LGBT rights in Indiana

Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of Indiana may face some legal challenges not experienced by non-LGBT residents. Same-sex marriage has been legal in Indiana since October 6, 2014, when the U.S. Supreme Court refused to consider an appeal in the case of Baskin v. Bogan.

Map of USA IN.svg
StatusLegal since 1977
Gender identityState does not require surgery to alter sex
Discrimination protectionsSexual orientation protection in employment (per court ruling). Sexual orientation and gender identity protections in state employment
Family rights
Recognition of relationshipsSame-sex marriage legal since 2014
AdoptionYes

A landmark April 2017 court ruling held that discrimination based on sexual orientation is tantamount to discrimination on account of "sex", as defined by the Civil Rights Act of 1964. The ruling, issued by the Seventh Circuit Court of Appeals, establishes sexual orientation as a protected characteristic in the workplace, forbidding unfair discrimination. Nevertheless, state statutes have not yet been amended to include sexual orientation and gender identity among its non-discrimination grounds.

Legality of same-sex sexual activityEdit

In 1795, Indiana as part of the Northwest Territory received the English "buggery" law, which punished male sodomy with death. In 1807, the Indiana Territory enacted a criminal code which included a sodomy provision, eliminating the gender-specifics (meaning it would be applicable to both heterosexual and homosexual conduct), reducing the penalty to one to five years' imprisonment, a fine of 100 to 500 dollars, up to 500 lashes and a permanent loss of civil rights. Sodomy was briefly legal between the years 1852 and 1881, as a new criminal code was passed without any mention to sodomy. In 1881, the state passed a statute outlawing anal intercourse, fellatio (oral sex) as well as masturbation under the age of 21 (which was labelled "self-pollution") for both heterosexuals and homosexuals. Penalty was set at "not more than fourteen years nor less than two years". In the 1923 case of Young v. State, the Indiana Supreme Court unanimously ruled that cunnilingus was also criminal, and in 1939, in Connell v. State, rejected contentions had the statute applied only to homosexual sexual activity.[1]

In 1949, the state passed a psychopathic offender law, under which any person above 16 years of age suffering from a "mental disorder" "coupled with criminal propensities to the commission of sex offenses" would be labelled a "criminal sexual psychopathic person". Those convicted of sodomy would not be able to leave correctional institutions until their "full recovery of criminal psychopathy". A law review article in 1947 showed 160 commitments under the law, of which 60 (38%) were for sodomy and none of the offenders had been a woman. A majority of these commitments were for heterosexual conduct. In 1959, an amendment to the law meant that those refusing to cooperate with examining psychiatrists could be held in contempt of court. In 20 years of operation, only 10 "consensual adult homosexuals" were committed under the law. The law was upheld by the Indiana Supreme Court in 1968 in State ex rel. Haskett v. Marion County Criminal Court, Division One et al. In 1971, the Indiana General Assembly amended the law, removing sodomy from the list of triggering offenses, if consensual and committed with an adult person.[1]

In 1967, in a divided 3-2 ruling, the Indiana Supreme Court upheld as constitutionally sufficient an indictment charging the "abominable and detestable crime against nature". Justice Amos W. Jackson dissented, writing that the

very language of the statute purporting to define the offense of sodomy, is so indefinite and uncertain that its unconstitutionality follows as certainly as night follows day.

Jackson further wrote that he

hoped that the incoming legislature will either clarify or abolish this anarchism reminiscent of the heyday of the witch hunts of early colonial times. In today's space age and sophisticated society, it seems that the statute should spell out in language understandable by the person of average scholastic attainment and intelligence the specific nature of the crime with which he is charged and if that cannot be done then it should not be denominated a crime.

In 1968, in Cotner v. Henry, the Seventh Circuit Court of Appeals ruled 2-1 that married couples could not be prosecuted under the sodomy statute. In Dickson v. State (1971), the Indiana Supreme Court upheld the constitutionality of the sodomy law, in a divided 3-2 vote.[1] Dissenting, Justice Roger DeBruler wrote that the

moral preferences of the majority may not be imposed on everyone else unless there exists some harm to other persons. Sexual acts between consenting adults in private do not harm anyone else and should be free from state regulation.

