LGBT rights in Arizona

Lesbian, gay, bisexual, and transgender (LGBT) people in the U.S. state of Arizona may face legal challenges not experienced by non-LGBT residents. Same-sex sexual activity is legal in Arizona, and same-sex couples are able to marry and adopt. Nevertheless, the state provides only limited protections against discrimination on the basis of sexual orientation and gender identity. Several cities, including Phoenix and Tucson, have ordinances in place designed to protect LGBT people from discrimination. Phoenix and Tucson have a large presence of LGBT community. The first Phoenix Pride parade took place in 1981, and now attracts thousands of attendees every year.[1] Tucson Pride was founded in 1977, the first in the state.[2]

LGBT rights in Arizona
StatusLegal since 2001
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 relationshipsSame sex marriage legal since 2014
(Majors v. Horne)
AdoptionLegal since 2014
(Majors v. Horne)

History

Arizona has been inhabited by indigenous peoples for thousands of years. Similarly to many Native American tribes in the United States, these groups have traditions of cross-dressing and gender variance, and had perceptions of gender and human sexuality different to that of the Western world. There were no legal or social punishments for engaging in same-sex sexual activity.

Nádleehi (Navajo: nádleeh or nádleehé; literally one who constantly transforms) refers to individuals who are a "male-bodied person with a feminine nature". Historically, the Navajo recognized four gender roles: asdzáán (feminine female), hastiin (masculine male), dilbaa (masculine female), and nádleehi (feminine male). The nádleehi identity is fluid, and such individuals may display both male and female characteristics. Due to the perceived "balance" between both sexes, they were typically chosen for certain societal and communal roles, such as spiritual healers. They would traditionally wear female clothes and do female work, and some would have sexual relations with men which was accepted by the tribe.[3] (See also "LGBT rights in the Navajo Nation")

The Tohono O'odham recognize the term wi:k’ovat, which refers to individuals who are assigned male at birth but act, dress and behave as female. Other people groups recognize similar terms in reference to transgender people and gender variance; male-to-female individuals are hova among the Hopi, alyha among the Mohave, ilyaxai' among the Maricopa, tüwasawuts among the Southern Paiute, ndéʼsdzan among the Western Apache, elxa' among the Quechan, and elha among the Cocopah, whereas female-to-male individuals are hwame among the Mohave, kwiraxame' among the Maricopa, kwe'rhame among the Quechan, and warrhameh among the Cocopah. Nowadays, the term "two-spirit" is increasingly used to refer to these identities.[4]

The relative openness to these different gender identities mostly disappeared after European settlement. Even among the Native Americans, societal perceptions began to change. Owing to the introduction of a more stringent set of beliefs on gender and sexuality by the Europeans, nádleehi became the subject of ridicule.[5] Today, LGBT Navajo may find it difficult being accepted by their family, with 70% of LGBT Navajo youth reportedly attempting suicide.[6]

Sodomy laws were first enacted after modern-day Arizona became part of the Spanish Empire, later joining the newly independent Mexico and finally the United States. Shortly after the Arizona Territory was established in 1863, the Arizona Territorial Legislature passed a criminal code containing provisions banning sodomy with five years' to life imprisonment. It was extended to include fellatio in 1912, while the penalty for sodomy was reduced to one to five years' imprisonment. As was the case for sodomy laws at the time, the code punished both heterosexual and homosexual conduct. In 1951, the penalty was changed to five to twenty years' imprisonment, and further crackdowns on homosexual activity were passed, requiring all those convicted under the sodomy laws to register with the local sheriff and report any change in address. Over the following years, the Arizona Supreme Court rejected multiple challenges that the law was vague and unconstitutional.[7]

In the summer of 1979, the Spiritual Conference for Radical Fairies took place at the Sri Ram Ashram near Benson, in which participants sought to expand the ideas of spirituality within the context of gay liberation.[8]

Legality of same-sex sexual activity

The Arizona Equity Act of 2001 repealed the state's sodomy laws and legalized homosexuality.[9]

Recognition of same-sex relationships
Main article: Same-sex marriage in Arizona

Arizona has recognized same-sex marriage since being forced to end enforcement of its statutory and constitutional bans on same-sex marriage by the decision of a U.S. district court on October 17, 2014.[10]

In November 2006, Arizona voters rejected Proposition 106, which would have banned same-sex marriage and any legal status similar to marriage (such as civil unions or domestic partnerships). Two years later, however, Arizona voters approved the less restrictive Proposition 102 which amended the Constitution to ban the recognition of same-sex marriage. With no constitutional ban on domestic partnerships or civil unions, several cities, including Phoenix, Bisbee, Tucson, Flagstaff and more, subsequently enacted such measures.

