LGBT rights in Ohio

Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of Ohio may face some legal challenges not experienced by non-LGBT residents. Same-sex sexual activity is legal in Ohio, and same-sex marriage has been legally recognized since June 2015 as a result of Obergefell v. Hodges.[2] Ohio statutes do not address discrimination on account of sexual orientation and gender identity; however, the U.S. Supreme Court's ruling in Bostock v. Clayton County established that employment discrimination against LGBT people is illegal. In addition, a number of Ohio cities (including Columbus, Cincinnati, Cleveland, Dayton and Toledo) have passed anti-discrimination ordinances providing protections in housing and public accommodations. Conversion therapy is also banned in a number of cities. In December 2020, a federal judge invalidated an unconstitutional law banning sex changes on an individual's birth certificate within Ohio.[1]

LGBT rights in Ohio
Ohio (USA)
Status	Legal since 1972
Gender identity	State does since December 2020, allow change of sex on birth certificates for transgender people[1]
Discrimination protections	Protections in employment; several municipalities have passed further protections
Family rights
Recognition of relationships	Same-sex marriage since 2015
Adoption	Same-sex couples allowed to adopt[2]

Recent opinion polls have shown that LGBT rights enjoy popular support in the state. A 2016 Public Religion Research Institute survey showed that 61% of Ohio residents supported same-sex marriage. Another survey by the same pollster in 2019 showed that 71% of respondents favored non-discrimination laws protecting LGBT people.[3]

Legality of same-sex sexual activity

As part of the Northwest Territory, Ohio passed the "buggery" law, which provided the death sentence for homosexual sexual activity. In 1804, shortly after statehood, the law was repealed and sodomy was legalized. Despite several court decisions and newspaper articles acknowledging sodomy as legal, the Ohio General Assembly made no effort to overturn these decisions or enact a new law over the following decades.[4]

Ohio adopted its first sodomy law in 1885 and later revised it to include fellatio (oral sex) in 1889. It applied to private, consensual activity as well. In 1886, the Supreme Court of Ohio ruled in Foster et al v. State that sodomy, or "copulation against nature", required the presence of a male, meaning that lesbian sexual activity was exempt from prosecution and thus legal, whereas homosexual and heterosexual sodomy were both punished by up to 20 years' imprisonment. A 1906 text on state law stated that sodomy could be committed "between two human beings, as between two men, a man and a woman, a man and a boy, a man and a girl, two boys or a boy and a girl where of that age when capable of the crime". Over the following years, numerous court cases dealt with the issue of sodomy, including one in 1915, where a man was sent to the State Reformatory for having engaged in masturbation, and in 1922 (Barnett v. State) where a heterosexual couple caught engaging in sodomy were imprisoned and labelled "moral degenerates" and "sexual perverts" in official judicial documents.[4]

In 1939, the General Assembly passed a "psychopathic offender" law, under which those convicted of sodomy could be sentenced to life in a mental health institution and were not permitted to be released, even if they were "cured", until the expiration of the minimum term for which, if he or she had been imprisoned, the prisoner would be eligible for parol. An appellate court, ruling in 1944 in State v. Forquer, held that cunnilingus fell out of the sodomy statute's scope. A landmark 1957 case (Johnston v. Johnston) resulted in married couples being exempt from prosecution for sodomy: "the private moral relationship between husband and wife are concerned (as to either cunnilingus or fellation [sic],) it is certainly one that rests entirely in the minds of the two of them"; Ohio being the first state in the U.S. to do so.[4]

In 1972, Ohio became the eighth state to repeal its sodomy statute.[5] Nevertheless, it remained a misdemeanor to express romantic or sexual interest to another person of the same sex. However, in 1979's State v. Phipps, the Supreme Court of Ohio narrowed that provision to cover only cases in which the proposition was "unwelcome".[6][7] The broad discriminatory nature of the application of Ohio's "unwelcome" importuning[8] law was illustrated in State v. Thompson. In 1999, Eric Thompson had made a sexual pass at a jogger and, after the jogger declined, continued on his way.[9][10][11] The jogger contacted the police, however, and Thompson was arrested and sentenced to 6 months in jail.[9][10][11] In December 2000, the Ohio Eleventh District Court of Appeals reluctantly upheld the trial court decision.[12] In its decision, the Ohio Eleventh said,