Indiana decriminalized same-sex sexual activity in 1976, effective on July 1, 1977.[2] The age of consent is 16, regardless of gender and sexual orientation.[3] An attempt to reinstate consensual sodomy as a felony was rejected by a House committee in 1977, by a 6-4 vote.[1]

Recognition of same-sex relationshipsEdit

Same-sex marriages are recognized and performed in Indiana under a federal court decision in October 2014.[4]

Annual attempts to adopt a constitutional amendment defining marriage as the union of a man and a woman have failed since 2004. Indiana requires that two separately elected legislatures approve an amendment for it to be put to a popular vote. The proposed amendment passed both chambers in 2005,[5] and then again in 2011.[6] On June 25, 2014, U. S. District Court Judge Young declared Indiana's same-sex marriage ban to be unconstitutional, and same-sex couples immediately began to secure marriage licenses.[7] However, the ruling was appealed. On October 6, 2014, the U.S. Supreme Court refused to hear the appeal, effectively legalizing same-sex marriage in Indiana.[8]

Domestic partnershipsEdit

 
Map of Indiana counties and cities that offer domestic partner benefits either county-wide or in particular cities.
  City offers domestic partner benefits
  County-wide partner benefits through domestic partnership
  County or city does not offer domestic partner benefits

There is no recognition of domestic partnerships at the state level in Indiana. Three cities have passed such schemes.

  • Bloomington

In 1997, Bloomington established domestic partnerships for unmarried city employees.[9]

  • Carmel

Carmel has established domestic partnerships for unmarried city employees.[9]

  • Indianapolis

On August 13, 2012, the Indianapolis City-County Council, in a 20-8 bipartisan vote, established domestic partnerships for all married and unmarried employees in the city and county. On August 23, 2012, Mayor Greg Ballard signed the ordinance into law which went into effect on January 1, 2013.[9][10]

Discrimination protectionsEdit

 
Map of Indiana counties and 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 with anti–employment discrimination ordinance and gender identity solely in public employment
  Sexual orientation and gender identity solely in state employment

Governor Joe Kernan issued an executive order in 2004 protecting state employees from discrimination based on sexual orientation as well as gender identity and expression. In 2005, Governor Mitch Daniels added the terms "sexual orientation" and "gender identity" to the list of protected categories in state employment covered by the state's Equal Employment Opportunity policy.[11]

In 2013, Kim Hively filed a lawsuit against the Ivy Tech Community College of Indiana in South Bend, arguing that she was denied promotions and let go from her job because of her sexual orientation. The United States Court of Appeals for the Seventh Circuit heard oral arguments in the case, known as Hively v. Ivy Tech Community College, in November 2016 with discussion focusing on the meaning of the word "sex" in Title VII of the Civil Rights Act, which bans workplace discrimination based on race, religion, national origin or sex. On April 4, 2017, the Court of Appeals ruled in an 8-3 vote that the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sexual orientation via the category of "sex". Ivy Tech subsequently stated they would not appeal the ruling to the Supreme Court.[12] Human Rights Campaign hailed the ruling, saying: "Today's ruling is a monumental victory for fairness in the workplace, and for the dignity of lesbian, gay and bisexual Americans who may live in fear of losing their job based on whom they love."[13] The court decision establishes that workplace discrimination on account of sexual orientation (such as in hiring or promotions, etc.) violates federal civil rights law, and is therefore prohibited. The ruling is only binding to the states of Illinois, Indiana and Wisconsin.[14]

The counties of Marion,[15] Monroe,[15] Tippecanoe,[16] and Vanderburgh,[17] along with the cities and towns of Anderson,[18] Bloomington,[15] Carmel,[19] Columbus,[20] Crawfordsville,[21] Evansville,[15] Hammond,[22] Indianapolis,[15] Kokomo,[23] Lafayette,[24] Michigan City,[25] Muncie,[20] Munster,[26] New Albany,[27] South Bend,[15] Terre Haute,[20] Valparaiso,[28] West Lafayette,[29] and Zionsville,[20] have ordinances prohibiting employment discrimination on the basis of sexual orientation and gender identity.

Lake County,[30] Fort Wayne,[31] and Whitestown[20] have ordinances prohibiting employment discrimination on the basis of sexual orientation only.

