Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of Ohio have most of the rights non-LGBT residents have. Same-sex sexual activity is legal in Ohio, and same-sex marriage has been legally recognized since June 2015 as a result of Obergefell v. Hodges.[2] Ohio statutes do not address discrimination on account of sexual orientation and gender identity; however, the U.S. Supreme Court's ruling in Bostock v. Clayton County established that employment discrimination against LGBT people is illegal in 2020. In addition, a number of Ohio cities (including Athens, Columbus, Cincinnati, Cleveland, Dayton and Toledo) have passed anti-discrimination ordinances providing protections in housing and public accommodations. Conversion therapy is also banned in a number of cities. In December 2020, a federal judge invalidated a law banning sex changes on an individual's birth certificate within Ohio.[1]
Recent opinion polls have shown that LGBT rights enjoy popular support in the state. A 2016 Public Religion Research Institute survey showed that 61% of Ohio residents supported same-sex marriage. Another survey by the same pollster in 2019 showed that 71% of respondents favored non-discrimination laws protecting LGBT people.[3]
History and legality of same-sex sexual activity
As part of the Northwest Territory, Ohio passed the "buggery" law, which provided the death sentence for homosexual sexual activity. In 1804, shortly after statehood, the law was repealed and sodomy was legalized.[4] Despite several court decisions and newspaper articles acknowledging sodomy as legal, the Ohio General Assembly made no effort to overturn these decisions or enact a new law over the following decades.[5][6][7] However, the Ohio cities of Cincinnati, Dayton, and Columbus were some of the first to pass laws against "indecent behavior" in 1819, 1842, and 1848 respectfully. Cincinnati and Dayton also passed laws in 1849 prohibiting "obscene publications and immoral plays", and Columbus passed a law in 1848 prohibiting men from cross dressing in women's clothing, and vice versa.[8]
Ohio adopted its first sodomy law in 1885, stating that anyone who has "carnal copulation against nature, with another human being or with a beast," is guilty of sodomy, and when convicted, shall be imprisoned in a penitentiary for "not more than twenty years".[9] This was revised to include fellatio (oral sex) in 1889.[10] It applied to private, consensual activity as well, and led to police raids on "establishments with a known gay clientele".[11] In April 1886, the Supreme Court of Ohio ruled in Foster et al v. State that sodomy, or "copulation against nature", required the presence of a male, meaning that lesbian sexual activity was exempt from prosecution and thus legal, whereas homosexual and heterosexual sodomy were both punished by up to 20 years' imprisonment.[12]
A 1906 text on state law stated that sodomy could be committed "between two human beings, as between two men, a man and a woman, a man and a boy, a man and a girl, two boys or a boy and a girl where of that age when capable of the crime". Over the following years, numerous court cases dealt with the issue of sodomy, including one in 1915, where a man was sent to the State Reformatory for having engaged in masturbation. In 1929, Ohio law was changed to make sodomy, said to include "any form of unnatural copulation", an offense without possibility of parole.[13][14] In 1939, the Ohio General Assembly passed a "psychopathic offender" law, under which those convicted of sodomy could be sentenced to life in a mental health institution and were not permitted to be released, even if they were "cured", until the expiration of the minimum term for which, if he or she had been imprisoned, the prisoner would be eligible for parole. An appellate court, ruling in 1944 in State v. Forquer, held that cunnilingus fell out of the sodomy statute's scope.[15] In 1945, State v. Walhenmaier, an Ohio Circuit Court stated that sodomy could be "evidenced by medical examination results".[16]
A landmark 1957 case (Johnston v. Johnston) resulted in married couples being exempt from prosecution for sodomy: "the private moral relationship between husband and wife are concerned (as to either cunnilingus or fellation [sic],) it is certainly one that rests entirely in the minds of the two of them"; Ohio being the first state in the U.S. to do so.[5] Ohioans were also subscribing to ONE magazine in record numbers, and others were collating in drinking establishments such as lesbian bars.[17][18] In 1963, Ohio adopted a sex offender registry law, which "disproportionately affected" the LGBTQ community in the state.[19] One year prior, police in Mansfield, Ohio had arrested men in a bathroom they "found having sex" and spied on others who "simply stopped to use the restroom" with a hidden camera.[20][21] The United States Supreme Court declined to hear appeals for sodomy convictions in Mansfield, Ohio in Poyer v. Mayer (1964) and Chamberlain v. Ohio (1966).[22][23]