What is not clear is why [the law] would only apply to same sex solicitation and not to opposite sex solicitation ... It is inherently inconsistent for the Ohio legislature to now criminalize homosexual solicitation after it has chosen to decriminalize homosexual conduct between consenting adults.[12]

In May 2002, the Supreme Court of Ohio unanimously overturned Thompson's conviction,[9][10][11] writing

It is well settled that "the First and Fourteenth Amendments forbid discrimination in the regulation of expression on the basis of the content of that expression." Carey v. Brown (1980), 447 U.S. 455, 463. Accordingly, we find that R.C. 2907.07(B) [i.e., Ohio's anti-gay importuning law] is facially invalid under the Fourteenth Amendment to the United States Constitution and Section 2, Article I of the Ohio Constitution. We therefore reverse Thompson's conviction.[10]

As part of a 2003 overhaul to the Sex Offender Registration and Notification Law (SORN), Ohio repealed its anti-gay importuning law.[13]

On June 26, 2003, the United States Supreme Court ruled in Lawrence v. Texas to abolish all remaining sodomy laws and statutes nationwide.[14]

Recognition of same-sex relationships

Map of Ohio counties, cities, and villages that offer marriage and/or domestic partner benefits either county-wide or in particular cities.

  City or village offers marriage and/or domestic partner benefits

  Marriage and/or county-wide partner benefits through domestic partnership

  Marriage only. County, city, or village does not offer domestic partner benefits

Marriage

Same-sex marriage has been legal in Ohio since June 2015.

Defense of Marriage Act

Representative Bill Seitz introduced the Defense of Marriage Act in the state House of Representatives in 2003. It passed the House by a vote of 73–23 in December 2003 and the Senate in an 18–15 vote in January 2004.[15] It was opposed by eleven Democrats and four Republicans in the Senate. Governor Bob Taft signed the legislation on February 6, 2004. The legislation was enacted in the aftermath of the Goodridge decision on November 18, 2003 in Massachusetts.

Constitutional amendment

Ballot Issue 1 of 2004 was a constitutional amendment initiated by the General Assembly and approved by a margin of 61%–38%. It amended Article XV, Section 11 of the Ohio Constitution to define marriage as being between "a man and a woman", thus excluding same-sex couples. Official supporters were the Ohio Campaign to Protect Marriage and the Traditional Marriage Crusade. The opposition was led by Ohioans for Fairness. Additionally, both Governor Taft and Representative Bill Seitz opposed the amendment on the grounds that it was too vague. This amendment to Ohio's Constitution was later invalidated by the United States Supreme Court in Obergefell v. Hodges.[16]

Obergefell v. Hodges

On June 26, 2015, the United States Supreme Court ruled in Obergefell v. Hodges that Ohio (along with Michigan, Kentucky and Tennessee) could not deny same-sex couples the right to marry, or refuse to recognize their marriages performed elsewhere; protected under the Fourteenth Amendment to the United States Constitution. This ruling reversed a November 2014 decision by the United States Court of Appeals for the Sixth Circuit, effectively legalizing same-sex marriage in those states and nationwide.[17]

Domestic partnerships

Nine cities, the village of Yellow Springs, and the counties of Cuyahoga and Franklin offer domestic partnership registries.