Religious objectionsEdit

On March 26, 2015, Governor Mike Pence signed the Religious Freedom Restoration Act (RFRA), also known as the Indiana "religious objections" bill, into law.[32] The law's signing was met with widespread criticism by such organizations as the NCAA, Apple CEO Tim Cook, the gamer convention Gen Con, and the Disciples of Christ. Technology company Salesforce.com said it would halt its plans to expand in the state.[33][34] Thousands protested against the policy.[35][36]

On April 2, 2015, Governor Pence signed a measure into law which was intended to be a clarification of the newly enacted legislation. Specifically, the new language says the RFRA does not authorize a provider — including businesses or individuals — to refuse to offer or provide services, facilities, goods, employment, housing or public accommodation to any member of the public based on sexual orientation or gender identity, in addition to race, color, religion, ancestry, age, national origin, disability, sex or military service.[37]

Adoption and parentingEdit

Indiana statutes permit single LGBT persons to adopt. The state Court of Appeals ruled in 2006 that unmarried couples, including same-sex couples, may adopt as well. Some local courts have also supported the right of a same-sex partner to adopt his or her same-sex partner's biological or adopted child.[38]

In 2005, the Indiana Court of Appeals unanimously ruled that lesbian partners who agree to conceive a child through artificial insemination are both the legal parents of any children born to them.[39]

Birth certificatesEdit

On June 30, 2016, a federal judge ruled in Henderson v. Box that Indiana must allow same-sex couples to list both their names on children's birth certificates. The ruling was a result of a federal lawsuit filed by eight same-sex couples in the state who were unable to list both parents' names on their children's birth certificates because the forms only allowed a mother and a father to be listed. When an opposite-sex couple had a child, the state granted a "presumption of parenthood" to the father and listed him on the birth certificate. On the other hand, when a same-sex couple had a child, the state denied that presumption and forced the second partner to undergo an adoption, a "long, arduous and expensive" process.[40][41] In January 2017, Attorney General Curtis Hill appealed the ruling to the U.S. Court of Appeals for the Seventh Circuit,[42][43] which unanimously upheld it on January 17, 2020.[44][45]

Gender identity and expressionEdit

 
The 2009 edition of Indy Pride, Indiana's largest LGBT event, held annually in Indianapolis.

Transgender persons in Indiana may change their legal gender following a court order changing both their name and gender marker. Sex reassignment surgery is not required.[46]

On January 12, 2017, Representative Bruce Borders introduced a bill in the Indiana House of Representatives that would have prevented transgender people from changing their legal gender on their birth certificates.[47] Freedom Indiana stated the bill denied "the very existence of transgender people, the identity they live as and the person they have always known themselves to be."[48] One day later, Representative Cindy Kirchhofer, chair of the House Public Health Committee, denied the bill a hearing, effectively killing it.[49]

In March 2019, the Indiana Bureau of Motor Vehicles began offering a "gender X" option on driver's licenses. To request the "X" designation, applicants will need to present a certified, amended birth certificate that attests to the gender change or a signed, dated physician's statement confirming a permanent gender change.[50]

Hate crime lawEdit

Previously, Indiana collected data on "bias crimes", which had included sexual orientation bias since 2003, but did not criminalize them as hate crimes nor alter proposed sentencing requirements due to sexual orientation bias.[51][52] Such hate crimes, however, are banned federally under the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act.

In April 2019, the Indiana General Assembly passed a bill with various controversial and contentious amendments on hate crimes. Unlike other hate crime laws in the United States, Indiana's law does not list specific categories, instead "[making] it an aggravating circumstance that a crime was committed with the intent to harm or intimidate an individual or a group of individuals because of certain perceived or actual characteristics". Governor Eric Holcomb signed the bill into law on April 3.[53][54] The lact of a specific list of categories drew criticism and claims that it violates the vagueness doctrine. As a result of the law, judges may consider a stricter sentence for someone who committed a crime based on the victim's sexual orientation or gender identity.[55]

Public opinionEdit

A 2017 Public Religion Research Institute (PRRI) opinion poll found that 58% of Indiana residents supported same-sex marriage, while 34% opposed it and 9% were unsure.[56]

The same poll found that 66% of Indiana residents supported an anti-discrimination law covering sexual orientation and gender identity. 25% were opposed.[57] Furthermore, 54% were against allowing public businesses to refuse to serve LGBT people due to religious beliefs, while 37% supported allowing such religiously-based refusals.[58]

Public opinion for LGBT anti-discrimination laws in Indiana
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 ? 65% 29% 6%
Public Religion Research Institute April 5-December 23, 2017 1,531 ? 66% 25% 9%
Public Religion Research Institute April 29, 2015-January 7, 2016 1,938 ? 70% 24% 6%