Adoption and parenting

Arizona permits adoption by individuals. There are no explicit prohibitions on adoption by same-sex couples or on second-parent adoptions.[11] However, state law requires adoption agencies to "give primary consideration to adoptive placement with a married man and woman". Agencies may place a child with a legally single person if it is in the child's best interest or if there is not a married couple available.[12]

In addition, 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 inseminmnation, but only if the parents are married.[13]

In September 2017, the Arizona Supreme Court unanimously ruled that same-sex spouses have the same parental rights as opposite-sex spouses under state law. Basing their ruling on Obergefell v. Hodges and Pavan v. Smith, the court concluded that married same-sex couples have the right to list both their names on their child(ren)'s birth certificate(s).[14]

De jure, surrogacy is prohibited under Arizona law. However, surrogacy arrangements routinely occur in the state. Couples often petition courts for an order declaring them the legal parents of a child born through a surrogate.[15]

Discrimination protections
Map of Arizona cities that have sexual orientation and/or gender identity anti–employment discrimination ordinances
  Sexual orientation and gender identity with anti–employment discrimination ordinance
  Sexual orientation and gender identity solely in public employment
  Sexual orientation in state employment

Since an executive order issued by Governor Janet Napolitano in 2003, Arizona has prohibited discrimination on the basis of sexual orientation in public employment.[16]

Discrimination in private employment on the basis of both sexual orientation and gender identity is prohibited in Flagstaff,[17] Phoenix,[18] Sedona,[19] Tucson,[20] Tempe,[21] and Winslow.[22] Other cities including Chandler,[23] Gilbert,[24] Glendale,[25] Mesa,[26] and Scottsdale offer more limited protections.[27]

As the result of the Supreme Court of the United States ruling on June 15, 2020, employment discrimination based on sexual orientation and gender identity is now forbidden anywhere in the United States, for all types of employer.[28]

In February 2014, Governor Jan Brewer vetoed a "religious freedom" bill which would have granted any individual or legal entity an exemption from any state law if it substantially burdened their exercise of religion, widely reported as targeting LGBT people.[29]

Citing Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Arizona Court of Appeals upheld Phoenix's anti-discrimination ordinance in June 2018, after a legal challenge seeking to strike it down was filed in 2016. Judge Lawrence Winthrop wrote in his decision:[30]

Prohibiting places of public accommodation from discriminating against customers is not just about ensuring equal access, but about eradicating the construction of a second-class citizenship and diminishing humiliation and social stigma. The least restrictive way to eliminate discrimination in places of public accommodation is to expressly prohibit such places from discriminating... In light of these cases and consistent with the United States Supreme Court’s decisions, we recognize that a law allowing appellants to refuse service to customers based on sexual orientation would constitute a 'grave and continuing harm'.

Hate crime law

Arizona includes sexual orientation as a protected category covered by its hate crime law.[31] Gender identity is not included, though federal law covers crimes triggered by the victim's gender identity since the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act was signed into law in October 2009.

Gender identity and expression

Arizona will issue new birth certificates to post-operative transgender people. Other requirements include a court ordered name change and the payment of the appropriate fees.[32]

On 25 April 2019, the Arizona Supreme Court ruled that family courts have the authority to determine the type of care a transgender child can receive, but only in limited circumstances. In a case that centered on a divorced couple who disagreed on how to care for their child with gender dysphoria, the court held that "when an impasse occurs, the court is authorized to determine not only the parenting plan element in dispute, but also other factors that are necessary to promote and protect the emotional and physical health of the child". The case was remanded to the family court with the directive that any future directives be narrowly tailored and supported by evidence that harm is imminent for the child.[33][34][35]

Since 1982 within Arizona under regulation, any government grants or funding at any level that goes to state-based Medicaid - regarding sexual reassignment surgery performed or conducted on individuals is prohibited. In August 2020, several LGBT individuals, groups, and organizations filed a suit challenging the 1982 Arizona regulation as unconstitutional.[36][37]

Conversion therapy
See also: List of U.S. jurisdictions banning conversion therapy

The Pima County Board of Supervisors passed, in a 3–2 vote, an ordinance banning conversion therapy. Offenders may pay up to 2,500 dollars in fines.[38][39] The ordinance went into effect 30 days later.