Adoption and parenting

Ohio permits single LGBT individuals,[18] as well as married same-sex couples to adopt.[19]

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.[20] While there are no specific surrogacy laws in Ohio, the courts have ruled that the practice is legal and surrogacy contracts can be recognized as legally valid. Both gestational and traditional contracts are recognized, though the latter may result in potential legal conflicts and more litigation than the former. The state treats different-sex and same-sex couples equally under the same terms and conditions.[21]

Discrimination protections

2017 Cincinnati Pride parade

Cleveland Pride parade 2017

Ohio statutes do not address discrimination on account of sexual orientation and gender identity. Discrimination based on sexual orientation is prohibited in state employment under an executive order issued by Governor John Kasich on January 21, 2011. He issued a new executive order on December 19, 2018 to include gender identity or expression.[22]

33 Ohio cities and counties have anti-discrimination ordinances prohibiting discrimination on the basis of sexual orientation and gender identity in employment, housing and public accommodations. These are Cuyahoga County,[23] and Akron, Athens, Beachwood,[20] Bexley, Bowling Green, Cincinnati, Cleveland, Cleveland Heights, Columbus, Coshocton, Dayton, East Cleveland, Gambier,[24] Golf Manor,[25] Kent, Lakewood, Medina,[20] Newark, Olmsted Falls, Oxford, Portsmouth,[26] Reynoldsburg,[27] Sandusky,[20] Shaker Heights,[20] South Euclid, Springfield,[28][29] Toledo, University Heights,[30] Westerville,[20] Worthington,[20] Yellow Springs, and Youngstown.[20] Canton bans unfair discrimination against LGBT people in employment and housing, but in not public accommodations.[31] All these jurisdictions account for about a third of the state population.

Amberley, Brook Park, Cuyahoga Heights, Euclid, Garfield Heights, Linndale, Lorain, Maple Heights, Newburgh Heights, North Olmsted, Oberlin, Reminderville, Sheffield Lake, Steubenville, Warrensville Heights and Wickliffe ban discrimination based on sexual orientation in housing.[20]

Others, including Franklin, Hamilton, Lucas, Montgomery, Summit,[32] and Wood counties and Dublin, Gahanna, Hamilton, Laura and Lima, have protections but for city/county employees only.[33]

R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission

On March 7, 2018, the United States Court of Appeals for the Sixth Circuit (covering Kentucky, Michigan, Ohio and Tennessee) ruled that discrimination on the basis of transgender status is tantamount to discrimination on the basis of "sex", as defined by Title VII of the Civil Rights Act of 1964. It also ruled that employers may not use the Religious Freedom Restoration Act to justify discrimination against LGBT people. Aimee Stephens, a transgender woman from Michigan, began working for a funeral home and presented as male. In 2013, she told her employer that she was transgender and planned to transition. She was promptly fired by her employer.[34] The court held that the dismissal was discriminatory and violated federal law. An appeal to the case was heard by the Supreme Court in the 2019 term, concurrently to Bostock v. Clayton County and Altitude Express, Inc. v. Zarda, under R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission. On June 15, 2020, the U.S. Supreme Court ruled that discrimination in the workplace on the basis of sexual orientation or gender identity is discrimination on the basis of sex, and Title VII therefore protects LGBT employees from discrimination.[35][36][37]

Hate crime law

Ohio's hate crime law addresses violence based on race, color, religion or national origin, but not sexual orientation or gender identity. However, since the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act was signed into law in October 2009 by President Barack Obama, U.S. federal law has addressed crimes motivated by the victim's actual or perceived sexual orientation or gender identity. Hate crimes against LGBT people can be prosecuted in federal court

The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, also known as the Matthew Shepard Act, is an Act of Congress, passed on October 22, 2009, and signed into law by President Barack Obama on October 28, 2009, as a rider to the National Defense Authorization Act for 2010 (H.R. 2647). Conceived as a response to the murders of Matthew Shepard and James Byrd, Jr., the measure expands the 1969 United States federal hate crime law to include crimes motivated by a victim's actual or perceived gender, sexual orientation, gender identity, or disability. The bill also removes the prerequisite that the victim be engaging in a federally protected activity like voting or going to school, gives federal authorities greater ability to engage in hate crimes investigations that local authorities choose not to pursue, provides $5 million per year in funding for fiscal years 2010 through 2012 to help state and local agencies pay for investigating and prosecuting hate crimes and requires the Federal Bureau of Investigation (FBI) to track statistics on hate crimes based on gender and gender identity (statistics for the other groups were already tracked).