Summary tableEdit

Same-sex sexual activity legal   (Since 1977)
Equal age of consent  
Anti-discrimination laws in employment  /  (Since 2017, sexual orientation only)
Anti-discrimination laws in the provision of goods and services  /  (Varies by city and county)
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech)  /  (Varies by city and county)
Hate crime law includes sexual orientation  
Same-sex marriages   (Since 2014)
Stepchild adoption by same-sex couples   (Since 2006)
Joint adoption by same-sex couples   (Since 2006)
Gays, lesbians and bisexuals allowed to serve openly in the military   (Since 2011)
Transgender people allowed to serve openly in the military  
Right to change legal gender  
Third gender option   (Since 2019)[50]
Conversion therapy banned for minors  
Access to IVF for lesbians   (Since 2005)
Commercial surrogacy for gay male couples  
Men who have sex with men allowed to donate blood  /  (Since 2015; one year deferral period)

See alsoEdit

LGBT rights in the United States

ReferencesEdit

  1. ^ a b c d Painter, George. "The History of Sodomy Laws in the United States: Indiana". The Sensibilities of Our Forefathers. Gay & Lesbian Archives of the Pacific Northwest.
  2. ^ "Indiana Sodomy Law". Archived from the original on May 1, 2012. Retrieved February 2, 2012.
  3. ^ Mince-Didier, Ave. "Indiana Statutory Rape Laws". www.criminaldefenselawyer.com.
  4. ^ "Supreme Court rejects gay marriage appeals from Indiana". WTHR 13 Indianapolis. Retrieved October 6, 2014.
  5. ^ "Indiana State Senate to take action on marriage amendment", January 15, 2010, accessed April 9, 2011; WISHtv: Jim Shella, "Gay marriage ban goes to Indiana House once again", January 28, 2010 Archived August 6, 2013, at the Wayback Machine, accessed April 9, 2011
  6. ^ Allen, Kevin (March 29, 2011). "Indiana Senate OKs amendment to ban gay marriages". WSBT. Retrieved August 20, 2013.
  7. ^ Young, Richard L. (June 25, 2014). "Entry on Cross-Motions for Summary Judgment ... three cases, Baskin v. Bogan, Fujii v. Pence, and Lee v. Pence". U.S.D.C. S.D. Ind. Retrieved June 25, 2014.
  8. ^ Liptak, Adam (October 6, 2014). "Supreme Court Delivers Tacit Win to Gay Marriage" – via NYTimes.com.
  9. ^ a b c "Indy passes benefits for domestic partners". IDS. Archived from the original on December 12, 2013. Retrieved December 10, 2013.
  10. ^ "Indianapolis Mayor Greg Ballard OKs domestic partner benefits". Indy Star. Retrieved February 21, 2014.
  11. ^ Patterson, James (August 5, 2005). "'Sexual orientation' policy remains sore spot for Ind. governor". Baptist Press. Retrieved April 9, 2011.
  12. ^ Briscoe, Tony (April 4, 2017). "Court: Civil Rights Act covers LGBT workplace bias". Chicago Tribune.
  13. ^ Ruling Affirms Civil Rights Laws Protect Employees from Discrimination Based on Sexual Orientation Human Rights Campaign
  14. ^ "Hively v. Ivy Tech Community College". Lambda Legal.
  15. ^ a b c d e f "Cities and Counties with Non-Discrimination Ordinances that Include Gender Identity". Human Rights Campaign. Retrieved May 25, 2013.
  16. ^ "Tippecanoe County Commissioners add gender identity to ordinance". Archived from the original on September 20, 2016. Retrieved November 20, 2016.
  17. ^ "Vanderburgh County expands sexual orientation protections".
  18. ^ Anderson joins Indiana cities protecting LGBT rights
  19. ^ Carmel narrowly passes LGBT protections
  20. ^ a b c d e How local LGBT anti-discrimination laws vary in Indiana
  21. ^ "Indiana's Equality Profile". Movement Advancement Project.
  22. ^ "Hammond Passes Non-discrimination Ordinance Protecting LGBT Hoosiers | Freedom Indiana".
  23. ^ Runevitch, Jennie. "Kokomo mayor signs LGBT protections ordinance, 5-4". www.wthr.com. Retrieved April 9, 2016.
  24. ^ Ervin, Jeremy (September 7, 2016). "Lafayette adds gender identity protection". Journal and Courier.