In 1972, Ohio became the eighth state to repeal its sodomy statute.[24][25] Nevertheless, it remained a misdemeanor to express romantic or sexual interest to another person of the same sex, even though Ohio was "one of the earliest states to decriminalize homosexuality".[5][26][27] The law was part of a criminal code which was the first in the U.S. to have "gender-neutral sexual assault laws".[28] There were also successful challenges to laws aimed against cross dressing in the state, beginning in the 1970s.[29]
The Ohio Supreme Court, in 1974, upheld the refusal of the Ohio Secretary of State, arguing that the promotion of homosexuality as a valid lifestyle is contrary to the public policy of this state", to deny the incorporation of Greater Cincinnati Gay Society for a nonprofit corporation, even though sodomy was no longer illegal.[30][31] In 1979's State v. Phipps, the Supreme Court of Ohio narrowed the sodomy statute's provision to cover only cases in which the proposition was "unwelcome".[32][33][34] In a somewhat related case, in August 1997, Lambda Legal filed a friend-of-the-court legal brief in support of a Jeremy Bird, in Ohio v. Bird, a HIV-positive man "convicted of committing assault with a deadly weapon" after accused of "spitting at a police officer" and spreading HIV. In May 1998, the Ohio Supreme Court affirmed the conviction but did not reach issue on "whether HIV can be transmitted via saliva."[35]
The broad discriminatory nature of the application of Ohio's 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.[36][37][38] The jogger contacted the police, however, and Thompson was arrested and sentenced to 6 months in jail.[36][37][38] In December 2000, the Ohio Eleventh District Court of Appeals reluctantly upheld the trial court decision.[39] In its decision, the Ohio Eleventh rules that it was not clear why the law only applied to "same sex solicitation and not to opposite sex solicitation" and argued it was "inherently inconsistent for the Ohio legislature to now criminalize homosexual solicitation after it has chosen to decriminalize homosexual conduct between consenting adults."[39]
In May 2002, the Supreme Court of Ohio unanimously overturned Thompson's conviction,[36][37][38] writing that the law was "facially invalid" under the Fourteenth Amendment to the United States Constitution and Section 2, Article I of the Ohio Constitution.[37] As part of a 2003 overhaul to the Sex Offender Registration and Notification Law (SORN), Ohio repealed its anti-gay importuning law.[40] Apart from this case, other litigation which affected LGBTQ people in Ohio included Gajovski v. Gajovski (1991) and Equality Foundation of Greater Cincinnati v. City of Cincinnati (1994).[41] On June 26, 2003, the United States Supreme Court ruled in Lawrence v. Texas to abolish all remaining sodomy laws and statutes nationwide.[42][43][44]
Recognition of same-sex relationships
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
In 2003, 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.[45] It was opposed by eleven Democrats and four Republicans in the Senate. Governor Bob Taft signed the legislation on February 6, 2004.[33] The legislation was enacted in the aftermath of the Goodridge decision on November 18, 2003 in Massachusetts.[6] Ballot Issue 1 of 2004 was a constitutional amendment initiated by the General Assembly 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.[46][47][48]
The amendment was supported by the groups Ohio Campaign to Protect Marriage and the Traditional Marriage Crusade, and opposed by the group Ohioans for Fairness.[49] Additionally, both Governor Taft and Representative Bill Seitz opposed the amendment on the grounds that it was too vague. These laws came at the same time other states passed similar measures in voter referendums.[50][51] The LGBT rights organization Equality Ohio was founded in response to the passage of Issue 1.[52] The amendment was criticized by legal scholar Wilson Huhn as unconstitutional because it violated "the fundamental right of marriage" and creates "different rules for different people", while enacting opinions against same-sex marriage into law and does not affect opposite-sex and same-sex couples equally.[53][54] In 2009, constitutional law scholar Tiffany G. Graham noted there was "inherent ambiguity...built into the amendment",[55] and the executive director of Equality Ohio, Sue Doerfer, stated in 2017 that the amendment "legitimized discrimination" against same-sex couples in the state and "adversely" affected gay people.[56]
In July 2007, the Ohio Supreme Court ruled in Ohio v. Carswell that Issue 1 amendment did not effect the state's domestic violence law.[57][58] Following the decision, Metro Weekly argued that the decision was a "small victory" even though Issue 1 amendment remained in place, and constitutional law expert Marc Spindelman criticized the legal strategy of Lambda Legal in the case.[59] Constitutional law scholar Tiffany G. Graham argued that the court's decision limited the amendment's reach only to same-sex marriage and civil unions, but failed when determining who had legal status, and erred in not declaring the amendment unconstitutional.[60] In April 2014, Judge Timothy Black declared Ohio's ban on same-sex marriage unconstitutional and stated that Ohio was required to recognize same-sex marriages from other jurisdictions.[61][62]