Freedom of expression

In 2012, 16-year-old high school student Maverick Couch, represented by Lambda Legal, sued the Waynesville Local School District after being told he could not come to school wearing a T-shirt with the words "Jesus is not a homophobe". The board explained their position, "Wayne Local School District Board of Education had the right to limit clothing with sexual slogans, especially in light what was then a highly charged atmosphere, in order to protect its students and enhance the educational environment. Consequently, the high school principal was well within the bounds of his authority to request that the student remove his T-shirt and refrain from wearing the T-shirt in the future."[38] The suit ended in a judgement in federal court in Cincinnati agreed to by all parties to the suit that affirmed Couch's right to wear the shirt to school and ordered the school district to pay $20,000 in damages and legal fees.[39][40]

Transgender rights

Following a 1987 court case, In re Ladrach, Ohio does not allow persons born in the state to amend the gender marker on their birth certificate following sex reassignment surgery.[41] This policy was revised in 2016.[42] Transgender people can however change their legal name and gender on their ID card and driver's license. In order for them to do so, they must submit to the Bureau of Motor Vehicles a court order certifying the name change and/or a "Declaration of Gender Change" form signed by a physician, nurse practitioner, social worker, therapist or psychologist certifying the applicant's gender identity.[43]

In March 2018, four transgender Ohioans sued the Department of Health, seeking to have In re Ladrach overruled and be issued birth certificates reflecting their gender identity. At the time the lawsuit was filed, Ohio was one of just three states where transgender people were banned from amending their birth certificates.[44]

In December 2020, federal judge Michael H. Watson invalidated an unconstitutional policy banning sex changes on an individual's birth certificate within Ohio.[45]

Conversion therapy

A bill to prohibit the use of conversion therapy on LGBT minors in Ohio was introduced by Senator Charleta Tavares in February 2015. The bill died without any legislative action.[46]

Seven Ohio cities have banned conversion therapy on minors:[47] Cincinnati (2015),[48] Toledo (2017),[49] Columbus (2017),[50][51] Dayton (2017), Athens (2017),[52][53] Lakewood (2018), and Kent (2019).

Public opinion

A 2017 Public Religion Research Institute (PRRI) opinion poll found that 61% of Ohioans supported same-sex marriage, while 33% opposed it and 6% were unsure.[3]

The same poll found that 69% of Ohioans supported an anti-discrimination law covering sexual orientation and gender identity. 25% were opposed.[54] Furthermore, 60% were against allowing public businesses to refuse to serve LGBT people due to religious beliefs, while 34% supported allowing such religiously-based refusals.[55]

Public opinion for LGBT anti-discrimination laws in Ohio

Poll source	Date(s) administered	Sample size	Margin of error	% support	% opposition	% no opinion
Public Religion Research Institute	January 2-December 30, 2019	2,160	?	71%	23%	6%
Public Religion Research Institute	January 3-December 30, 2018	2,065	?	68%	26%	6%
Public Religion Research Institute	April 5-December 23, 2017	2,750	?	69%	25%	6%
Public Religion Research Institute	April 29, 2015-January 7, 2016	3,349	?	69%	26%	5%