  25. ^ "Michigan City, Indiana - Code of Ordinances". Municipal Code Corporation. Retrieved November 10, 2016. Chapter 66: Human Relations
  26. ^ Correspondent, Mary Wilds. "Munster's human rights ordinance adopted". nwitimes.com.
  27. ^ Schneider, Grace (August 22, 2012). "New Albany anti-discrimination law draws raves from Kentucky". The Courier-Journal. Retrieved January 3, 2013. New Albany's new law bans discrimination in employment, education, housing and public accommodations based on an individual's actual or perceived [...] sexual orientation, gender identity
  28. ^ Press, Associated. "Valparaiso Approves LGBT Non-Discrimination Ordinance".
  29. ^ "West Lafayette Human Relations Commission" (PDF). City of West Lafayette. Retrieved April 13, 2012.
  30. ^ "American Legal Publishing - Online Library". library.amlegal.com.
  31. ^ "Sexual Orientation and Gender Identity Now Protected in Marion County" (PDF). Hall, Render, Killian, Heath & Lyman. February 9, 2006. Archived from the original (PDF) on February 26, 2014. Retrieved January 2, 2013.
  32. ^ "Indiana Gov. Pence defends religious objections law: 'This bill is not about discrimination'". The Chicago Tribune. Retrieved March 26, 2015.
  33. ^ "NCAA 'concerned' over Indiana law that allows biz to reject gays". CNN. March 26, 2015. Retrieved March 26, 2015.
  34. ^ Tom Davies (March 27, 2015). "Indiana officials look to stem religious objections fallout". Associated Press.
  35. ^ "Thousands march in Indiana to protest law seen targeting gays". Reuters. March 29, 2015.
  36. ^ "Hundreds rally against Indiana law, say it's discriminatory". Associated Press. March 28, 2015.
  37. ^ "Gov. Mike Pence signs RFRA fix". IndyStar. April 2, 2015.
  38. ^ "Indiana Adoption Law". Archived from the original on March 7, 2012. Retrieved February 2, 2012.
  39. ^ "Indiana legislature rules in favor of lesbian couples using donor insemination".
  40. ^ Same-sex Indiana couple celebrates birth certificate win
  41. ^ Same-sex couples win birth certificate lawsuit
  42. ^ Wang, Stephanie (January 31, 2017). "State appeals ruling on parental rights for same-sex couples". Indy Star.
  43. ^ "Same-sex birth certificate case stalls at 7th Circuit, putting families in limbo". The Indiana Lawyer. April 4, 2019.
  44. ^ "After 32 Month Delay, 7th Circuit Affirms Equal Rights for Same-Sex Parents". Slate. January 17, 2020.
  45. ^ "Henderson v. Box, No. 17-1141 (7th Cir. 2020)". law.justia.com. January 17, 2020.
  46. ^ "Changing Name and Gender Markers on Legal Documents". February 25, 2015.
  47. ^ Bill Would Stop Trans People from Changing Sex on Birth Certificates LawNewz
  48. ^ Republican quashes anti-transgender bill The Indianapolis Star
  49. ^ Republican Lawmaker Makes Surprise Showing Of LGBT Support, Blocks Anti-Trans Bill NewNextNow
  50. ^ a b "Indiana driver's licenses now offer 'X' gender option for non-binary Hoosiers". nwi.com. March 11, 2019.
  51. ^ "A Guide to State Level Advocacy Following Enactment of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act" (PDF). Human Rights Campaign. Human Rights Campaign. Retrieved October 12, 2014.
  52. ^ "Indiana Code 10-13-3 - Criminal History Information". Indiana General Assembly. Retrieved October 12, 2014.
  53. ^ Bell, Brianna (April 3, 2019). "Indiana hate crimes bill signed into law". Jurist.
  54. ^ "Gov. Holcomb signs hate crimes bill without specific gender protections into law". Fox59. April 2, 2019.
  55. ^ "Former IN Supreme Court justice says new hate crimes law protects gender, gender identity". WTHR. April 3, 2019.
  56. ^ Public opinion on same-sex marriage by state: Indiana, PRRI – American Values Atlas
  57. ^ Public opinion on LGBT nondiscrimination laws by state: Indiana, PRRI – American Values Atlas
  58. ^ Public opinion on religiously based refusals to serve gay and lesbian people by state: Indiana, PRRI – American Values Atlas