LGBT rights in Nebraska
StatusLegal since 1978
Gender identityTransgender people allowed to change legal gender following surgery
Discrimination protectionsProtections for sexual orientation and gender identity in employment and housing
Family rights
Recognition of relationshipsSame-sex marriage since 2015
AdoptionSame-sex couples allowed to adopt

Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of Nebraska may face some legal challenges not experienced by non-LGBT residents. Same-sex sexual activity is legal in Nebraska, and same-sex marriage has been recognized since June 2015 as a result of Obergefell v. Hodges. The state prohibits discrimination on account of sexual orientation and gender identity in employment and housing following the U.S. Supreme Court's ruling in Bostock v. Clayton County and a subsequent decision of the Nebraska Equal Opportunity Commission. In addition, the state's largest city, Omaha, has enacted protections in public accommodations.

In 2018, Megan Hunt became the first openly LGBT person elected to the Nebraska Legislature.[1] 2019 polling from the Public Religion Research Institute showed that 73% of Nebraska residents supported anti-discrimination legislation protecting LGBT people.

Legality of same-sex sexual activity

Prior to European settlement of Nebraska, there were no known social or legal punishments for engaging in homosexual activity. Among several Native American tribes, customs of "two-spirit" individuals existed, where male-bodied or female-bodied people would dress, act and live as the opposite gender, as well as perform tasks associated with the opposite gender. Such individuals are known as mix'uga in the Omaha-Ponca language, spoken by the Ponca and Omaha peoples. The Native Americans did not share the typical Western views of gender and sexuality.

In 1858, a few years after the creation of the Nebraska Territory, a prohibition on sodomy ("crime against nature"), whether heterosexual or homosexual, was passed into law. Punishment varied between one year to life imprisonment. In the 1910 case of Kinnan v. State, the Nebraska Supreme Court unanimously ruled that fellatio (oral sex) was not a violation of the sodomy statute. In response, the Nebraska Legislature revised certain parts of the law in 1913, outlawing fellatio and reducing the maximum penalty for sodomy to 20 years in jail.[2]

In 1929, Nebraska amended its sterilization law to make it applicable to state inmates who were "feeble-minded, insane, habitual criminals, moral degenerates or sexual perverts". This law was upheld by the state Supreme Court in In Re Clayton in 1931. By 1934, 276 people had been sterilized. The law was repealed in 1969, having almost only being used on the "insane or mentally retarded".[2]

All sodomy laws were repealed at the state level when a revised criminal code was enacted in June 1977, effective on July 1, 1978.[3][4] The unicameral Nebraska Legislature accomplished the repeal by overriding the veto of the original legislation by Governor J. James Exon by the minimum margin, 32 to 15. No other state repealed its sodomy criminalization statute by such a veto override.

The extent to which the state's anti-sodomy statute was enforced is unclear; Nebraska has no published sodomy cases during the 1950s or 1960s. Like many other states, Nebraska enacted a "psychopathic offender" law in the years after World War II. The Nebraska Bar Association objected when that law was revised to cover a first offense. A study showed that 7% of commitments under the law were for consenting adult gay men.[2]

Recognition of same-sex relationships

Main article: Same-sex marriage in Nebraska

Same-sex marriage

Same-sex marriage has been legal in the state of Nebraska since June 26, 2015, when the U.S. Supreme Court ruled in Obergefell v. Hodges that the denial of marriage rights to same-sex couples is unconstitutional. That same day, Attorney General Doug Peterson said in a statement that "Recognizing the rule of law, the State of Nebraska will comply with the ruling of the United States Supreme Court in Obergefell. Nebraska officials will not enforce any Nebraska laws that are contrary to the United States Supreme Court's decision in Obergefell."[5]

History

Nebraska is one of a handful of states to have banned same-sex marriage in its state Constitution but not in the form of a legislative statute. Voters adopted, by a 70% to 30% margin, a constitutional amendment in November 2000 that defined marriage as the union of a man and a woman.[6] Following the initiative, Nebraska extended hospital visitation rights to same-sex couples through a designated visitor statute.[7]

There have been two significant lawsuits related to same-sex marriage in Nebraska. In 2005/06, in the matter of Citizens for Equal Protection v. Bruning, same-sex couple plaintiffs were successful in the United States District Court for the District of Nebraska having the state's constitutional ban on same-sex marriage struck down.[8] However, an appeal by the state to the United States Court of Appeals for the Eighth Circuit reversed that ruling in 2006.[9]