Summary table

Same-sex sexual activity legal	(Since 1972)
Equal age of consent
Anti-discrimination laws for sexual orientation	/ (In employment; otherwise varies by city or county for housing and public accommodations)
Anti-discrimination laws for gender identity	/ (In employment; otherwise varies by city or county for housing and public accommodations)
Same-sex marriages	(Since 2015)
Stepchild adoption by same-sex couples	(Since 2015)
Joint adoption by same-sex couples	(Since 2015)
Lesbian, gay and bisexual people 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)[56]
Transvestites allowed to serve openly in the military	[57]
Intersex people allowed to serve openly in the military	/ (Current DoD policy bans "Hermaphrodites" from serving or enlisting in the military)[58]
Conversion therapy banned on minors	/ (Some cities only)
Right to change legal gender	(Since 2020)[1]
Equal access to IVF for lesbian couples
Surrogacy arrangements legal for gay male couples
MSMs allowed to donate blood	/ (Since 2020; 3-month deferral period)[59]

See also

• Politics of Ohio
• LGBT rights in the United States
• Rights and responsibilities of marriages in the United States
• Equality Ohio
• Law of Ohio

References

2. "Ohio Marriage and Stepparent law; The Columbus Dispatch". the columbus dispatch. July 5, 2015. Retrieved July 7, 2015.
3. Public opinion on same-sex marriage by state: Ohio
4. "The History of Sodomy Laws in the United States - Ohio". www.glapn.org.
5. 1972 Ohio Laws H.B. 511, Revised Code § 2907.07(B)
6. Eskridge, William N. (2008). Dishonorable Passions: Sodomy Laws in America, 1861-2003. NY: Viking Penguin. pp. 49, 50, 180. ISBN 9780670018628.
7. State v. Phipps, 389 N.E.2d 1128 (Ohio Supreme Court, 1979).
8. Definition: "to make immoral or lewd advances toward". Example: "arrested for importuning a male person in the park". Citation: “Importune”. Webster's Third New International Dictionary, Unabridged. 2018.. Web. 16 Jun. 2018.
9. State v. Thompson, 95 Ohio St.3d 264, 2002-Ohio-2124
10. "Supreme Court Invalidates Same-Sex Importuning Law". The Supreme Court of Ohio & The Ohio Judicial System. May 15, 2002. Retrieved June 16, 2018.
11. "Ohio high court overturns same sex law". UPI.com (United Press International, Inc.). May 15, 2002. Retrieved June 16, 2018.
12. "Ohio 'Importuning' Law May Face State Supremes". GLAPN.com. May 4, 2001. Retrieved June 16, 2018.
13. "Law alters sexual offender policies". The Lantern. August 11, 2003.
14. Lawrence v. Texas, 539 U.S. 558 (2003)
15. Sub. H.B. 272 Archived September 29, 2011, at the Wayback Machine
16. "Ohio citizens approve Issue 1". The Post (Ohio University). November 3, 2004. Archived from the original on October 18, 2014. Retrieved December 6, 2013.
17. "The Latest: Same-sex marriages underway in Ohio". Fox 19 Now. June 26, 2015. Archived from the original on June 27, 2015. Retrieved June 26, 2015.
18. "Ohio Adoption Law Human Rights Campaign". Hrc.org. December 14, 2009. Retrieved November 2, 2013.
19. "Ohio Stepparent Adoption law; Columbus Dispatch". columbusdispatch. July 5, 2015. Retrieved July 7, 2015.
20. "Ohio's Equality Profile". Movement Advancement Project.
21. "What You Need to Know About Surrogacy in Ohio". American Surrogacy.
22. Executive Order 2018-12K, Governor of Ohio
23. 169.21 ANTI-DISCRIMINATION/ANTI-HARASSMENT COMPLAINT POLICY/PROCEDURE
24. "Gambier makes history by passing LGBTQ-inclusive anti-discrimination legislation". knoxpages. May 6, 2020.
25. "Golf Manor Adopts Nondiscrimination Ordinance". PRIZM. January 28, 2020.
26. "Portsmouth city leaders pass mask mandate, anti-discrimination ordinance". WSAZ. July 14, 2020.
27. "Anti-discrimination ordinance passed in Reynoldsburg". nbc4i.com. June 23, 2020.
