v. Cole,the Arkansas Supreme Court unanimously found that the measure "fails to pass constitutional muster" because it "directly and substantially burdens the privacy rights of 'opposite-sex and same-sex individuals' who engage in private, consensual sexual conduct in the bedroom by foreclosing their eligibility to foster or adopt children, should they choose to cohabit with their sexual partner."[10]

Lesbian couples have access toin vitro fertilizationand other assisted reproduction services. PerPavan v. Smith,Arkansas 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.[11]In addition, no statute or case law prohibitssurrogacy,traditional or gestational. As a result, both are practiced in the state, including by same-sex couples.[12]

Birth certificates[edit]

In December 2015, a circuit judge found Arkansas' birth certificate law unconstitutional because it unfairly discriminated against same-sex couples. The law allowed the heterosexual non-biological father to be listed on his child(ren)'s birth certificates but refused that right for the homosexual non-biological mother. The state appealed the ruling to the Arkansas Supreme Court. In December 2016, the state's Supreme Court ruled that the birth certificate law was constitutional. Supreme Court Judge Jo Hart wrote: "It does not violate equal protection to acknowledge basic biological truths".[13]On June 26, 2017, the U.S. Supreme Court ruled in an unsigned opinion, inPavan v. Smith,that the Arkansas Supreme Court's ruling was in clear violation ofObergefell v. Hodgesand struck down the state's birth certificate law.[14]In October, the state Supreme Court acknowledged that the state law was unconstitutional and ordered that married same-sex couples be treated equally in the issuance of birth certificates.[15][16]

Discrimination protections[edit]

Map of Arkansas counties and cities that have sexual orientation anti–employment discrimination ordinances beforeBostock v. Clayton Countybanned discrimination nationwide in 2020
Sexual orientation and gender identity with anti–employment discrimination ordinance
Sexual orientation and gender identity solely in public employment
Sexual orientation in public employment
Does not protect sexual orientation and gender identity in employment

Arkansas law does not address discrimination based on gender identity or sexual orientation.[17]

The capital city ofLittle Rockand several other cities, includingConway,Hot SpringsandNorth Little Rockas well asPulaski County,prohibit discrimination on the basis of sexual orientation and gender identity in public employment (city or county employees).[18]The cities ofMarvellandSpringdalehave similar policies but only ban sexual orientation-based discrimination.[19]

Two cities have enacted comprehensive anti-discrimination ordinances addressing both public and private employment discrimination on account of sexual orientation and gender identity. These areEureka SpringsandFayetteville.[20]However, both these ordinances are unenforced due to the passage of theIntrastate Commerce Improvement Act.In February 2017, the Arkansas Supreme Court struck down Fayetteville's anti-discrimination ordinance because it included sexual orientation and gender identity as protected categories. The court found that the ordinance contravened the act.[21]Following the ruling, Fayetteville City Attorney Kit Williams said he would focus on challenging the constitutionality of the act.

Intrastate Commerce Improvement Act[edit]

On February 9, 2015, the Arkansas State Senate passed, with 24 voting in favor, 8 voting against, and 2 not voting, theIntrastate Commerce Improvement Act,legislation that prohibits counties, municipalities or other political subdivisions in the state from adopting anti-discrimination ordinances that creates a protected classification or prohibits discrimination on a basis not contained in state law. On February 13, 2015, the Arkansas House of Representatives passed, with a 58 in favor, 21 voting against, 14 not voting, and 7 voting present. An emergency clause to the bill was rejected by the House.[22]

Hate crime law[edit]

Arkansas has nohate crimestatute that attaches penalties to criminal convictions when motivated by bias,[23]but a state statute does allow victims to sue for damages or seek court-ordered relief for acts of intimidation, harassment, violence, or property damage "where such acts are motivated by racial, religious, or ethnic animosity", not sexual orientation or gender identity.[24]However, sexual orientation and gender identity are covered under U.S. federal law since theMatthew Shepard and James Byrd, Jr. Hate Crimes Prevention Actwas signed into law in October 2009.