Following the U.S Supreme Court's ruling in United States v. Windsor (2013), state bans on same-sex marriage came under enhanced judicial scrutiny. In the matter of Waters v. Ricketts (2015), the U.S District Court for the District of Nebraska again struck down the state's constitutional ban on same-sex marriage. The decision of the district court was stayed until the Supreme Court's ruling in Obergefell v. Hodges on June 26, 2015, which struck down all state bans on same-sex marriage under the Equal Protection and Due Process clauses of the United States Constitution.

Kathy Pettersen and Beverly Reicks were the first same-sex couple to file marriage paperwork at the Douglas County Clerk's Office on June 26, 2015.[10] Barbara DiBernard and Judith Gibson were the first to wed in Lancaster County, which contains the capital city of Lincoln.[11]

Adoption and parenting

Nebraska permits adoption by same-sex couples and single LGBT individuals.[12] Lesbian couples can access in vitro fertilization. State law 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.[13]

On August 27, 2013, three same-sex couples filed a lawsuit in state court seeking the right to serve as foster and adoptive parents. They claimed that the state's refusal to allow two unmarried adults or two homosexuals to adopt has been consistently enforced only against same-sex couples.[14][a] Ruling in Stewart v. Heineman, Lancaster County District Judge John Colborn ruled for the plaintiffs on August 5, 2015. He wrote: "Defendants have not argued, nor have they identified, any legitimate government interest to justify treating gay and lesbian couples differently than heterosexual individuals and heterosexual couples" in reviewing applications for foster and adoptive parents.[16] The state appealed the ruling. In April 2017, the Nebraska Supreme Court upheld that decision and struck down the state's ban on same-sex couples becoming foster parents.[17] The court compared the law to "a sign reading 'Whites Only' on the hiring-office door."[15]

The Nebraska Supreme Court in March 2021 reversed a lower court ruling banning a same-sex couple from adopting. The court held that state adoption law "clearly allow a same-sex married couple to adopt".[18]

In October 2021, an unmarried female same-sex couple is suing the state of Nebraska with a lawsuit because of discrimination and a "lack of parental recognition" - on their own and each other's biological children's birth certificates. Under Nebraska legislation unmarried heterosexual couples can get "automatically full parental recognition of their children", but not unmarried same-sex couples in the same exact situation.[19]

Discrimination protections

Further information: LGBT employment discrimination in the United States

Map of Nebraska cities that had sexual orientation and/or gender identity anti–employment discrimination ordinances prior to Bostock .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 in public employment   Sexual orientation in public employment   Does not protect sexual orientation and gender identity in employment¹ ¹Since 2020 as a result of Bostock, discrimination on account of sexual orientation or gender identity in public and private employment is outlawed throughout the state.
Map of Nebraska cities that had sexual orientation and/or gender identity anti–employment discrimination ordinances prior to Bostock
  Sexual orientation and gender identity with anti–employment discrimination ordinance
  Sexual orientation and gender identity in public employment
  Sexual orientation in public employment
  Does not protect sexual orientation and gender identity in employment¹
¹Since 2020 as a result of Bostock, discrimination on account of sexual orientation or gender identity in public and private employment is outlawed throughout the state.

Following the 2020 court case of Bostock v. Clayton County, employment discrimination against LGBT people by reason of their sexual orientation or gender identity became illegal in the US, including in Nebraska. Prior to this case, Nebraska had no statewide protections for this type of discrimination.[20] The ruling does not apply to discrimination in the areas of health care, credit, housing and public accommodations.

Bills to ban discrimination based on sexual orientation and gender identity were introduced in the Nebraska Legislature a number of times,[21][22] but all were rejected or stalled.[23]

As of 2020, only Omaha has a city-level ordinance, in effect since 2012, that prohibits discrimination on the basis of sexual orientation and gender identity in both public and private sectors with respect to employment and public accommodations.[24] The cities of Grand Island and Lincoln prohibit discrimination on the basis of sexual orientation in public employment only.[25] Bellevue has a similar policy that also includes gender identity.[26] South Sioux City prohibits housing discrimination based on sexual orientation or gender identity.[13]

A proposed anti-discrimination ordinance was rejected by Lincoln voters in 1982. A campaign of opposition to the ordinance, led by UNL researcher Paul Cameron,[27] resulted in the formation of the Family Research Institute, which has been designated by the SPLC an anti-gay hate group. Lincoln still has no LGBT anti-discrimination ordinance for housing or private-sector employment.

