LGBT rights in Arkansas
Map of USA AR.svg
StatusLegal since 2002
(Picado v. Jegley)
Gender identitySex change recognized
MilitarySexual orientation allowed since 2011
(Don't Ask, Don't Tell Repeal Act of 2010), while gender identity status is ambiguous since 2019
(Directive-type Memorandum-19-004)
Discrimination protectionsSexual orientation and gender identity covered in employment anti-discrimination laws statewide since 2020
(Bostock v. Clayton County, Georgia)
Family rights
Recognition of relationshipsLegal since 2015
(Obergefell v. Hodges)
AdoptionLegal since 2017
(Pavan v. Smith)

Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of Arkansas may face some legal challenges not experienced by non-LGBT residents. Same-sex sexual activity is legal in Arkansas. Same-sex marriage became briefly legal through a court ruling on May 9, 2014,[1] subject to court stays and appeals. In June 2015, the U.S. Supreme Court ruled in Obergefell v. Hodges that laws banning same-sex marriage are unconstitutional, legalizing same-sex marriage in the United States nationwide including in Arkansas. Nonetheless, discrimination on the basis of sexual orientation and gender identity was not banned in Arkansas until the Supreme Court banned it nationwide in Bostock v. Clayton County, Georgia in 2020.

Law regarding same-sex sexual activity

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 In 1864, the Arkansas General Assembly raised the penalty to death, though this was repealed 9 years later, and the initial penalty was re-established. The first reported sodomy case occurred in 1921 in Smith v. State, where the defendant was found guilty of "disregarding the laws of nature". In 1925, the Arkansas Supreme Court unanimously held that fellatio (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In 1992, Governor Bill Clinton, during his presidential campaign, publicly called for the sodomy law to be repealed. The statement was published on the front page of the Washington Blade's 22 May 1992 issue.[2]

In 2002, the Arkansas Supreme Court in Picado v. Jegley found 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, and United 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, the Arkansas House of Representatives passed, 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, the Arkansas State Senate passed the bill, by a vote of 35–0 in favor. Governor Mike Huckabee signed the bill into law, and it went into effect on April 12, 2005.[5]

Recognition of same-sex relationships

Main article: Same-sex marriage in Arkansas

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

On May 9, 2014, Sixth Judicial Circuit Judge Chris Piazza issued a preliminary ruling in Wright v. Arkansas that 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, Judge Kristine Baker found 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 in Obergefell v. Hodges that 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

Arkansas voters approved a ballot measure in 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, in Arkansas 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 to in vitro fertilization and other assisted reproduction services. Per Pavan 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 prohibits surrogacy, traditional or gestational. As a result, both are practiced in the state, including by same-sex couples.[12]

Birth certificates

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, in Pavan v. Smith, that the Arkansas Supreme Court's ruling was in clear violation of Obergefell v. Hodges and 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

Map of Arkansas counties and cities that have sexual orientation anti–employment discrimination ordinances before Bostock v. Clayton County banned discrimination nationwide in 2020 .mw-parser-output .legend{page-break-inside:avoid;break-inside:avoid-column}.mw-parser-output .legend-color{display:inline-block;min-width:1.25em;height:1.25em;line-height:1.25;margin:1px 0;text-align:center;border:1px solid black;background-color:transparent;color:black}.mw-parser-output .legend-text{}  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
Map of Arkansas counties and cities that have sexual orientation anti–employment discrimination ordinances before Bostock v. Clayton County banned 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 of Little Rock and several other cities, including Conway, Hot Springs and North Little Rock as well as Pulaski County, prohibit discrimination on the basis of sexual orientation and gender identity in public employment (city or county employees).[18] The cities of Marvell and Springdale have 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 are Eureka Springs and Fayetteville.[20] However, both these ordinances are unenforced due to the passage of the Intrastate 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

Main article: Intrastate Commerce Improvement Act

On February 9, 2015, the Arkansas State Senate passed, with 24 voting in favor, 8 voting against, and 2 not voting, the Intrastate 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

Arkansas has no hate crime statute 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 the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act was signed into law in October 2009.

