LGBT rights in Massachusetts

Lesbian, gay, bisexual, and transgender (LGBT) persons in Massachusetts have the same rights and responsibilities as cisgender heterosexuals.[1] The U.S. state of Massachusetts is one of the most LGBT-friendly states in the country. In 2004, it became the first U.S. state to grant marriage licenses to same-sex couples after the decision in Goodridge v. Department of Public Health, and the sixth jurisdiction worldwide, after the Netherlands, Belgium, Ontario, British Columbia, and Quebec.

LGBT rights in Massachusetts
StatusLegal since 1974 (Commonwealth v. Balthazar)
Gender identityTransgender people may change gender
Discrimination protectionsYes, both sexual orientation and gender identity
Family rights
Recognition of relationshipsSame-sex marriage since 2004
AdoptionYes

Massachusetts is regarded as one of the most advanced U.S. states in regards to LGBT rights legislation. Same-sex sexual activity has been legal since 1974. State law bans discrimination on the basis of sexual orientation and gender identity in employment, housing, public accommodations, credit and union practices. In November 2018, it became the first state in the country to support transgender protections through popular vote. In addition, same-sex couples are allowed to adopt, and transgender people may change their legal gender without undergoing sex reassignment surgery. In April 2019, Massachusetts became the 16th US state to ban conversion therapy on LGBT minors.[2][3]

Massachusetts is home to a vibrant and visible LGBT culture. Boston, the state capital, has been ranked one of the most LGBT-friendly cities in the United States,[4] noted for its LGBT dating scene, events, nightlife, clubs and bars. Several towns located at the tip of Cape Cod are also famous internationally for their high LGBT acceptance and visibility, particularly Provincetown. Northampton, on the other hand, is the town with the most lesbian couples per capita in the entire United States.[5]

History

Early steps

In September 1992, Governor William Weld issued an executive order allowing state employees to register as domestic partners "for purposes of bereavement leave and visitation rights in state prisons and hospitals."[6] That same year, he appointed a Governor's Commission on Gay and Lesbian Youth, which in turn produced a report "Making Schools Safe for Gay and Lesbian Youth" (1993). Its recommendations required schools to create policies to protect gay and lesbian students, create school-based support groups for them, train teachers and staff on gay issues, and incorporate information on gay issues into curriculum and libraries.[7] Governor Mitt Romney threatened to disband the commission as well as another board, the Governor's Task Force on Hate Crimes in 2003, but, instead, decided to limit its activities which prompted the legislature to make the commission independent of the Governor's office.[8][9][10] In 2003 and 2004, Romney had supported gay pride events linked to the commission with official proclamations.[11]

Charlie Baker administration (2015–present)
Main article: Charlie Baker

Massachusetts Governor Charlie Baker supports same-sex marriage, stating after the U.S. Supreme Court decided the Obergefell v. Hodges case in June 2015, "I'm pleased the Commonwealth has already recognized same-sex marriages in our state, and with today's Supreme Court decision every American citizen across the nation will have equal protection under the law and the right to marry the person they choose."[12] Despite previously opposing legislation that would expand state anti-discrimination laws to include protections for transgender individuals in public restrooms,[13][14] Baker signed into law a compromise bill enacting such protections on July 8, 2016,[15] and has expressed opposition to a North Carolina law that eliminated such protections.[16]

In February 2017, Baker criticized the Trump Administration's decision to rescind federal directives to public school districts allowing transgender public school students to use the bathroom of their preference,[17] and the following month, Baker stated that he would not attend the South Boston Saint Patrick's Day parade that month if a gay veteran's group was not allowed to march in the parade.[18] In October 2018, Baker gave the keynote speech at a fundraiser for the Log Cabin Republicans in Washington, D.C.,[19] and in the same month, Baker made a personal donation to the campaign for the 2018 ballot initiative to uphold the transgender protections law he signed in July 2016.[20] In April 2019, Baker signed into law a bill banning conversion therapy for LGBT minors.[21]