No promo homo law
See also: No promo homo laws

In April 2019, the Arizona State Legislature repealed a 1991 law that prohibited AIDS- and HIV-related instruction that "promotes a homosexual life-style", "portrays homosexuality as a positive alternative life-style", or "suggests that some methods of sex are safe methods of homosexual sex."[40] Due to several pending court cases, the constitutionality of the law was questioned.[41][42] For the repeal, the House vote was 55-5, and the Senate vote was 19-10. The repeal went into effect on July 1, 2019.[43][44]

State Senator Sylvia Allen, a Republican, subsequently attempted to introduce a similar law. She proposed removing the word "homosexuality" from public school curricula and preventing any sex education before age 12. The legislation was scheduled to be heard by Arizona's Education Committee in January 2020, but the hearing was postponed so the proposal could be revised.[45]

Public opinion
Phoenix Pride parade, 2017
Further information: Same-sex marriage in Arizona § Public opinion

Public attitudes and opinions toward the LGBT community have evolved significantly in the past decades.

A 2003 poll commissioned by the Northern Arizona University found that 54% of Arizonans opposed same-sex marriage, while 42% were in support. Subsequent polls recorded similar numbers. In 2013, a poll by Rocky Mountain Poll showed a 55% majority in favor of same-sex marriage, and opposition at 35%. Support then fell slightly to below 50% after the legalization of same-sex marriage in 2014, but then increased again, reaching 62% in 2016.

A 2017 Public Religion Research Institute (PRRI) poll found that 63% of Arizona residents supported same-sex marriage, while 28% opposed it and 9% were unsure.[46] The same poll found that 73% of Arizonans supported an anti-discrimination law covering sexual orientation and gender identity, while 20% were opposed.[47] Furthermore, 59% were against allowing public businesses to refuse to serve LGBT people due to religious beliefs, while 35% supported allowing such religiously-based refusals.[48]

Public opinion for LGBT anti-discrimination laws in Arizona
Poll source Date(s)
administered		 Sample
size		 Margin of
error		 % support % opposition % no opinion
Public Religion Research Institute January 3-December 30, 2018 1,237 ? 68% 25% 7%
Public Religion Research Institute April 5-December 23, 2017 1,444 ? 73% 20% 7%
Public Religion Research Institute April 29, 2015-January 7, 2016 1,560 ? 72% 21% 7%

Summary table
Homosexuality legal (Since 2001)
Equal age of consent (Since 2001)
Anti-discrimination laws in employment (Since 2020)[28]
Anti-discrimination laws in the provision of goods and services / (Varies)
Anti-discrimination laws in all other areas / (Varies)
Same-sex marriages (Since 2014)
Recognition of same-sex couples (Since 2014)
Stepchild adoption by same-sex couples (Since 2014)
Joint adoption by same-sex couples (Since 2014)
Lesbians, gays, and bisexuals allowed to serve openly in the military (Since 2011)
Transgender people allowed to serve openly in the military
Conversion therapy banned on minors / (Varies)
Access to IVF for lesbians
Commercial surrogacy for gay male couples / (Known to be performed despite statutory ban)
MSMs allowed to donate blood / (Since 2020; 3-month deferral period)[49]

