LGBT rights in Arizona

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 and colonization. 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] Spanish missionaries took repeated notes of these traditions, with one Franciscan missionary stating "that these accursed people will disappear with the growth of the missions. The abominable vice will be eliminated to the extent that the Catholic faith and all the other virtues are firmly implanted there, for the glory of God and the benefits of these poor ignorants". Among the Hopi, Christian converts were prohibited from attending the traditional snake dance because "male cross-dressing could be observed". Jonathan Ned Katz notes, "the Christianization of Native Americans and the colonial appropriation of the continent by white, Western 'civilization' included the attempt by the conquerors to eliminate various traditional forms of Indian homosexuality—as part of their attempt to destroy that Native culture which might fuel resistance—a form of cultural genocide involving both Native Americans and gay people". Will Roscoe in his work The Zuni Man-Woman writes that the "prevalence of sodomy" and the tolerance or even respect of transgender people fueled the Spanish explorers' argument for the colonization of native peoples and their lands in the name of Christianity.[7]

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.[8]

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.[9]

The Arizona Equity Act of 2001 repealed the state's sodomy laws and legalized homosexuality.[10]

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.[11]

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.

Arizona permits adoption by individuals. There are no explicit prohibitions on adoption by same-sex couples or on second-parent adoptions.[12] However, state law requires adoption agencies to give primary consideration to adoptive placement with a married couple. 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.[13]

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.[14]

In September 2017, the Arizona Supreme Court ruled unanimously 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).[15] Following some more legal process at the trial court, in October 2020 the Arizona Court of Appeals ruled that birth certificates must accommodate same-sex parents.[16]

Surrogacy, whether gestational or traditional, is prohibited under Arizona law. Despite this, in light of the 1994 court case of Soos v. Superior Court, which held that intended parents can rebut the statutory presumption that the gestational carrier is the legal mother of the child, couples began to petition courts for a pre-birth order, which would declare them the legal parents of the child rather than the surrogate. The contracts remain unenforceable and consequently some attorneys will not prepare surrogacy agreements.[17] Only the biological parents can obtain a pre-birth order, meaning that for same-sex couples the non-biological parent must complete a second-parent adoption to be legally recognized as a parent.

Map of Arizona 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 solely in public employment

  Sexual orientation in public employment

  No anti-discrimination ordinance¹

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. Discrimination against state employees based on their sexual orientation has been illegal since 2003.

Governor Janet Napolitano issued an executive order in 2003 prohibiting discrimination on the basis of sexual orientation against state employees.[18]

Discrimination in public and private employment, housing and public accommodations on the basis of both sexual orientation and gender identity is prohibited in Phoenix,[19] Sedona,[20] Tempe,[21] Tucson,[22] and Winslow.[23] Flagstaff has protections for employment and public accommodations, but not housing.[24] Other cities including Chandler,[25] Gilbert,[26] Glendale,[27] Mesa,[28] and Scottsdale prohibit discrimination on account of sexual orientation and gender identity against city employees.[29] Peoria prohibits discrimination against city employees but on the basis of sexual orientation only.[30]

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.[31] 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:[32]

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'.

Arizona includes sexual orientation as a protected category in its hate crime law.[37] The law provides additional legal penalties for the commission of a crime motivated by the victim's sexual orientation, amongst other categories. 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.

Arizona will issue new birth certificates to post-operative transgender people. The state will alter the gender marker on a birth certificate "for a person who has undergone a sex change operation or has a chromosomal count that establishes the sex of the person as different [than on original certificate]". The Office of Vital Records will issue an amended birth certificate upon receipt of a completed "Birth Certificate Request Form", an "Affidavit to Correct a Birth Certificate" and a notarized letter from a physician confirming the sex operation.[38][39] The state will change the gender marker on a driver's license and state ID card upon receipt of a "signed statement from a licensed physician attesting that the applicant is irrevocably committed to the gender-change process." Changing gender on a driver's license and ID card does not require undergoing sex reassignment surgery.

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.[40][41][42]

A regulation passed in 1982 states that Medicaid cannot cover the costs of sex reassignment surgery. In August 2020, two transgender teenagers, with the help of the National Center for Lesbian Rights and the National Health Law Program (NHeLP), along with co-counsel King & Spalding LLP and Perkins Coie LLP, filed a suit challenging the 1982 regulation as unconstitutional.[43][44]

In November 2020, three families with transgender children filed a lawsuit against the Arizona Department of Health Services in federal court demanding the state agency allow them to change the legal gender on their birth certificate without needing to undergo sex reassignment surgery.[45][46][47]

In August 2017, 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.[48][49]

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.[56] The same poll found that 73% of Arizonans supported an anti-discrimination law covering sexual orientation and gender identity, while 20% were opposed.[57] 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.[58]