Watered-down version hate crime laws[edit]

In April 2021, theArkansas Legislatureoverwhelmingly passed a "watered-down weak version" of a hate crimes bill - that does not include both "sexual orientation or gender identity" explicitly or implicitly. TheGovernor of Arkansassigned the bill into law effective immediately.[25]Only Wyoming and South Carolina as hold outs are yet to introduce or implement hate crime laws across the United States.[26][27][28]

Healthcare denial bill[edit]

In early 2021, a bill (SB 289) to allowmedical practitionersto cite their religious beliefs to deny healthcare to LGBT patients passed theArkansas House of Representativesand theArkansas Senate.[29][30][31]Both Mississippi and Illinois have similar laws.[32]On March 26,GovernorAsa Hutchinsonsigned the bill into law effective immediately.[33]

Gender identity and expression[edit]

Since 1981, Arkansas law permits transgender people to amend their birth certificates upon receipt of a court order verifying that they have undergonesex reassignment surgeryand that their names have been changed.[34][35][36][37]

Besides male and female, Arkansas identity documents are available with an"X"sex descriptor. The Arkansas Department of Finance and Administration has issued such documentation since December 2010.[38]In March 2024, the DFA rescinded its support of X descriptors for driver's licences.[39]

Trans people in sports[edit]

In March 2021, theArkansas Legislaturepassed a bill to legally ban transgender individuals from sports and athletics. Idaho and Mississippi already had similar laws, Idaho's having passed in 2020 and Mississippi's having passed earlier in March 2021.[40][41]On March 25, the bill was signed into law by theGovernor of Arkansasand became effective immediately.[42][43]

Transgender healthcare[edit]

In March 2021, theArkansas LegislaturepassedHB 1570,a bill to legally banpuberty blockers,hormone therapyand/orsex reassignment surgeryon individuals under the age of 18.[44](Sex reassignment surgery is not performed on minors in Arkansas.[45]) Governor Asa Hutchinson vetoed the bill on April 5, calling it "overbroad" and "extreme",[46]but the Legislature overrode his veto the next day.[47]TheACLUsued the state, and a federal judge blocked enforcement of the law so that the lawsuit could proceed.[48][49]and a federal judge issued an injunction preventing the law from taking effect, saying the law would cause "irreparable harm" to minors if allowed to go into effect.[50]

In support of the ban, Arkansas state representativeMary BentleyquotedDeuteronomy 22:5,and Rep. Jim Wooten said transgender children were equivalent to a child who "comes to you and says, 'I wanna be a cow.'"[51]Other critics called the treatment "genital mutilation" and "experimentation".[52]

On June 20, 2023, federal judgeJames M. Moody Jr.,who had previously blocked the law from taking effect, issued a ruling striking down the law. In his ruling he argued that the law discriminated against transgender people and violated the constitutional rights of doctors, and that the state did not adequately prove its claim regarding the supposed experimental nature of transition care.[53]

The state's attorney general,Tim Griffin,and Governor Sanders vowed to appeal the decision.[53]

Gender-affirming litigation bill[edit]

In March 2023, theArkansas Legislaturepassed a bill to allow individuals to sue doctors, nurses or other health employees for gender-affirming healthcare provided to them as minors. After turning 18, the person has 15 years to sue—whereas lawsuits for other types of care generally must be filed within two years. On March 13, 2023,GovernorSarah Huckabee Sanderssigned it into law. It will take effect in the summer.[54][55][needs update]

Bathroom ban with sex offender registration penalties[edit]

On April 11, 2023, abathroom billbecame Act 619.[56]The previous February, the Arkansas state legislature had put it forth as SB270, to amend the definition of "sexual indecency with a child" to include any trans person using a public bathroom, locker room, changing room, or other public changing facility matching their gender identity while a minor is also inside.[57]Subsequently, it was narrowed. In the final version, the misdemeanor depends on the intent of "arousing or gratifying a sexual desire".[58]

On March 21, 2023, Governor Sarah Huckabee Sanders signed a different law prohibiting trans people from using public school bathrooms that match their gender. The law will take effect in the summer of 2023. This made Arkansas the fourth state to pass a law about public school bathrooms, following Alabama, Oklahoma and Tennessee, while Idaho and Iowa's approved bills had yet to be signed by their governors.[59]

Public opinion[edit]

A 2017Public Religion Research Institute(PRRI) poll found that 52% of Arkansas residents supported same-sex marriage, while 38% opposed it and 10% were unsure.[60]The same poll found that 64% of Arkansans supported an anti-discrimination law covering sexual orientation and gender identity, while 27% were opposed.[61]Furthermore, 53% were against allowing public businesses to refuse to serve LGBT people due to religious beliefs, while 41% supported allowing such religiously-based refusals.[62]