Bostock v. Clayton County

Main article: Bostock v. Clayton County

On June 15, 2020, the U.S. Supreme Court ruled in Bostock v. Clayton County, consolidated with Altitude Express, Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission that discrimination in the workplace on the basis of sexual orientation or gender identity is discrimination on the basis of sex, and Title VII therefore protects LGBT employees from discrimination.[28][29][30]

In early August 2020, the Nebraska Legislature passed a resolution, sponsored by Senator Patty Pansing Brooks, expressing support for the Bostock decision, by a 28 to 8 vote with several abstentions and absences.[31]

In August 2020, the Nebraska Equal Opportunity Commission announced in light of Bostock that it will investigate and resolve cases alleging housing discrimination on account of sexual orientation or gender identity.[32] Marna Munn, executive director of the Commission, said, "We will now be investigating housing claims on the basis of sexual orientation and gender identity. We will investigate on that basis, and we will create a disposition on that basis." Munn argued it would ultimately be up to the courts to affirm whether the Bostock decision also extends to housing cases, but that "it would be a stretch to think the U.S. Supreme Court would use different definitions of sex for workplace discrimination and housing discrimination". All the language is part of the same federal civil rights act, and Nebraska's statutes mirror the language of the federal law.

Nebraska State College System

In November 2021, the Nebraska State College System passed a vote by 4-2 to explicitly include “gender identity” within it’s policy changes.[33][34][35]

Transgender rights

Further information: Transgender rights in the United States

Transgender people legally resident in Nebraska are allowed to change the gender marker on their birth certificate. In order to do so, they must submit to the Vital Records Office "a notarized affidavit from the physician that performed sex reassignment surgery on [them] and a certified copy of an order of a court of competent jurisdiction changing [their] name". Changes to IDs and driver's licenses are also permitted; the applicant must submit to the Department of Motor Vehicles a court order certifying the change and/or a form signed by a licensed physician confirming sex reassignment surgery.[36]

Nebraska permits transgender people to change their name. After completing all the necessary paperwork with the county clerk, the applicant must schedule a court date and publish their name change for at least five consecutive weeks in a public record (for example a local newspaper).[37]

The Nebraska School Activities Association requires transgender students wishing to participate in athletics to show evidence of hormone replacement therapy or sex reassignment surgery.[38]

Hate crime law

In 1997, Nebraska passed a hate crime law, reading "A person in the State of Nebraska has the right to live free from violence, or intimidation by threat of violence, committed against his or her person or the destruction or vandalism of, or intimidation by threat of destruction or vandalism of, his or her property regardless of his or her race, color, religion, ancestry, national origin, gender, sexual orientation, age, or disability". Gender identity is not mentioned. The following crimes are among those subject to enhanced sentences: manslaughter, assault, terroristic threats, stalking, kidnapping and false imprisonment, rape and sexual assault, arson, criminal mischief, and trespassing.[39]

A recent hate crime case occurred in October 2013. Ryan Langenegger and two gay friends were eating at a restaurant at the Old Market in Omaha, but left after overhearing three other male customers using homophobic slurs. The three men followed them to their car and continued the harassment. One of them, Gregory Duncan, punched Langenegger in the face before leaving. A jury convicted Duncan of third-degree assault and a hate crime charge, noting that while Langenegger was straight, state statutes specifies that those in the company of specific groups deserve protection as well. Duncan challenged the hate crime charge, with his attorney raising doubts that his punch met the definition of a hate crime and hoping that the case would "provide some direction for our courts" as to the definition of "sexual orientation" as the term is not explicitly defined in state law. The Attorney General commented that the "state might consider a more scholarly and legally sound definition of "sexual orientation"."[40] The state Supreme Court upheld Duncan's hate crime charge in April 2016.[41]

Although gender identity is not addressed, federal law has covered this category since 2009, when the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act was signed into law by President Barack Obama.