Presently, several jurisdictions in the U.S. state of Ohio, such as the village of Yellow Springs, and the counties of Cuyahoga and Franklin, have established domestic partnerships for same-sex couples. The fate of these partnerships remains uncertain since marriage has become available to all couples.[70]
In November 2007, Ohio legislator Tom Brinkman and Alliance Defending Freedom declined to appeal their lawsuit against the domestic partner benefits program of Miami University to Ohio Supreme Court, following a dismissal of the lawsuit by the Ohio Court of Appeals in August 2007 and Butler County Court of Common Pleas in November 2006.[71][72] In the case of In the Matter of J.D. Fairchild, in December 2008, the Ohio Supreme Court affirmed the "enforceability of the court-approved custody agreement" between two lesbian parents,[73] despite the Ohio amendment prohibiting same-sex marriage.[74] This ruling was later used by Lambda Legal to support their defense of a lesbian parent in the case of In re S.J.L. and J.K.L..[75] The Ohio Court of Appeals ruled, in In re S.J.L. and J.K.L., in August 2010, that the state's 2004 constitutional amendment did not affect the ability of Ohio courts to "order shared custody between former same-sex partners".[76][77]
In October 2010, the Ohio Court of Appeals sided with Lambda Legal in Cleveland Taxpayers v. Cleveland, retained the city's domestic partnership registry for "same-sex couples and their families".[78] Scholar Daniel R. Pinello stated that the rulings in Cleveland Taxpayers v. Cleveland and In re S.J.L. and J.K.L. reinforced the message that those governments which violate Issue 1, and favor same-sex partners, will be sued.[79] The Ohio Supreme Court, in July 2011, in the case of In the Matter of L.K.M. ruled 4-3 against a non-biological mother seeking "shared custody and visitation rights".[80][81]Lambda Legal, which represented the mother in this case and in the partners In re S.J.L. and J.K.L.,[82] criticized the ruling as a "tragedy for the child" and said that all families in Ohio families should be "alarmed" by the decision.[83]
Adoption and parenting
Currently, Ohio does not offer "second parent adoption" for unmarried couples, have LGBTQ-inclusive family leave laws, or recognize parents using assisted production, but does recognize "de facto parents".[84][85][86]
Ohio permits single LGBT individuals,[87] as well as married same-sex couples to adopt.[88] Lesbian couples have access to assisted reproduction services such as 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.[84] While there are no specific surrogacy laws in Ohio, the courts have ruled that the practice is legal and surrogacy contracts can be recognized as legally valid. Both gestational and traditional contracts are recognized, though the latter may result in potential legal conflicts and more litigation than the former. The state treats different-sex and same-sex couples equally under the same terms and conditions.[89]
Discrimination protections
2017 Cincinnati Pride paradeCleveland Pride parade 2017
Ohio state statutes do not address discrimination on account of sexual orientation and gender identity.[90][91] Discrimination based on sexual orientation is prohibited in state employment under an executive order issued by Governor John Kasich on January 21, 2011.[92][93][94] He issued a new executive order on December 19, 2018 to include gender identity or expression, in one of his last actions as governor.[95][96]
In January 1974, Columbus, Ohio, passed a law protecting "housing and public accommodations" rights for homosexuals.[97] Ohio also prohibited sexual orientation discrimination in state employment in 1983.[98] In October 1998, the United States Supreme Court declined to hear a case about a ballot measure which repealed the anti-discrimination law in Cincinnati,[99] even though litigation challenging anti-LGBTQ employment discrimination in the state later failed.[100]
On March 7, 2018, the United States Court of Appeals for the Sixth Circuit (covering Kentucky, Michigan, Ohio and Tennessee) ruled that discrimination on the basis of transgender status is tantamount to discrimination on the basis of "sex", as defined by Title VII of the Civil Rights Act of 1964. 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 employer that she was transgender and planned to transition. She was promptly fired by her employer.[101] The court held that the dismissal was discriminatory and violated federal law. An appeal to the case was heard by the Supreme Court in the 2019 term, concurrently to Bostock v. Clayton County and Altitude Express, Inc. v. Zarda, under R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission. On June 15, 2020, the U.S. Supreme Court ruled 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.[102][103][104]