References
  1. Thousands of people attend Phoenix Pride Parade
  2. "We Look to Our Past For Inspiration".
  3. "A Glimpse Into The Diné Gender System And Two Spirit People". 30 August 2016.
  4. "Two-Spirit and Okiciyap". Daily Kos.
  5. Jorge Rivas (February 23, 2015). "The surprising history of gay marriage in the Navajo nation". Splinter.
  6. "LGBT Navajos Discover Unexpected Champions: Their Grandparents". National Public Radio. January 26, 2019.
  7. "The History of Sodomy Laws in the United States - Arizona". www.glapn.org.
  8. Hay, Harry, with Will Roscoe (ed.) (1996). Radically Gay: Gay Liberation in the Words of its Founder. Boston: Beacon Press. ISBN 0-8070-7080-7
  9. Lee Walzer, Gay Rights on Trial: A Reference Handbook (2002), 82
  10. Westfall, Julie; Queally, James (October 17, 2014). "Arizona's gay marriage ban struck down, AG will not appeal". Los Angeles Times. Retrieved October 17, 2014.
  11. Human Resources Campaign: Arizona Adoption Law, December 7, 2009 Archived March 7, 2012, at the Wayback Machine, accessed April 10, 2011
  12. "Brewer signs Arizona bill on adoption preference". Azcentral.com. Retrieved 2013-11-02.
  13. "Arizona's equality profile". Movement Advancement Project.
  14. "Arizona Supreme Court: Same-sex couples have same parenting rights as opposite-sex couples". AZCentral. September 19, 2017.
  15. "Gestational surrogacy in Arizona". Creative Family Connections.
  16. "Executive order No. 2003-22: confirming equal employment opportunities". Arizona Executive Orders. Arizona Memory Project. Retrieved March 1, 2014.
  17. "An ordinance of the city council of the City of Flagstaff, Arizona, amending Flagstaff City Code Title 14, Human Relations, by adding Chapter 2, Civil Rights". City of Flagstaff. Retrieved May 25, 2013.
  18. Gardiner, Dustin (February 26, 2013). "Phoenix City Council votes to amend discrimination law". The Arizona Republic. Retrieved February 26, 2013.
  19. "Sedona City Council Passes Protections for LGBT People". Human Rights Campaign. Retrieved November 21, 2015.
  20. "Cities and Counties with Non-Discrimination Ordinances that Include Gender Identity". Human Rights Campaign. Retrieved May 25, 2013.
  21. Smith, Dylan (February 28, 2014). "Tempe joins Az cities barring discrimination against gays". Tucson Sentinel. Retrieved March 1, 2014.
  22. "Taking It Easy in Winslow, Arizona, as City Passes Nondiscrimination Ordinance". The National Law Review. November 30, 2018.
  23. Campaign, Human Rights. "MEI 2014: See Your City's Score". Human Rights Campaign.
  24. "GILBERT, ARIZONA 2018 MUNICIPAL EQUALITY INDEX SCORECARD" (PDF).
  25. "GLENDALE, ARIZONA 2018 MUNICIPAL EQUALITY INDEX SCORECARD" (PDF).
  26. "MESA, ARIZONA 2018 MUNICIPAL EQUALITY INDEX SCORECARD" (PDF).
  27. "City Council Report". City of Scottsdale. November 20, 2007. Retrieved March 22, 2012.
  28. "Supreme Court bans LGBT employment discrimination".
  29. Rau, Alia. "Anti-LGBT legislation gets the cold shoulder with the Arizona Legislature. Here's why". azcentral.
  30. "Court applies Masterpiece Cakeshop ruling to uphold Ariz. LGBT ordinance". 7 June 2018.
  31. Human Resources Campaign: Arizona Hate Crimes Law, October 3, 2008 Archived May 1, 2012, at the Wayback Machine, accessed April 10, 2011
  32. Human Resources Campaign: Arizona Birth Certificate Law: Gender Identity Issues, March 27, 2007 Archived March 11, 2012, at the Wayback Machine, accessed April 10, 2011
  33. Bollinger, Alex (April 29, 2019). "Arizona Supreme Court rules judges can order treatment for trans kids if a parent doesn't consent". LGBTQ Nation.
  34. MacDonald-Evoy, Jerod (April 26, 2019). "AZ Supreme Court says family courts can determine care, but only in special situations". AZ Mirror.
  35. Stuart, Calum (April 30, 2019). "Arizona count rules that judges can order specialist treatment for trans kids". Gay Star News.
  38. "Pima County passes conversion therapy ban". KGUN. August 1, 2017. Retrieved August 1, 2017.
  39. "File ID 7772". Pima County, Arizona. Retrieved August 1, 2017.
  40. "15-716 - Instruction on acquired immune deficiency syndrome; department assistance". www.azleg.gov.
  41. "Ducey signs law repealing teaching restriction considered anti-LGBTQ". KTAR.com. 11 April 2019.
  42. "Arizona Governor Signs Repeal of 28-Year-Old 'No Promo Homo' Law Banning Teachers from Promoting a 'Homosexual Lifestyle'". 11 April 2019.
  43. "SB 1346" (PDF).
  44. "Arizona SB1346 | 2019 | Fifty-fourth Legislature 1st Regular". LegiScan.
  45. Press, Associated (14 January 2020). "Arizona Senate Committee Delays Hearing On Sex Ed Ban Before 7th Grade". www.knau.org. Retrieved 2020-02-09.
  46. Public opinion on same-sex marriage by state: Arizona (PRRI)
  47. Public opinion on LGBT nondiscrimination laws by state: Arizona (PRRI)
  48. Public opinion on religiously based refusals to serve gay and lesbian people by state: Arizona (PRRI)
  49. McNamara, Audrey (April 2, 2020). "FDA eases blood donation requirements for gay men amid "urgent" shortage". CBS News.
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