National NOW Times >> Summer, 2001 >> Article
State Assaults on Lesbian and Gay
by Latifa Lyles, Development
While activists push to repeal state sodomy and other
laws that instill homophobia, progress continues at the state level
through litigation as well as legislative action.
On April 20,
2001, in a strongly worded opinion emphasizing law enforcement officials’
duty to lesbian, gay, bisexual, and transgender crime victims, the
Nebraska Supreme Court held a Richardson County Sheriff liable for his
failure to protect Brandon Teena in 1993. Although still biologically a
woman, Teena dressed and identified as a man. After Teena was raped, he
reported the incident and the Sheriff’s Department failed to intervene. He
was later killed by his rapists. Teena’s story was portrayed in the film
"Boys Don’t Cry" and Hillary Swank won an Oscar for her performance as
Teena in the film.
On March 23, 2001, an Arkansas circuit court
judge overturned that state’s ban on consensual sex between adult,
same-sex couples. Seven gay and lesbian plaintiffs sued the state,
charging that the sodomy law violated the state constitution’s equal
protection clause. The overturned law included punishment of up to one
year in jail and a fine of $1,000, and did not apply to non-gay
In Maryland a bill was recently signed into law to add
"sexual orientation" to the state’s existing civil rights law.
Eleven states and the District of Columbia have passed basic civil
rights measures that prohibit discrimination based on sexual orientation.
These include: Minnesota, Nevada, Rhode Island, New Jersey, California,
Massachusetts, Connecticut, Vermont, Wisconsin, Hawaii and New Hampshire.
D.C. and Minnesota laws go further, specifying "gender identity" as a
prohibited ground for discrimination.
Despite these and other
strides, new legislation continues to assault the lesbian, gay, bisexual
and transgender communities. Hundreds of hostile bills have been
introduced this year. And antiquated sodomy laws still plague lesbian,
gay, bisexual, and transgender individuals throughout the United States.
In addition to marking lesbians and gay men as criminals, these laws are
frequently used to deny employment, refuse child custody and visitation
rights, and justify refusal to enact civil rights laws to bar
discrimination based on sexual orientation. Sixteen states have sodomy
laws that apply to both homosexual and heterosexual partners.
Massachusetts currently prohibits “the abominable and detestable crime
against nature,” which is interpreted as anal intercourse, and “unnatural
acts,” which has been applied to both oral and anal sex. Texas is one of
three states, along with Kansas and Oklahoma, that prohibits consensual
sex acts between same-sex partners only.
Two Houston men,
arrested, jailed overnight and convicted for having sex in the privacy of
their home in September 1998, are petitioning the Texas Court of Criminal
Appeals to review its March 2001 decision overturning a trial court's
ruling that the state’s "Homosexual Conduct" law is unconstitutional.
The state legislatures and courts are crucial forums for
activists’ efforts to dissolve harmful laws that discriminate on the basis
of sexual orientation and to win civil rights protection. In the absence
of federal law, organizing must continue state by state to eradicate
homophobia and attain equal rights. Full equality will not be achieved
until all sodomy laws are repealed and all sexual orientation
discrimination is outlawed.