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 school board argued that they had the "right to limit clothing with sexual slogans...in order to protect its students and enhance the educational environment" and stated that the school principal, Randy Gebhardt, had the authority to request that remove his T-shirt and refrain from wearing it.[144][145][146] 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.[147] Upon the announcement of the decision, Lambda Legal attorney Christopher Clark stated that the ruling provided that "First Amendment rights apply to all students on every day of the year" and that efforts to "silence LGBT youth will not go unchallenged."[148]
There are procedures for changing name and gender on an Ohio birth certificate.[149]
Following a 1987 court case, In re Ladrach, Ohio did not allow persons born in the state to amend the gender marker on their birth certificate following sex reassignment surgery.[150] This policy was revised in 2016.[151] In March 2018, four transgender Ohioans sued the Department of Health, seeking to have In re Ladrach overruled and be issued birth certificates reflecting their gender identity. At the time the lawsuit was filed, and supported by ACLU and Lambda Legal,[152] Ohio was one of just three states where transgender people were banned from amending their birth certificates.[153] Following such legal challenges,[154][155] like in Ray v. McCloud[156] in December 2020, federal judge Michael H. Watson invalidated it as unconstitutional.[157][158] After June 1, 2021, Ohio, officially and legally, allowed transgender individuals to update their birth certificate, as the Ohio Department of Health did not appeal Watson's ruling.[154] However, some counties continue to refuse birth corrections for transgender individuals.[159]
Driver's licenses
Transgender people can change their legal name and gender on their driver's license or other ID card. In order for them to do so, they must submit to the Bureau of Motor Vehicles a court order certifying the name change and/or a "Declaration of Gender Change" form signed by a physician, nurse practitioner, social worker, therapist or psychologist certifying the applicant's gender identity.[160] Since April 2022, Ohio driver's licenses offer an "X" option alongside "M" and "F".[161]
Gender-affirming healthcare
In 1975, an assembly worker at the Lordstown, Ohio, plant for General Motors took leave to undergo gender-affirming surgery (GAS), also known as sex reassignment surgery (SRS) or gender confirmation surgery (GCS), and returned to work as Joni Christian, confronting hostile co-workers and supervisors. Christian later sued GM for invasion of her privacy and won a "satisfactory settlement".[162] The Washington Post reported, in July 2019, that officials from Ohio were not following policies that excluded Medicaid coverage for SRS, but it was "not...in writing yet."[163] In October 2021, Ohio representatives Gary Click and Diane Grendell introduced a law that would have prohibited GAS for minors, along with Medicaid coverage and public money toward healthcare providers which conduct GAS.[164][165] The law was opposed by groups including the Ohio Counseling Association,[166]Equality Ohio,[167] TransOhio,[168]Human Rights Campaign[168] and Ohio Senator Nickie Antonio,[167] while the Center for Christian Virtue[169] and Family Research Council[168] supported the measure. The bill received five hearings and was assigned to the Ohio House Committee on Families, Aging, and Human Services.[170]
In November 2022, the Ohio House Committee on Family, Aging, and Human services, heard a bill to outlaw hormone therapy, puberty blockers, and gender-affirming surgeries for minors.[171] The bill also mandated that any other forms of gender affirming care or counseling only be given after a two year long screening period, in which any comorbidities, defined to include anxiety, depression, ADHD, and autism, had to be “treated and stabilized” for an additional two years, and would mandate what some have described as “a type of registry” for trans kids, in which the exact name of the patient would not be included, but other identifying details would that would make it possible to identify the trans child.[172]
Restrictions on youth and adult care
On December 13, 2023, the Ohio Legislature passed the Saving Adolescents from Experimentation (SAFE) Act (HB68), mostly along party lines. It would have banned gender-affirming puberty blockers, hormones, and surgery for people under 18, and it would have banned transgender girls and women from playing on women's sports teams in high school and college.[173][174][175] However, on December 29, Governor Mike DeWine vetoed the bill.[176]
The following week, DeWine signed into law an executive order banning gender affirming surgeries for minors, and announced new rules regarding access to care for both adults and minors. These rules required that in order for any trans patient to access gender affirming healthcare, they must:
Receive continual psychiatric counseling in perpetuity, with a psychiatrist with prior experience in the treatment transgender people of the relevant age group.