Conversion therapy

Further information: List of U.S. jurisdictions banning conversion therapy

Attempting to change someone's sexual orientation, also known as conversion therapy, is outlawed in Lincoln.[42] It is lawful in the rest of the state. Senator Megan Hunt reintroduced a bill in 2021 to ban conversion therapy in Nebraska.[43]

Public opinion

A 2017 Public Religion Research Institute (PRRI) opinion poll found that 54% of Nebraska residents supported same-sex marriage, while 33% opposed it and 13% were unsure. Additionally, 66% supported an anti-discrimination law covering sexual orientation and gender identity. 21% were opposed.[44]

Public opinion for LGBT anti-discrimination laws in Nebraska
Poll source Date(s)
administered
Sample
size
Margin of
error
% support % opposition % no opinion
Public Religion Research Institute January 2-December 30, 2019 416 ? 73% 20% 7%
Public Religion Research Institute January 3-December 30, 2018 435 ? 65% 25% 10%
Public Religion Research Institute April 5-December 23, 2017 519 ? 66% 21% 13%
Public Religion Research Institute April 29, 2015-January 7, 2016 587 ? 65% 29% 6%

Summary table

Same-sex sexual activity legal
(Since 1978)
Equal age of consent (16)
(Since 1978)
Anti-discrimination laws in employment
(Since 2020)
Anti-discrimination laws in housing
(Since 2020; per decision of the Nebraska Equal Opportunity Commission)
Anti-discrimination laws in public accommodations
Anti-discrimination laws in schools and colleges
Same-sex marriages
(Since 2015)
Stepchild and joint adoption by same-sex couples
Lesbian, gay and bisexual people allowed to serve openly in the military
(Since 2011)
Transgender people allowed to serve openly in the military
(Since 2021)[45]
Intersex people allowed to serve openly in the military
(Current DoD policy bans "hermaphrodites" from serving or enlisting in the military)[46]
Right to change legal gender
(Requires sex reassignment surgery)
Conversion therapy banned on minors
/
(Lincoln only)[47]
Gay panic defense banned
Access to IVF for lesbian couples
Surrogacy arrangements legal for gay male couples
[48]
MSMs allowed to donate blood
/
(Since 2020; 3-month deferral period)[49]

Notes

  1. ^ The policy was established in a 1995 memo authored by the head of the state Department of Health and Human Services that said: "It is my decision that effective immediately, it is the policy of the Department of Social Service that children will not be placed in the homes of persons who identify themselves as homosexuals. This policy also applies to the area of foster home licensure in that, effective immediately, no foster home license shall be issued to persons who identify themselves as homosexual".[15]