28. To amend Ordinance No. 91-90, passed March 12, 1991, and commonly known as the Codified Ordinances of The City of Springfield, Ohio, by the amendment of various sections to prohibit discrimination based on sexual orientation.
29. Sexual orientation added to Springfield non-discrimination ordinance
30. "University Heights council passes anti-discrimination law pertaining to sexual orientation". Cleveland.com. June 5, 2020.
31. 547.02 Unlawful Employment Practices
32. "Summit County, Code of Ordinances". The County of Summit appointing authorities are firmly committed to selecting and employing qualified persons for all available positions. Discriminating against job applicants on the basis of race, color, sex, age, religion, national origin, ancestry, veteran status, disability, sexual orientation, gender identity or any other characteristic to the extent protected by law is prohibited.
33. Employment Discrimination Based on Sexual Orientation and Gender Identity in Ohio
34. "Businesses Can't Fire Trans Employees for Religious Reasons, Federal Appeals Court Rules in Landmark Decision". Slate. March 7, 2018.
35. Biskupic, Joan (June 16, 2020). "Two conservative justices joined decision expanding LGBTQ rights". CNN.
36. "US Supreme Court backs protection for LGBT workers". BBC News. June 15, 2020.
37. Liptak, Adam (June 15, 2020). "Civil Rights Law Protects Gay and Transgender Workers, Supreme Court Rules". The New York Times.
38. Martin, Shawn (April 4, 2012). "Ohio teen Maverick Couch takes school to court over 'Jesus is not a homophobe' shirt". ABC15. Retrieved December 15, 2012.
39. Budd, Lawrence (May 4, 2012). "District proposes T-shirt case settlement". The Western Star. Retrieved December 15, 2012.
40. Michael, Gryboski (May 22, 2012). "Court Judgment: Ohio Student Can Wear 'Jesus Is Not a Homophobe' Shirt,". Christian Post. Retrieved December 15, 2012.
41. Levi, Jennifer L.; Monnin-Browder, Elizabeth E., eds. (2012). Transgender Family Law: A Guide to Effective Advocacy. Bloomington, IN: AuthorHouse. pp. 59n58. ISBN 9781468554533.
42. Knight, Cameron (December 16, 2020). "Federal judge slams Ohio's policy against transgender birth certificate changes in ruling". The Cincinnati Enquirer. Retrieved December 21, 2020.
43. ID Documents Center: Ohio National Center of Transgender Equality
44. Moreau, Julie (April 3, 2018). "Four transgender people sue Ohio over state's birth certificate policy". NBC News. Retrieved April 20, 2018.
45. Smyth, Julie Carr (December 16, 2020). "Court Rules Ohio Must Allow Gender Changes On Birth Certificates". Associated Press. HuffPost. Retrieved December 17, 2020.
46. OH SB74 | 2015-2016 | 131st General Assembly
47. "Conversion Therapy Laws". lgbtmap.org.
48. Council votes to ban gay 'conversion' therapy in Cincinnati
49. Toledo City Council approves conversion therapy ban
50. "Columbus Bans 'Ex-Gay' Therapy To Minors". On Top Magazine. Retrieved March 30, 2017.
51. "Columbus Council Bans Conversion Therapy by Mental Health Professionals". Associated Press. Retrieved March 30, 2017.
52. Dayton looks to ban gay-conversion therapy for youth
53. Conversion Therapy Banned in Athens
54. Public opinion on LGBT nondiscrimination laws by state: Ohio
55. Public opinion on religiously based refusals to serve gay and lesbian people by state: Ohio
56. https://apnews.com/article/biden-reverse-ban-transgender-military-f0ace4f9866e0ca0df021eba75b3af20
57. https://www.military.com/join-armed-forces/disqualifiers-medical-conditions.html
58. https://www.military.com/join-armed-forces/disqualifiers-medical-conditions.html
59. McNamara, Audrey (April 2, 2020). "FDA eases blood donation requirements for gay men amid "urgent" shortage". CBS News.