Watered-down version hate crime laws

In April 2021, the Arkansas Legislature overwhelmingly passed a "watered-down weak version" of a hate crimes bill - that does not include both "sexual orientation or gender identity" explicitly or implicitly. The Governor of Arkansas signed 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

In early 2021, a bill (SB 289) to allow medical practitioners to cite their religious beliefs to deny healthcare to LGBT patients passed the Arkansas House of Representatives and the Arkansas Senate.[29][30][31] Both Mississippi and Illinois have similar laws.[32] On March 26, Governor Asa Hutchinson signed the bill into law effective immediately.[33]

Gender identity and expression

Since 1981, Arkansas law permits transgender people to amend their birth certificates upon receipt of a court order verifying that they have undergone sex reassignment surgery and 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 2021, the Arkansas Legislature passed 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.[39][40] On March 25, the bill was signed into law by the Governor of Arkansas and became effective immediately.[41][42]

In March 2021, the Arkansas Legislature passed HB 1570, a bill to legally ban puberty blockers, hormone therapy and/or sex reassignment surgery on individuals under the age of 18.[43] Governor Asa Hutchinson vetoed the bill on April 5, calling it "overbroad" and "extreme,"[44] but the Legislature overrode his veto the next day.[45] The ACLU sued, and a federal judge blocked enforcement of the law so that the lawsuit could proceed.[46]

Public opinion

A 2017 Public Religion Research Institute (PRRI) poll found that 52% of Arkansas residents supported same-sex marriage, while 38% opposed it and 10% were unsure.[47] The same poll found that 64% of Arkansans supported an anti-discrimination law covering sexual orientation and gender identity, while 27% were opposed.[48] 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.[49]

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

Same-sex sexual activity legal Yes (Since 2002)
Equal age of consent
Yes
(Since 2002)
Anti-discrimination laws in employment Yes (Since 2020)
Anti-discrimination laws in the provision of goods and services No (Prohibited by the Intrastate Commerce Improvement Act since 2015)
Anti Discrimination laws in housing No (Prohibited by the Intrastate Commerce Improvement Act since 2015)
Anti Discrimination laws in public accommidations No (Prohibited by the Intrastate Commerce Improvement Act since 2015)
Anti-discrimination laws in all other areas
No
(Prohibited by the Intrastate Commerce Improvement Act since 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
Emblem-question.svg
Transgender athletes allowed to participate in the sport of their gender identity (highly controversial) Yes/
No
(Must change gender on birth certificate)
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)[50]
Transvestites allowed to serve openly in the military
No
[51]
Intersex people allowed to serve openly in the military
X
(Current DoD policy bans "Hermaphrodites" from serving or enlisting in the military)[51]
Right to change legal gender
Yes
(Requires sex reassignment surgery)
Third gender option
X
/
Yes
(Since 2010 on Drivers Licenses only)
LGBT education
X
Access to IVF for lesbians
Yes
Conversion therapy banned for minors
No
Intersex minors protected from invasive surgical procedures
No
Gay panic defense banned
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 of gender dysphoria is usually required in order to access transition care)[52]
Intersex sex characteristics declassified as a physical deformity
Emblem-question.svg
Men who have sex with men allowed to donate blood
Yes
/
No
(Since 2020; 3-month deferral period)[53]