Legality of same-sex sexual activity

Massachusetts does not restrict private sexual behavior between consenting adults. It has two statutes that implicate homosexual activity: §34 prohibits the "abominable and detestable crime against nature" and §35 prohibits "any unnatural and lascivious act with another person." In 1974, the Massachusetts Supreme Judicial Court found the second of these statutes "inapplicable to private, consensual conduct of adults" in Commonwealth v. Balthazar.[22] In 2001, Gay & Lesbian Advocates & Defenders (GLAD) sued the Massachusetts Attorney General and two District Attorneys challenging both statutes. The Supreme Judicial Court dismissed the case on February 21, 2002, because the plaintiffs did not present an instance of prosecution and therefore failed to meet the Court's "actual controversy requirement." The Court noted that the defendants' stipulation "that their offices will not prosecute anyone under the challenged laws absent probable cause to believe that the prohibited conduct occurred either in public or without consent" satisfied the Court's holding in Commonwealth v. Balthazar with respect to §35. It also extended its holding that "consensual conduct in private between adults is not prohibited" to apply to §34.[23]

Massachusetts has still not repealed its sodomy law.[24][25] The Democratic Party controlled Massachusetts General Court has voted down bills in committee for years, to repeal and abolish the archaic anti-gay sodomy laws within sections of both §34 and §35.[26][27]

During the 2018 session of the Massachusetts General Court, outdated laws on abortion, adultery and fornication were repealed,[28][29] but not the archaic laws on sodomy, anal sex, and oral sex still listed explicitly within sections 34 and 35.[30]

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

Massachusetts authorized same-sex marriages within the state following the Supreme Judicial Court (SJC) ruling on November 18, 2003 in Goodridge v. Department of Public Health that it was unconstitutional under the state Constitution for state agencies to restrict marriage to heterosexual couples. The Court gave the state Legislature 180 days to enact laws pursuant to the judgment. In the absence of legislative action, Governor Mitt Romney ordered town clerks to begin issuing marriage certificates to same-sex couples beginning May 17, 2004. Attempts to enact an amendment to the state Constitution to prohibit same-sex marriage, the last in 2007, have been unsuccessful.[31]

A 1913 state law that forbade non-residents from marrying in Massachusetts if their marriage would be void in their home state was repealed on July 31, 2008.[32]

On July 26, 2012, the SJC ruled in Elia-Warnken v. Elia that the state recognizes a civil union established in a different jurisdiction as the equivalent of marriage. It termed a Massachusetts marriage entered into by a man who was already a party to a Vermont civil union with a third party "polygamy" and therefore void.[33] On September 28, 2012, the SJC ruled in that "Because the parties to California [registered domestic partnerships] have rights and responsibilities identical to those of marriage", it is proper to treat such relationships "as equivalent to marriage" in Massachusetts.[34]

Adoption and parenting

In May 1985, in response to a public controversy about a same-sex couple that was acting as foster parents, Massachusetts issued regulations designed to prevent such couples from serving as foster parents.[35][36] The state rescinded those regulations in April 1990 as part of an out-of-court settlement of a suit brought by Gay & Lesbian Advocates & Defenders (GLAD) and the American Civil Liberties Union (ACLU), following a five-year campaign by an ad hoc group formed around the issue, Foster Equality.[37][38] The state has allowed second-parent adoption by a parent of the same sex as the existing parent since a court decision, In re Adoption of Tammy, in 1993.[39][40] In July 1999, the same court awarded visitation rights to each of two mothers after their separation.[41]

In 2004, following the legalization of same-sex marriage in Massachusetts, Governor Mitt Romney prevented the state's Registry of Vital Records from revising its birth certificate forms to allow for options other than one mother and one father, instead requiring hand-written changes to the documents only after receiving approval from the Governor's legal counsel. The forms were changed when Governor Deval Patrick took office in 2007.[42]

In March 2006, Catholic Charities of Boston announced it would no longer provide adoption services because it could not comply with Massachusetts law prohibiting discrimination against homosexuals.[43]

In February 2011, Massachusetts Health Commissioner John Auerbach announced plans by the end of March to standardize birth certificates, formerly designed by each city or town, by providing hospitals with electronic forms with fields labeled "mother/parent" and "father/parent". He called the system "more sensitive to the circumstances of the family and to the children."[44]

