| LGBT rights in Massachusetts | |
|---|---|
Massachusetts (US) |
|
| Same-sex sexual activity legal? | Legal since 2002 |
| Recognition of relationships |
Same-sex marriage since 2004 |
| Adoption | Yes |
| Discrimination protections | Yes (both sexual orientation and gender identity or expression) |
The establishment of LGBT rights in the U.S. state of Massachusetts is a recent phenomenon, with most advances in LGBT rights taking place since 1992.
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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."[1] 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.[2]
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 first of these statutes "inapplicable to private, consensual conduct of adults" in Commonwealth v. Balthazar.[3] 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 § 34. It also extended its holding that "consensual conduct in private between adults is not prohibited" to apply to § 35.[4]
Massachusetts authorized same-sex marriages within the state following the Supreme Judicial Court 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 have been unsuccessful.[5]
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.[6]
Since 1989, Massachusetts prohibits discrimination based on sexual orientation in credit, public and private employment, union practices, housing, and public accommodation.[7][8]
From July 1, 2012 Massachusetts prohibits discrimination based on gender identity and expression in credit, public and private employment, union practices and housing - but not public accommodations.[9]
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.[10] The state rescinded those regulations in 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.[11] 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.[12]
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.[13]
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."[14]
Massachusetts added sexual orientation to the categories protected by its 1983 hate crimes legislation in June 1996.[15] 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.”[16]
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.[17]
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.[18]
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."[19]
From July 1, 2012 the words "gender identity and expression" will be added to Massachusetts hate crime legislation under new laws passed and signed[20]
Massachusetts allows a person who has completed sex-reassignment surgery to amend his or her birth certificate.[21]
The Massachusetts hate crimes statute does not extend to violence motivated by gender identity.[22]
The Massachusetts Non-Discrimination Law does not explicitly cover discrimination based on gender identity. State courts and the Commission Against Discrimination have ruled that transgender individuals can seek relief under the categories of sex or disability discrimination.[8]
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 a bill before the legislature that would extend similar protection to all transgender persons in the state.[23] Such legislation has been before the legislature for several years,[24] and has been endorsed unanimously by the Boston City Council.[25] In November 2011 the Transgender Civil Rights And Hate Crimes Bill (without public accommodations included) passed the Massachusetts House on a vote of 95-58 [26] and then the bill passed the Massachusetts Senate the next day by a unanimous voice vote.[27] A week later the bill that passed both houses got signed into law by Massachusetts Governor Deval Patrick and becomes effective on July 1, 2012.[28]
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