References

  1. ^ a b "Arkansas judge strikes down state ban on same-sex marriage". Reuters. May 9, 2014. Retrieved May 9, 2014.
  2. ^ a b c "The History of Sodomy Laws in the United States - Arkansas". www.glapn.org.
  3. ^ "Arkansas Sodomy Law". Hrc.org. Retrieved November 2, 2013.
  4. ^ American Psychological Association: "Jegley v. Picado 80 S.W.3d 332", accessed April 7, 2011
  5. ^ "Bill Information". www.arkleg.state.ar.us.
  6. ^ "Gay marriage on hold in Arkansas following new ruling". Time. May 16, 2014. Retrieved May 17, 2014.
  7. ^ Snow, Justin (November 25, 2014). "Federal judge strikes down Arkansas same-sex marriage ban". Metro Weekly. Retrieved November 25, 2014.
  8. ^ "US Supreme Court rules gay marriage is legal nationwide". BBC News. June 26, 2015.
  9. ^ National Conference of State Legislatures: "Same-Sex Marriage on the 2008 Ballot," November 6, 2008, accessed April 16, 2011
  10. ^ Metroweekly: Chris Geidner, "Arkansas High Court Strikes Down State's 2008 Adoption Ban," April 7, 2011 Archived April 11, 2011, at the Wayback Machine, accessed April 7, 2011
  11. ^ "Arkansas' equality profile". Movement Advancement Project.
  12. ^ "Is surrogacy legal in Arkansas". Surrogate.com.
  13. ^ Arkansas Supreme Court blocks birth certificates for same-sex couples Reuters
  14. ^ Supreme Court upholds same-sex parents' birth certificate rights
  15. ^ "Arkansas Supreme Court orders gender neutral treatment of parents on birth certificates". Arkansas Times. October 19, 2017.
  16. ^ "Arkansas high court: State must change birth certificate law". WREG.com. October 20, 2017.
  17. ^ "Arkansas Non-Discrimination Law". Hrc.org. March 9, 2007. Retrieved November 2, 2013.
  18. ^ "Municipal Equality Index" (PDF). Human Rights Campaign. Retrieved November 21, 2013.
  19. ^ Campaign, Human Rights. "MEI 2018: See Your City's Score". Human Rights Campaign.
  20. ^ "Eureka Springs quickly passes anti-prejudice law". Arkansas Online. February 10, 2015.
  21. ^ Hersher, Rebecca (February 23, 2017). "Arkansas Supreme Court Strikes Down Local Anti-Discrimination Law". NPR.org.
  22. ^ "Bill Information". www.arkleg.state.ar.us.
  23. ^ "Arkansas Hate Crimes Law". State Laws & Legislation. Human Rights Campaign. Retrieved January 26, 2013.
  24. ^ "Hate Crime Laws". Partnersagainsthate.org. Retrieved January 26, 2013.
  25. ^ "Gov. Hutchinson signs alternative hate crimes bill". April 14, 2021.
  26. ^ "Halfhearted hate crime bill substitute headed for governor's signature". April 12, 2021.
  27. ^ "Alternative to hate crimes bill heads to Gov. Hutchinson's desk". April 12, 2021.
  28. ^ "Arkansas, South Carolina and Wyoming race to not be last state in U.S. To pass a hate crime law". Newsweek. March 24, 2021.
  29. ^ "Arkansas Senate passes discriminatory LGBTQ+ healthcare bill". February 15, 2021.
  30. ^ "Arkansas Senate approves healthcare religious objections bill". KATV. Associated Press. February 11, 2021. Retrieved March 20, 2021.
  31. ^ "SB289 Bill Information - Arkansas State Legislature". www.arkleg.state.ar.us. Retrieved March 20, 2021.
  32. ^ "Arkansas legislature passes bill to allow EMTs & doctors to refuse to treat LGBTQ people / LGBTQ Nation".
  33. ^ "Arkansas governor signs bill allowing medical workers to refuse treatment to LGBTQ people | PBS NewsHour". PBS. March 26, 2021.
  34. ^ "Arkansas lawmakers voted unanimously to recognize trans folks in state law in 1981 / LGBTQ Nation".
  35. ^ "Arkansas Birth Certificate Law: Gender Identity Issues". Hrc.org. March 10, 2007. Retrieved November 2, 2013.
  36. ^ Gerdes, Stefanie (March 27, 2017). "Arkansas could make it 'illegal to be transgender' this week". Gay Star News. Retrieved January 29, 2018.
  37. ^ Zekis, Andrea (May 16, 2017). "Advocates in Arkansas fought back several anti-trans bills - and why that matters". Medium. Retrieved January 29, 2018.
  38. ^ Arkansas Has Been Offering A Nonbinary Gender Option On State IDs For Years, HuffPost, 17 October 2018
  39. ^ Boone, Rebecca (March 3, 2021). "Idaho transgender athlete ban is template for other states". AP NEWS. Retrieved April 7, 2021.
  40. ^ Associated Press (March 22, 2021). "Arkansas lawmakers send transgender sports ban bill to governor's desk". 5newsonline.com. Retrieved April 7, 2021.
  41. ^ "Arkansas becomes second state to sign transgender sports ban into law". March 25, 2021.
  42. ^ "Hutchinson signs gender bill". March 26, 2021.
  43. ^ "Arkansas becomes the first state to ban gender-affirming healthcare for trans youth / LGBTQ Nation".
  44. ^ Bryan, Max (April 5, 2021). "Arkansas Gov. Hutchinson vetoes bill banning youth gender reassignment surgeries, calling it 'overbroad, extreme'". USA TODAY. Retrieved April 5, 2021.
  45. ^ DeMillo, Andrew (April 6, 2021). "Arkansas lawmakers enact transgender youth treatment ban". AP News. Archived from the original on April 6, 2021. Retrieved April 6, 2021.
  46. ^ "Federal Judge Blocks Arkansas Law Banning Treatment Of Trans Youths". HuffPost. July 21, 2021. Retrieved May 10, 2022.
  47. ^ Public opinion on same-sex marriage by state: Arkansas, PRRI – American Values Atlas
  48. ^ Public opinion on LGBT nondiscrimination laws by state: Arkansas, PRRI – American Values Atlas
  49. ^ Public opinion on religiously based refusals to serve gay and lesbian people by state: Arkansas, PRRI – American Values Atlas
  50. ^ "Biden reverses Trump ban on transgender people in military". Associated Press. April 20, 2021.
  51. ^ a b "Medical Conditions That Can Keep You from Joining the Military". May 10, 2021.
  52. ^ "What Is Gender Dysphoria?". American Psychiatric Association. Retrieved December 31, 2020.
  53. ^ McNamara, Audrey (April 2, 2020). "FDA eases blood donation requirements for gay men amid "urgent" shortage". CBS News.