See also

References

  1. ^ "Megan Hunt becomes first openly LGBTQ person elected to legislature" KMTV, November 8, 2018.
  2. ^ a b c The History of Sodomy Laws in the United States: Nebraska
  3. ^ William N. Eskridge, Dishonorable Passions: Sodomy Laws in America, 1861-2003 (NY: Penguin Group, 2008), 201n, available online, accessed April 10, 2010
  4. ^ Laws of Nebraska 1977, page 88, enacted June 1, 1977, effective July 1, 1978
  5. ^ "Office of Nebraska AG: Response to U.S. Supreme Court Ruling on Marriage". Nebraska Attorney General. June 26, 2015. Archived from the original on June 30, 2015. Retrieved June 28, 2015.
  6. ^ David Orgon Coolidge, "Evangelicals and the Same-Sex 'Marriage' Debate," in Michael Cromartie, ed., A Public Faith: Evangelicals and Civic Engagement (Washington, DC: Ethics and Public Policy Center, 2003), 98-99, available online, accessed April 11, 2011
  7. ^ "Nebraska: Marriage Equality facts". Marriage Equality USA.
  8. ^ Citizens for Equal Protection v. Bruning, 368 F. Supp. 2d 980 (D.Neb. 2005) Archived 2011-07-14 at the Wayback Machine
  9. ^ "Citizens for Equal Protection v. Bruning, 368 F. Supp. 2d 980 (8th Cir. 2006)" (PDF). Archived from the original (PDF) on 2011-12-13. Retrieved 2011-04-11.
  10. ^ "Heartland Response To Gay Marriage Ruling Is Quick". WOWT NBC Omaha. June 26, 2015.
  11. ^ Stoddard, Martha (June 28, 2020). "5 years after landmark ruling, gay marriage more accepted but still controversial in Nebraska". Omaha World-Herald. Retrieved July 23, 2020.
  12. ^ Human Rights Campaign: NebraskaAdoption Law Archived 2012-03-11 at the Wayback Machine, accessed April 11, 2011
  13. ^ a b "Nebraska's equality profile". Movement Advancement Project.
  14. ^ O'Brien, Brendan (August 27, 2013). "Couples challenge Nebraska ban on gay adoptive and foster parents". Reuters. Retrieved August 29, 2013.
  15. ^ a b Chavez, Nicole (April 8, 2017). "Nebraska ban on LGBT foster parents to end, court rules". CNN.
  16. ^ Duggan, Joe; Hammel, Paul (August 7, 2015). "Judge strikes down Nebraska's ban on gay foster parents". Omaha World-Herald. Retrieved April 12, 2017.
  17. ^ "Nebraska court rules to end ban on LGBT foster parents". WFXT. April 9, 2017.
  18. ^ Beck, Margery (March 26, 2021). "Ruling denying adoption by same-sex Nebraska couple reversed". Associated Press.
  19. ^ [1]
  20. ^ Young, JoAnne (June 15, 2020). "Landmark court decision on LGBTQ workplace rights lauded by those Nebraskans working decades to grant them". Lincoln Journal Star. Retrieved June 17, 2020.
  21. ^ Nebraska bill to add LGBT workplace protections tabled for year
  22. ^ LGBT workplace discrimination bill halted for now
  23. ^ Nebraska senators reject ban on LGBT employee discrimination
  24. ^ Omaha passes LGBT ordinance, accessed March 30, 2017
  25. ^ Municipal Equality Index 2016
  26. ^ BELLEVUE, NEBRASKA 2018 MUNICIPAL EQUALITY INDEX SCORECARD
  27. ^ "Homosexuality 'teach-in' set". The Lincoln Star. January 18, 1982. Retrieved December 12, 2019.
  28. ^ Biskupic, Joan (June 16, 2020). "Two conservative justices joined decision expanding LGBTQ rights". CNN.
  29. ^ "US Supreme Court backs protection for LGBT workers". BBC News. June 15, 2020.
  30. ^ Liptak, Adam (June 15, 2020). "Civil Rights Law Protects Gay and Transgender Workers, Supreme Court Rules". The New York Times.
  31. ^ "Resolution LR466". LegiScan.
  32. ^ "State agency applies U.S. Supreme Court ruling on LGBT job rights to housing cases". Omaha World-Herald. August 12, 2020.
  33. ^ [2]
  34. ^ [3]
  35. ^ [4]
  36. ^ Nebraska Birth Certificate Laws
  37. ^ "Nebraska Transgender Community Ressources". Professional Transgender Ressource Network.
  38. ^ "Policies by state". Transathlete.com.
  39. ^ "Nebraska passes hate crime law" (PDF). Academic Freedom Coalition of Nebraska. September 12, 1997.
  40. ^ "Nebraska Hate Crime Law Scrutinized By State Supreme Court". netnebraska.org. March 18, 2016.
  41. ^ "Nebraska Supreme Court upholds hate crime law in Old Market assault case". Omaha World-Herald. April 15, 2016.
  42. ^ Johnson, Riley (February 22, 2021). "Lincoln passes first ban in Nebraska to prevent conversion therapy on youth". Lincoln Journal Star.
  43. ^ "Nebraska lawmakers consider banning conversion therapy statewide". KETV Omaha. Retrieved March 1, 2021.
  44. ^ PRRI: American Values Atlas 2017
  45. ^ Baldor, Lolita; Miller, Zeke (January 25, 2021). "Biden reverses Trump ban on transgender people in military". Associated Press.
  46. ^ "Medical Conditions That Can Keep You From Joining the Military". Military.com.
  47. ^ "Lincoln passes first ban in Nebraska to prevent conversion therapy on youth". KEYT-TV. February 23, 2021.
  48. ^ "Gestational Surrogacy in South Dakota". Creative Family Connections. Retrieved February 1, 2019.
  49. ^ McNamara, Audrey (April 2, 2020). "FDA eases blood donation requirements for gay men amid "urgent" shortage". CBS News.