Maintain a consistent relationship with an endocrinologist with prior experience of the same nature.
Have their plan of treatment approved by a bioethicist, including a detailed plan for in the event of detransition.
Additionally, if the patient is under 21 years of age:
They must receive at least six months of comprehensive mental health evaluation, to be detailed in the patient’s medical records.
The rules also require that all healthcare providers in Ohio report all cases of gender dysphoria to the state within 30 days.[177][178][179][180]
In February 2015, a bill to prohibit the use of conversion therapy on LGBT minors in Ohio was introduced by Senator Charleta Tavares,[181][182] who had introduced a similar bill in October 2013[183][184][185] The bill died without any legislative action. In April 2016, Tavares testified against conversion therapy, arguing that LGBTQ youth should not be subject to "treatments that reinforce...futile and obsolete practices".[186] In their 2018 scorecard about LGBTQ issues and the Ohio legislature, Equality Ohio called for a state-wide ban on conversion therapy to prevent "great mental, emotional, spiritual, and physical harm to young people" and noted their role in advocating for bans on conversion therapy "in several Ohio cities".[187] In November 2018, Tavares criticized the Ohio General Assembly for "inaction" on the issue.[188][189] In 2021, Ohio legislators Mary Lightbody, Nickie Antonio, and Tina Maharath introduced bills in the Ohio General Assembly to ban conversion therapy, but the efforts stalled.[190][191] A similar bill was introduced in February 2020 by Rep. Lightbody.[192][193][194]
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.[3] The same poll found that 69% of Ohioans supported an anti-discrimination law covering sexual orientation and gender identity. 25% were opposed.[209] 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.[210]
Public opinion for LGBT anti-discrimination laws in Ohio
^Feingold, Eric. "The David Zimmer Collection". Gay Ohio History Initiative. Ohio History Connection. Archived from the original on September 25, 2022. Retrieved February 7, 2023.
^Boyer, Mark N. (1963). "Decoy Enforcement of Homosexual Laws". University of Pennsylvania Law Review. 112 (259): 261. Archived from the original on December 7, 2018. Retrieved February 7, 2023.
^State v. Forquer, 74 Ohio App. 293 (Ohio Court of Appeals March 13, 1944).
^Boyer, "Decoy Enforcement of Homosexual Laws," 278.
^"Sodomy Laws--Ohio". Gay & Lesbian Archives of the Pacific Northwest. Gay People’s Chronicle. February 22, 2002. Archived from the original on July 14, 2022.
^Huhn, Wilson (2009). "Ohio Issue 1 Is Unconstitutional". North Carolina Central Law Review. 73 (1): 1–31. Archived from the original on June 3, 2020. Retrieved February 10, 2023.
^Graham, "Exploring the Impact of Marriage Amendments", 88
^Graham, "Exploring the Impact of Marriage Amendments", 137
^Emma Carroll (February 15, 2022). H.B. 454 Bill Analysis. Ohio Legislative Service Commission (Report). Ohio Legislature. pp. 1–6. Archived from the original on August 19, 2022. Retrieved February 11, 2023.
.jpg)
.jpg)