Discrimination protections

Since 1989, Massachusetts has prohibited discrimination based on sexual orientation in credit, public and private employment, union practices, housing, and public accommodation.[45] It was the second state to add sexual orientation to its anti-discrimination statute, following Wisconsin in 1982.[46]

On February 17, 2011, Governor Deval Patrick issued an executive order banning discrimination on the part of the state or its contractors against transgender employees of the state Government. He reiterated his support for legislation to extend similar protection to all transgender persons in the state.[47] Massachusetts enacted such legislation prohibiting discrimination based on gender identity in credit, public and private employment, union practices and housing—but not public accommodations—on November 23, 2011, effective on July 1, 2012.[48][49] By the end of 2015, a bill was pending to prohibit discrimination based on gender identity in public accommodations, but its future was still uncertain.[50] Finally, on May 12, 2016, the state Senate voted 33–4 to approve the bill.[51] The Massachusetts House of Representatives on July 7, 2016 passed a bill by a vote of 117–36 to include gender identity to the public accommodations law. The bill was signed into law the next day, by Massachusetts Republican Governor Charlie Baker, and scheduled to take effect on October 1, 2016.[52][53] In October 2016, however, anti-transgender activists submitted the minimum number of signatures necessary, to the Secretary of the Commonwealth, to put the law up for repeal on a statewide ballot measure. Voters decided on November 6, 2018 to retain the law, with 67.8% in favor of upholding law, and 32.2% opposed. The Massachusetts Gender Identity Anti-Discrimination Initiative was the first-ever statewide ballot question of its kind in the United States.

In June 2012, on instructions from Worcester's Roman Catholic Bishop Robert McManus, diocesan officials declined to sell a property owned by the diocese to a same-sex couple and in July lied about what happened when questioned about the sale.[54][55] In September, the couple filed suit against the bishop and other parties to the negotiations.[56]

On January 29, 2014, Matthew Barrett represented by GLAD filed a complaint with the Massachusetts Commission Against Discrimination against Fontbonne Academy, a Catholic secondary school, because in July 2013 the school had withdrawn an offer of employment as food service manager when officials learned he was in a same-sex marriage.[57] The case moved to Massachusetts Superior Court, and on December 16, 2015, Judge Douglas H. Wilkins ruled in Barrett v. Fontbonne Academy that the Academy had violated the state's laws against discrimination on the basis of sexual orientation and gender.[58]

Anti-bullying legislation was enacted in May 2010. It "requires schools to adopt clear procedures for reporting and investigating cases of bullying, as well as methods for preventing retaliation against those who report problems."[59]

Hate crime law
Main articles: Hate crime laws in the United States and Violence against LGBT people

Massachusetts added sexual orientation to the categories protected by its 1983 hate crime legislation in June 1996.[60] The state defines a hate crime as "any criminal act coupled with overt actions motivated by bigotry and bias, including, but not limited to, a threatened, attempted or completed overt act motivated at least in part by racial, religious, ethnic, handicap, gender or sexual orientation prejudice, or which otherwise deprives another person of his constitutional rights by threats, intimidation or coercion, or which seek to interfere with or disrupt a person's exercise of constitutional rights through harassment or intimidation."[61]

Massachusetts adopted the Hate Crimes Reporting Act in 1990. The legislation created a Crime Reporting Unit to collect hate crime incident reports from law enforcement and required the unit to summarize and report on the information. Regulations establish criteria for determining whether a crime is a hate crime, provide a means for advocacy organizations to report hate incidents, specify the content of crime and incident reports, and specify the content of the annual report. The crime report unit of the State Police must also collect, summarize and report hate crime data to the state Attorney General and to several legislative committees. The reports are available on public record.[62]

In 1991, the Governor created the Task Force on Hate Crimes. The task force's principal tasks are (1) developing regulations to implement the Hate Crimes Reporting Act, (2) coordinating training efforts, (3) increasing submission of hate crime data, and (4) working with community organizations and victims' groups. Initiatives for 2000 include pilot programs in high schools, youth diversion programs, a new correctional diversity awareness program, outreach coordination, a victimization survey in schools, public awareness, creating civil rights investigative teams, encouragement of reporting by law enforcement, and continued training.[63]