A 2022Public Religion Research Institute(PRRI) poll found that 51% of Arkansas residents supported same-sex marriage, while 47% opposed it and 1% were unsure. The same poll found that 74% of Arkansans supported an anti-discrimination law covering sexual orientation and gender identity, while 24% were opposed. 2% were undecided. Furthermore, 55% were against allowing public businesses to refuse to serve LGBT people due to religious beliefs, while 43% supported allowing such religiously-based refusals. 1% were undecided.

Public opinion for LGBT anti-discrimination laws in Arkansas
Poll source Date(s)
administered
Sample
size
Margin of
error
% support % opposition % no opinion
Public Religion Research Institute January 3-December 30, 2018 547 ? 56% 33% 11%
Public Religion Research Institute April 5-December 23, 2017 641 ? 64% 27% 9%
Public Religion Research Institute April 29, 2015-January 7, 2016 782 ? 57% 38% 5%

Summary table[edit]

Same-sex sexual activity legal Yes(Since 2002, codified in 2005)
Equal age of consent (16) Yes(Since 2002)
Anti-discrimination laws in employment Yes(Since 2020)
Anti-discrimination laws in the provision of goods and services No(Prohibited by theIntrastate Commerce Improvement Actsince 2015)
Anti Discrimination laws in housing No(Prohibited by theIntrastate Commerce Improvement Actsince 2015)
Anti Discrimination laws in public accommodations No(Prohibited by theIntrastate Commerce Improvement Actsince 2015)
Anti-discrimination laws in all other areas No(Prohibited by theIntrastate Commerce Improvement Actsince 2015)
LGBT anti-bullying law in schools and colleges Yes
Hate crime laws inclusive of sexual orientation and gender identity No
Transgender persons in prisons, jails, juvenile detentions, etc. required to be housed according to their gender identity and coverage of transition healthcare No
Gender confirmation surgery, puberty blockers, hormone replacement therapy and other transition-related healthcare for transgender people required to be covered under health insurance and state Medicaid policies No(Explicitly banned)
Transgender people allowed to use restrooms and other gender-segregated spaces that correspond with their gender identity No(Since 2023)[63]
Transgender athletes allowed to participate in the sport of their gender identity (highly controversial) Yes/No(AMABtransgender individuals in specific are explicitly banned)[64]
Gender-neutral bathrooms No
Same-sex marriages Yes(Since 2015)
Stepchild adoption by same-sex couples Yes(Since 2011)
Joint adoption by same-sex couples Yes(Since 2011)
Gays, lesbians and bisexuals allowed to serve openly in the military Yes(Since 2011)
Transgender people allowed to serve openly in the military Yes(Since 2021)[65]
Transvestites allowed to serve openly in the military No[66]
Intersex people allowed to serve openly in the military X(Current DoD policy bans "Hermaphrodites" from serving or enlisting in the military)[66]
Right to change legal gender Yes(Requiressex reassignment surgery)
Third genderoption X(Since 2024)[67][68][69]
LGBT education X
Access to IVF for lesbians Yes
Conversion therapybanned for minors No
Intersex minors protected from invasive surgical procedures No
Gay panic defensebanned No
Commercial surrogacy for gay male couples Yes
Homosexuality declassified as a mental illness Yes(Since 1973)
Transgender identity declassified as a mental illness No(Reclassified as "gender dysphoria"under DSM-5 since 2013, and diagnosis ofgender dysphoriais usually required in order to access transition care)[70]
Intersex sex characteristics declassified as a physical deformity
Men who have sex with menallowed to donate blood Yes/No(Since 2020; 3-month deferral period)[71]

References[edit]

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  2. ^abc"The History of Sodomy Laws in the United States - Arkansas".www.glapn.org.
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  4. ^American Psychological Association:"Jegley v. Picado 80 S.W.3d 332",accessed April 7, 2011
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  61. ^Public opinion on LGBT nondiscrimination laws by state: Arkansas,PRRI – American Values Atlas
  62. ^Public opinion on religiously based refusals to serve gay and lesbian people by state: Arkansas,PRRI – American Values Atlas
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