The term "gender identity" was added to the state's hate crime statute, effective July 1, 2012.[49]

Gender identity and expression

Massachusetts allows transgender individuals to amend their birth certificate to reflect their gender identity. Sex reassignment surgery is not a requirement.[64]

In both 2018 and 2019, the Massachusetts Senate passed a bill by a near-unanimous vote of 36–1 to add "gender X" on drivers licenses. The bill, however, stalled and went nowhere within the Massachusetts House of Representatives before the Legislature adjourned.[65][66]

Non-binary driver licences

In November 2019, it was announced that both Massachusetts I.D.s and driver licences had upgraded software by the Massachusetts RMV - to include the non-binary option of "gender X" (alongside male and female on forms and applications) effective immediately.[67][68][69][70]

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

2018

In June 2018, the Massachusetts House of Representatives passed a bill by a vote of 137–14 to legally ban conversion therapy practices on minors. The bill, however, failed to pass the Massachusetts Senate before the it adjourned sine die.[71][72][73][74]

2019

On March 13, 2019, the Massachusetts House of Representatives passed H140, which would ban conversion therapy on minors, by a vote of 147–8.[75][76] The bill was approved by the state Senate with amendments by a vote of 34–0 on March 28, 2019. An engrossed bill was enacted on April 4, 2019, and awaited consideration by Massachusetts Governor Charlie Baker, who indicated he was "inclined to support" such legislation.[77] The Governor signed the bill into law on April 8, 2019 and it went into effect immediately.[2][3]

Public opinion and attitudes
Provincetown LGBT Carnival in 2012
Further information: Same-sex marriage in Massachusetts § Public opinion

Societal attitudes toward the LGBT community have evolved significantly in Massachusetts in the past decades, going from public hostility and antipathy to increasing acceptance and tolerance. Massachusetts is noted for its early levels of support for same-sex marriage. As early as 2003, a KRC Communications Research opinion poll found majority support for the legalization of same-sex marriage in the state, though support decreased in 2004, the year Massachusetts legalized same-sex marriage was the same year that the support decreased in, 2004. From 2004 onwards, opinion polls have recorded a marked increase in support. Support stabilized around 60% in the late 2000s, until reaching 73% in 2015, the year same-sex marriage was legalized nationwide through Obergefell v. Hodges.

According to a 2017 Public Religion Research Institute (PRRI), 80% of Massachusetts residents supported same-sex marriage, whereas 13% were opposed and 7% were undecided.[78] This was the highest support recorded in the United States, tied with Vermont. The PRRI poll also showed that support for anti-discrimination laws covering sexual orientation and gender identity enjoyed wide popular support. Likewise, 80% were in favor of such laws, while 13% were opposed. 70% also expressed opposition to religious-based refusals to serve LGBT people. 23% expressed support.[78]

Summary table
Same-sex sexual activity legal (Since 1974)
Equal age of consent (16)
Anti-discrimination laws in all areas (Sexual orientation since 1989 and gender identity since 2016)
Same-sex marriages (Since 2004; first in the United States)
Recognition of same-sex couples
Stepchild adoption by same-sex couples
Joint adoption by same-sex couples
Lesbians, gays and bisexuals allowed to serve openly in the military (Since 2011)
Transgender people allowed to serve openly in the military / (Most Transgender personnel allowed to serve openly since 2021)[79]
Transvestites allowed to serve openly in the military [80]
Intersex people allowed to serve openly in the military / (Current DoD policy bans "Hermaphrodites" from serving or enlisting in the military)[81]
Right to change legal gender without surgery
Access to IVF for lesbians
Third gender option / (only on I.D.s and driver licences, not birth certificates since 2019)[67]
Conversion therapy banned on minors [82][2][3]
Surrogacy access for gay male couples
MSMs allowed to donate blood / (3 month deferral - federal policy)

See also

References
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